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Thursday, November 27, 2008

NAACP Seminar: Defense Attorney Advice---KEEP YOUR BIG MOUTH SHUT!

Most of the time, people in the criminal justice system need legal advice BEFORE they get in the system. Defense Attorney Tom Jesse of Johnson City, speaking to a community awareness seminar sponsored by the Johnson City-Washington County chapter of the NAACP, said most of us say things and answer the police officer's questions without benefit of counsel, and that makes it difficult to defend them. Among the most important remarks he told the group.. SHUT UP AND SAY NOTHING TO THE POLLEY:

"I am counsel for the defense.. I'm the guy that's supposed to help you get through a system that is frought with peril.. Unfortunately, by the time you get to me, you've already messed it up so badly, I can't hardly fix it."

"I need to give you four sets of facts..
It's the civil results of a criminal prosecution."

"A gentleman with his family in Sevier County.. had just left Dollywood. He's pulled over by blue lights, thinking he must have run a stop sign, or speeding or something. He stops his car, and doesn't do anything that would cause the officer any problem. But he's looking at a drawn weapon, that's pointed at his head. He is dragged out of his car, handcuffed and held for about three and a half hours, until they figure out that it is a mistake."

"I'm also thinking of the case, where a gentleman is stopped for a very minor situation, relating to not having his lights on. He walks from his vehicle, and to a house to make a comment while the officer is writing his ticket, and it ends up in a very upsetting, physical scuffle, charges, fights between the officer and the individual, the neighborhood gets all upset."

"I'm thinking of two clients, both of whom have been under arrest, who unfortunately while under arrest, hung themselves in a mental health facility or in the jail within 24 hours."

"I'm thinking of two young men, coming from the country club here in Johnson City, about a quarter to 8 on a Tuesday night, were stopped, ended up with both of them in jail, over what ultimately was no violation of law."

"I'm also thinking of 6 people, coming down Interstate 81 who were stopped and charged with various drug offenses in Sullivan County."

"You tell me, which of those groups of people were black, which were Hispanic, which were white. You tell me, which officers got up that morning, which prosecutors got up that morning.. 'I really don't like Johnny Jones, so I'm going to go find him today and arrest him.'"

"I will tell you there is racial profiling..there is no question, there is racial profiling. There's also male-female profiling, there's also, "you're driving an old, rattle-trap car in a million-dollar-a-house neighborhood" profiling.. there are lot of profiling, every one of you in this room that goes fishing, knows you "try to go where the fish are." You look at little things like where the bugs are buzzing, and you think the fish are biting where all the bugs are."

"Law enforcement doesn't just get up in the morning and decide, well we'll just go out there and hunt down crime, they fish.. they know where the crime is, you know where the crime is. They get up and go fishing where the crime is."

"One way as a defense, is.. don't be there. Your BEST defense is never having to see me, or a police officer ANYWHERE. That is your best defense. We talk about substance abuse.. I'm an 18-year-old Black or Hispanic male.. I've got all the mixed blood, I am a MUTT. I'm gonna go make 7 bucks an hour, selling hamburgers at McDonald's, or I can make 15-hundred dollars a month, selling drugs. It's not just addiction.. This conference we're having here today ought to next be about finding someplace to put people to work. So much of crime, from my perspective, is economics. It is substance abuse, no question about it. Economics, substance abuse, and being JUST PLAIN STUPID."

"We all are just a little bit stupid every once in a while. "I'd like to take back that smack I just gave my spouse." 20 years ago, you hit your spouse and you call the police department, and they say, 'don't do it again, we've got too much to do and too little time and too little manpower to come out and handle it.' These days, domestic crime is what I call a 'designer crime' because the state legislature and law enforcement has decided 'we are going to stop this kind of crime.' So, if they come out nowadays to your house on domestic violence, somebody's going to jail."

"When men come into my office to get divorced, I tell 'em, 'when she starts yelling at you, get up and get out of the house.' I tell the woman the same thing. I have just got a 68-year-old woman out of jail, who smiled at me and said 'I'll go back to jail for another 24 hours if you let me hit him again in the head with a telephone.' That is the truth."

