From the blog Barking up the wrong tree:

A threat is "I will do something that hurts you even if it’s bad for me." A warning is: "This serves my interests and is bad for you." It’s better to try to convert your threats into warnings. Threats are no good, warnings are.

In criminal cases, as with all things in life, obtaining a good deal comes only from a position of strength. This is why prosecutors give attorneys better deals than they give pro se defendants; I can credibly tell a prosecutor that a motion to suppress serves my interests and is bad for his case. You probably can’t.

And prosecutors hate to lose cases before trial; if I win the suppression motion, the prosecutor probably loses his case outright. Whenever you have a credible warning with at least a uncertain outcome as the consequence, your case is ripe for a good deal, a bargain.

Negotiating plea bargains. is a post from: Practical Law | Utah Criminal Defense Blog

By giving cops the one fingered salute.

An Oregon man exercises his free speech rights… is a post from: Practical Law | Utah Criminal Defense Blog

That’s what the Sixth Circuit Court of Appeals held in United States v. Wilson:

“[T]he court learned that Wilson had been staying at the “historic Brown hotel” in downtown Louisville throughout the trial, at a cost of roughly $10,000, after turning down the government’s offer of free accommodations. R.229 at 5. Further inquiry revealed that, by early 2007, Wilson was not a traditional candidate for free legal services: His income in 2007 totaled roughly $134,000; he lived in an exclusive section of San Francisco, where he paid $2,300 per month in rent; he has no dependents; his discretionary income in 2007 allowed him to spend at least $18,000 on the kinds of restaurants and wineries not known for catering to indigents; and Wilson’s friends had created a $44,000 fund to pay for his legal services in the case.”

Because of those facts, the district court ordered Wilson to pay for his defense:

“Recognizing that this was not the type of person Congress had in mind when it authorized the government to provide legal services to indigent criminal defendants, the district court was not pleased. After further factual investigation, it ordered Wilson to pay $52,305 in “reasonable monthly payments” for the costs of the public defender’s services.”

The Sixth Circuit concluded with:

“Happily for Wilson, the fee was worth it, as he was acquitted on all charges. Unhappily for Wilson, the district court did not abuse its discretion in ordering him to pay for the representation.”

If you can afford it, you have to hire an attorney. is a post from: Practical Law | Utah Criminal Defense Blog

Yesterday, the Supreme Court of the United States held that after you invoke your right to an attorney—which prevents police from questioning you—after 14 days, police can question you.

Confused? Let’s start at the beginning.

In 1966, in Miranda v. Arizona, the Supreme Court ruled that before interrogating a suspect, police must inform him of his right to remain silent. You’ve seen Law & Order, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.…” Those are your Miranda warnings.

In 1981, in Edwards v. Arizona, the Supreme Court held that when a suspect in custody asks for an attorney under his Miranda rights, police have to stop questioning him and cannot ask him to change his mind.

Fast forward yesterday, to Maryland v. Shatzer. In that case, police arrested a man who then asked for an attorney; terminating his interrogation. Yet three years later, the police question him again and this time he admits to the crime.

His attorneys take the case to the Supreme Court. They argue that he invoked his right to an attorney and therefore the police interrogation was unlawful and his confession should be excluded. A unanimous Supreme Court held that the Edwards rule expires; a majority held that it expires 14 days after a suspect is released from custody.

What does this mean, practically speaking? If you are arrested and ask for an attorney, the police will probably let you go at some point. 14 days after they do, you’ll get a call from a friendly detective that just wants to chat… someone that is so sorry about the whole misunderstanding. After you feel nice and warm and fuzzy, you’ll probably say something that gets you in trouble.

Police will make repeated attempts to talk suspects. Criminal defendants can—and should—reinvoke their right to an attorney. Most importantly, never try to talk your way out of trouble with the police, that’s your attorney’s job.

You have the right to an attorney… for 14 days is a post from: Practical Law | Utah Criminal Defense Blog

If you punched someone in the face 12 times, the law considers that 1 assault.

If you steal 12 items from someone’s house, the law considers that 1 burglary.

What about a drive-by shooting where 12 shots were fired at a house? Is that 1 crime or 12?

In my client’s case, the State argued it was 12 separate crimes. Why? Because then they’re able to throw the book at someone and show that they’re tough on crime.

But in Utah, that’s not how it works. Where there is “one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense.” (State v. Irvin, 2007 UT App 319, ¶ 18, 169 P.3d 798.) That’s the law. It’s called merger.

Today, we argued this doctrine before the court. Some people would call this a “technicality,” I call it the law. Fortunately, so did the judge. The court reduced my client’s maximum potential sentence by 55 years. I call that a win.

12 Shots, 1 Crime or: It’s the law, stupid. is a post from: Practical Law | Utah Criminal Defense Blog

Yesterday, Midvale charged my client with a nonexistent crime. It formally charged my client with “refusing to submit to a chemical test.” The problem is, that’s not a crime.

