Tactics for a Successful Defense of a Criminal Case

By MARK J. SULLIVAN

Mr. Sullivan is a prominent criminal defense attorney in Palm Springs. For questions about your case or this article, contact Mark Sullivan at 760/3271529
Toll free: 1888/4526555.
Email: trials1@earthlink.net

Clients choose their lawyer based upon a number of factors, but one is most common. Everyone wants to know what the attorney is going to do, and how their defense is going to be conducted.

The reason I have been successfully defending criminal cases for the past 30 years is all too simple. Hard work. With hard work, we develop and implement a game plan, and we stick to it.

GAME PLANS
For every case, we start out with the same basic game plan:

• Study the discovery the prosecution gives us;
• Force the prosecutor to give us everything we need;
• Interview the client -- with emphasis on weakness in the prosecution's case;
• Perform our own investigation;
• Research and know the law;
• Devise a defense strategy (or 'theme' for the case);
• Outwork the prosecutor;
• Prepare the case for trial.

STUDY THE FACTS
This means that we read carefully all of the police reports and documentation that the prosecution gives us. That provides us with a starting point, but one must keep in mind that police reports are self-serving documents, written by them to justify the police officer's conduct. Most of the time, they do not give a balanced or fair presentation of what actually occurred. But sometimes they can provide clues to areas which need independent investigation. The lawyer that knows the case better than his opponent is more likely to prevail.

INVESTIGATE THE CASE
This means that we use our own investigator to look into the facts of the case, and to prepare effective cross-examination research into the motive and reliability of prosecution witnesses. Sometimes a frustrated prosecutor will argue to the jury that the police officer is not on trial here, it is the defendant. My response is that anyone who testifies against my client is on trial, because I put them on trial. The law allows me to do that, and I do. Their motives, their ability to recollect, and their honesty and reputation are on trial.

RESEARCH THE LAW
This would seem obvious, but one would be surprised how many times cases are handled without a thorough research of the law. Laws changes from time to time, and it is very important to keep abreast of the changes. There are so many different procedural and substantive aspects to even a simple case, a good litigator must be on top of all the changes.

DEVISE A STRATEGY
Every case has a theme. A good lawyer will create one which keeps the judge's and the jury's interest. The best theme is one that captures the imagination of the jury. Lawyers sometimes get "shotgun" defenses from their clients. For example:

• They weren't my drugs;
• The cops violated my rights;
• They only found residue;
• I'm not a criminal;
• The cops were watching me;
• They weren't for sale;
• I was at the wrong place at the wrong time;
• I didn't know they were illegal;
• I wasn't read my rights;
• This is my first offense;
• I don't have a record;
• I have a drug problem;
• I don't sell drugs, and I'll never sell drugs again.

A successful attorney knows that he can't attack a case with a shotgun approach, although he starts with many options. But eventually he has to devise a consistent and dynamic defense theory, usually one designed to expose the weaknesses in the prosecution's case, and this usually takes time and effort.

FILE MOTIONS
The usual motions we file involve compelling discovery (forcing the prosecution to expose more of their case than they wanted), obtaining exculpatory evidence, and streamlining the prosecution's case (dismissing certain counts).

The fewer charges the defendant is facing, the lower his exposure, the less evidence is admissible, and the better chance the defense has of getting an acquittal. But there are a number of common motions, specifically those to suppress evidence, litigate the search and seizure issues, to exclude evidence of involuntary confessions, to dismiss for procedural violations, such as speedy trial, due process, disclose confidential informants, disqualify judges or prosecutors, etc.

PREPARE FOR TRIAL
We prepare every case as if it is going to trial, even those cases that we believe (confidentially) will not go to trial. This is the best practice. When the client tells us that he has no intention of going to trial and risking a guilty verdict, we still prepare as if we are going to trial. When cases are litigated vigorously before trial, plea bargain offers get better.