"There are certain things you need to realize that I cannot help you with, as a defense attorney. I can do the best I can to get you through the system, but I can tell you it is better in reference to a crime, that sometimes it is easier to work out a fair plea of a violent crime, where you've lost your temper, fist-fought with your neighbor or something, versus if you're caught with a DUI. For example, if you come in and say 'I need to hire you Mr. Jesse for my DUI, and I look, and they've taken the Breathalizer and they blew 2.4, and I ask them 'where were you?' They say, 'well I was up against that tree that I hit, drunk, going home at 2:30 in the morning.. there's little I can do. I tell them to keep their attorney money."

"Here's what you need to do for a defense, if you are charged with something, or if you think you are going to be charged.. Law enforcement is going to watch you closely, and when you say 'I need to talk to a lawyer,' they'll say 'what do you need a lawyer for? If you're guilty, we just want to talk to you.' They have every right to tell you 'we just want to talk.' If you have ANY reason to believe you've done something wrong, don't talk to the police officer. I realize it makes it harder on him to get his job done, but DON'T TALK TO THE POLICE OFFICER. EVER. What I hate as a defense attorney when I get hired, is.. there's already a four-page statement that they've written, where you've told them about the situation. It is your right to talk to them, you feel remorseful, you've done something, but sometimes you will probably be guilty of some charge, but you'll talk your way into a worse situation. So, DON'T TALK TO THE POLICE OFFICER about anything that has to do with the investigation. Say 'officer, respectfully.. I'd like to call my mom, my dad, my lawyer, my minister, can I call somebody.. I just don't feel comfortable, speaking to you right now."

"The other thing is.. police officers are human beings, I don't care, white, black, hispanic or whatever.. male, female.. The minute you smart off to them, you're gonna get smarted off to, right back. Everybody's got pumped-up adrenaline, and everybody's thinking 'O-K, he's a smart you-know-what, we're gonna have problems with him.' There are no percentages in arguing with the guy who has just arrested you for running your car into a tree because you're drunk. There are no percentages in even being disrespectful. Just be a good public relations person. I'll go to an officer and say 'officer, this is a rare situation, this gentleman has never done something like this.. if that officer has a pretty good feel for you when he worked with you on the scene of whatever happened when he arrested you, you've got a much better chance of me being able to say, 'can we work this out.' Just for your own protection.. KEEP YOUR MOUTH SHUT. It will be intimidating.. you will be scared. You'll want to say stuff to try and convince them that you didn't do anything. Every once in a while, I've had an officer look at me, after we've got the charges dropped, MONTHS later, and say 'well if that guy had just told me, I wouldn't have even charged him.' You want to JUST KEEP YOUR MOUTH SHUT."

"After you get into the system, you also want to keep your mouth shut in jail, too. Keep your mouth shut on the telephone in jail. You don't need to call the neighborhood, and start complaining about what's happened to you. Whether it was right or wrong that you were charged, keep your mouth shut and get an attorney. The public defenders' office has some exceptional lawyers. The reason they are good is, they do this stuff all day, every day. The problem is, they have WAY too much to do. Judge Lauderback in Bristol usually announces that 'if you want an appointed lawyer, we'll be happy to give you one. He's probably not going to spend more than two seconds with you because he doesn've have enough time, and if you're really concerned about your case, you need to get a private attorney.'"

"So here we are, all the way back to the economics of it all. The lack of jobs, why do I sell drugs? You write a 25-dollar bad check that I don't even need to represent you on because it was a bad check, but you don't go down and take care of it quick enough and it gets in the criminal justice system.. you end up on probation, paying 30 bucks a month for six months.. you pay 200 dollars in court costs.. you may have paid your lawyer something, and the bottom line is.. you wouldn't have written that 25-dollar check anyhow, but you're poor or you're out of money. Those kind of things can get in the system, and a lot of that stuff has no way of getting worked out.. There's your signature on the check, there's no money in the account, says the bank."

"Think about those activities and how to avoid them.
Hire one that does CRIMINAL work.
If that lawyer tells you 'I'm going to get you off, because I know the prosecutor, I know the judge, I know the officer.. HIRE ANOTHER LAWYER."

"Back to that circle of people I was talking about.. is there racial profiling? I've always told my kids to be responsible if you're out and about. So far, they have not been racial profiled. But at 2:30 in the morning and they're driving through Johnson City, think about it. There are not many cars out at 2:30 in the morning. Police officers know, about the only people out at 2:30 in the morning, half of them are drunk. Those officers will tell you 'there's a bad apple in every bunch' and there's some cop who's just set outside the Electric Cowboy, and they're gonna know that 3 out of 4 guys that come out of that place at 2:30 in the morning are going to be drunk. It's like shooting fish in a barrel."