In Utah, if you refuse a chemical test (breathalyzer, blood, or urine test—NOT Field Sobriety Tests, you can refuse those) the Driver’s License Division can suspend your license. Yet there’s no criminal penalty; no fine, no jail time. Don’t believe me? Check it out yourself by reading the law.

Amazingly enough, that doesn’t prevent the government from charging you with a crime. And unfortunately, my client had to spend money by retaining me to defend against a nonexistent crime.

My client was charged with a nonexistent crime. is a post from: Practical Law | Utah Criminal Defense Blog

“To… not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues” – Sun Tzu

People ask me what to look for in an attorney. Whether it’s family law, litigation, or a criminal case, I always say the same thing: Look for someone who prepares.

How do you know if someone prepares? Easy, ask. But you need to ask the right question. If you ask, “Do you prepare for trial?” every attorney will say “yes.” A more telling question is “What did you do to make sure you would win your last trial?”

You should hear something like, “I interviewed my client and reviewed documents so I would be familiar with the facts of the case.” Or “After I understood the facts, I looked for legal areas we could exploit and I filed several pre-trial motions.”

Preparation is the key to winning. Everything else is just luck.

Looking for an attorney? Look for someone who is prepared. is a post from: Practical Law | Utah Criminal Defense Blog

People like to connect the dots. We naturally explain how things happen, how the world works. For instance, when we meet tall people, we assume they have tall parents. One piece of data—someone’s height—leads us to a cause, tall parents.

How does this relate to criminal defense? A jury needs to understand why the government charged you with a crime. They need to see why it’s reasonable to believe you didn’t commit a crime. And good trial attorneys do this with stories.

Not guilty verdicts come from interesting and believable stories. Three weeks ago, I defended a man against a traffic ticket. Not the crime of the century, but he was upset the government charged him at all. It charged him with improper lane travel and reckless driving. Why would the government do this?

According to the prosecution’s story, my client violated numerous traffic laws before a plain-clothed officer pulled him over; for safety’s sake. Yet our story was completely different. We told the jury about the officer’s  fit of road rage.

As both parties agreed, my client cut off a policeman. Yet the government claimed this was my client’s latest traffic violation after a string of observed offense. Sound plausible, right?

Wrong. If the policeman saw an aggressive driver, why wait until he was cut off to do something about it? The officer didn’t have a good answer and agreed that the general public deserves vigilant protection. And what about the van that pulled onto the street without a signal causing my client to swerve and avoid a collision? The officer saw it pull onto street but blamed my client for not letting him in. The problem is, you don’t have a duty to let anyone into your lane of travel.

But at the time, the officer didn’t care. As officers often do, this one lectured my client for 10 minutes before giving him a ticket. With those facts on the record, the jury understood why the officer gave my client a ticket: Not because my client was reckless, but because the officer was angry.

We told the jury our story and they understood. Not Guilty.

Good trial attorneys tell stories. is a post from: Practical Law | Utah Criminal Defense Blog

Today, I had a client write me an email which said “I just can’t wait for this to be over.” While I understand this sentiment, my advice is be patient.

In the real world, cases rarely get better with time. The government rarely finds new evidence which hurts your case. Instead, memories get worse, people forgive, and cops retire. All of these things help you win.

So endure. Having criminal charges hanging over your head is never a comforting thought. Still, having a criminal conviction is worse. If you can endure in the short term, you’re likely to benefit in the long term.

Be patient. is a post from: Practical Law | Utah Criminal Defense Blog

I wouldn’t. And I suspect most of you wouldn’t either.

Yet some of you might be teetering, so what if I told you that the 26 years you had to spend in prison were between the ages of 17 and 43? Some of the best years of your life, gone. $12 million dollars doesn’t seem like much given those facts, does it?

Now let’s add one more layer of complexity: You didn’t get to choose this fate; prosecutors framed you, convicting you of a murder you didn’t commit.

That is exactly what happened to Terry Harrington. I blogged about his case reaching the United States Supreme Court. Yesterday, he (and another framey) reached a settlement with Pottawattamie County, Iowa for $12 million dollars. And despite this victory, I can’t help but feel a bit sad for Mr. Harrington, especially after reading his own words. A then 18 year old Harrington said at his sentencing:

I just want you to know that no matter what happens, I know I’m innocent, and as long as, you know, I feel that inside, then I’m going to keep on fighting because I know I can’t see myself locked up for the rest of my life for something I didn’t do . . .. I feel I was judged by the color of my skin and not the content of my character, and I’ll always feel that way until I get, you know, the kind of verdict the testimony shows, and that’s innocent or not guilty as they would say in the courtroom.

Good luck Mr. Harrington, I’m sorry there’s not more we can do for you.

Would you spend 26 years in prison for $12 million? is a post from: Practical Law | Utah Criminal Defense Blog