Prosecutors have many things in common, although some are worse than others, but all prosecutors are lacking, to some degree, in zeal, nerve and intellect. The more work a defense attorney can force upon a prosecutor, and the more creative he can be in his motions, especially those that have a downside risk to them, the more likely the prosecutor wants to get rid of the file, reaping favorable results for the defense. So the best strategy is to scare the prosecutor into thinking he's going to lose, outsmart him or outwork him. Preferably, all three.

The cases that do eventually go to trial stand a much better chance of success if they are thoroughly litigated before trial. The defense attorney has to know more about the case than the prosecutor if he wants to win.

BOARD CERTIFICATION
Criminal Law Specialists comprise the very elite of all criminal lawyers. Of all the lawyers in California who practice criminal law, less than one half of one percent are certified by the State Bar of California Board of Legal Specialization. Why?

One reason is that very few lawyers possess the eligibility requirements to become Certified Specialists in their field. The qualifications required for Legal Specialization are very demanding, and candidates are required to undergo a thorough investigation and must be found to possess the following ethical characteristics and professional accomplishments:

• Candidates must:
  • Be of the highest moral character;
  • Possess a reputation for excellence in their practice and ethics;
  • Have extensive experience in their field;
  • Demonstrate a record of superior performance in their field;
  • Be approved by the judges in their area of practice;
  • Be recommended by the prosecutors whom they have faced;
  • Usually have authored important legal articles and books;
  • Often have experience teaching or lecturing in legal seminars;
  • Pass a very demanding written examination;
  • Maintain a rigorous regimen of continuing legal education;
  • Be subject to a thorough investigation of their practice and ethics.

COMMUNICATION BETWEEN LAWYER AND CLIENT
By far, the most common complaint that clients have is that their lawyer doesn't return their phone calls. Not with me. I return clients' telephone calls as soon as possible. But I don't stop there. I am one of the very few criminal defense lawyers who publishes his home telephone number. In case of an emergency, clients may call me at home, even collect calls from the jail. Of course, if it is not an emergency, it is preferable that clients call at the office, and if their question is not answered, to leave a message. Most clients do not abuse this accommodation.

I even provide my clients with a cell phone number. The only times I don't answer it is when I am in court, or when I am preoccupied with another important matter. I believe that communication between a lawyer and a client is of utmost importance.

EDUCATION AND TRAINING
As far back as high school, I knew that I wanted to be a criminal lawyer. When I read Harper Lee's To Kill a Mockingbird, I decided I wanted to emulate the novel's hero, Atticus Finch. I attended the University of Massachusetts, and in less than two years, graduated magna cum laude in 1972. From there I went to American University Law School, and graduated first in my class in 1974. I took a position with the San Francisco law firm of Cartwright, Saroyan, Martin & Sucherman, Inc., where I was taught trial lawyer skills. I then worked as a civil trial lawyer in Los Angeles for two years before I finally opened my law practice in Palm Springs in September, 1981.

I have authored articles in legal publications, have lectured on cases involving everything from child molestation, drug trafficking and murder, and have been appointed judge pro tem in the Riverside and Los Angeles County Court systems.

GOING TO TRIAL
As a Board Certified Criminal Law Specialist, I have the training, experience and competence to take just about any case to trial. I feel that it is important to take the position that there are no hopeless cases. Every case can be defended, even in the face of a confession.

Whenever a case goes to trial, there is usually at least one surprise. Witnesses fail to show up to court, they testify differently than expected, sometimes they admit that they were being less than honest when first questioned, etc. Evidence sometimes is admitted or excluded by a judge's ruling which comes as a surprise to the attorneys, and this can cause a party's case to be seriously damaged.

Because these surprises can effect either side, the party which has the better and more experienced trial attorney is better equipped to handle the unexpected, and use it to his or her advantage. I litigate cases more often and more vigorously than other defense attorney, and am therefore better equipped to handle surprises than my opponent.

© Copyright 2001