"When I tell you not to talk to the police officer, you also have the scary opportunity NOT to take the Breathylizer. Every defense lawyer will tell you 'do not take the Breathylizer, because it guarantees that if you have been drinking, they will convict you. If you don't take the Breathylizer, of course, you lose your license for six months, no question. But you may not be convicted of a crime."

"I truly believe in the jury system, but it's not cheap, guys. For me to carry you through trial, is an expensive proposition, BUT.. to be convicted of a DUI first offense, you'll pay a 350 dollar fine, you'll pay 250-300 dollars in court costs, you'll pay 100 or so dollars for the drug and alcohol program, you'll pay 30 to 50 dollars a month probation fee for a year.. whatever your present car insurance is, triple it for the next three years.. You will have a limited driver's license during that time. It just doesn't pay to drink and drive."

"Profiling occurs to me, because generally, you are different. Obviously, if you, as a Black person, are out in the Ridges at 2:30 in the morning, you KNOW what everybody's going to be thinking.. you might have just dropped off Dr. Smith out there, but if you get stopped coming out of there, you'll be profiled."

"The two boys coming out of the Johnson City Country Club at a quarter to eight.. were black. they were members of the basketball team over here at ETSU.. they got stopped, and I won't name the officers, but I think he saw them coming out of the country club and racially profiled them.. two black kids, coming out of the Johnson City Country Club. I don't know whether they weaved a little bit on the road, but I do know they had absolutely NOTHING to drink. They get stopped.. one goes off, yelling. By the time it gets done, the gentleman who was quiet, the driver.. the officer figures out he doesn't have insurance, his license is expired, and the tag on his car is expired. The believability goes down the tubes."

"The gentleman in Sevierville, with the gun in his face?.. white man. Two white children. Got stopped down there, dragged out of his car and handcuffed. When the police dispatcher put out a call, saying there was a stolen car, she accidently reversed the numbers on the tag. My guy had the tag of the description she put out. Total mistake, TOTAL MISTAKE. He was crying, begging them, telling them the car wasn't stolen, please call Southwest Virginia.. they didn't believe him. When they finally figured it out, the officer who arrested him DID NOT HAVE HIS HANDCUFF KEY. We were 45 minutes getting his hands out of those handcuffs. It was a horrible situation, with your 6 year old and your 4 year old, sitting in the car, watching. We filed a civil case in federal court, and the judge dismissed it.. we appealed and the 6th U.S. Circuit Court of Appeals, and the court said if it were a FAIR mistake, police are allowed to make FAIR mistakes. We did settle that case, where the state did not want to go back up on appeal, and they paid some money in that case."

"The whole thing about profiling, in defending you.. what are you doing, and where are you, when you're stopped? I can make a case of unfairness with police, prosecutors, your boss.."

"Had a man come by to see me, just beside himself.. told me he'd just been fired.. an 18-year employee of a company. I said wait a minute.. you're not over 40 so there's no age discrimination.. you're not crippled, you're not black, you're not a woman, you don't have this, that or the other.. you're a white male under 40.. there's no discrimination, what do you want? He said, it's not fair, I got fired. I said 'what did you get fired for?' He said I got an email with a racial slur joke, and I laughed.. didn't think anything of it.. sent it to two of my co-workers, maybe three. It wasn't out there 12 or 13 minutes, and Human Resources called me to the office and told me 'you're fired.' Let me tell you the NEW way everybody's going to get in trouble: don't put stuff in a computer, that you don't want somebody else to see someday. If you can't show your little grey-haired mama what you've put in that computer, don't put it in there. Somebody's gonna find it, and you're gonna have problems."

"The hardest part of my job is.. I cannot tell you what to do as a defense attorney. I can recommend things, but I can't tell you what to do about a charge you're facing. There are times I have to look at a defendant and say 'you have a right to stand on what you believe, I've got you the best possible plea deal you can get anywhere, and you can take your chances. I cannot make that decision for you. If you ever find yourself in the criminal justice system, don't ever let some criminal defense lawyer force you into doing something you don't want to do, but be willing and prepared to suffer the consequences of whatever you decide."