TOP 10 WAYS YOU ARE KILLING YOUR DEFENSE

TOP 10 WAYS YOU ARE KILLING YOUR DEFENSE

1. You talked with law enforcement.

This is the number one mistake, without question or hesitation. STOP IT. It doesn’t matter if you are innocent, guilty, a little guilty, not guilty of what the allegation is, etc. Two reasons the police want to talk with you: (1) They can’t make the case against you without a confession, or (2) They already have a case against you, and they just want to put the nails in your coffin. Police use the Reid interrogation technique. I would guess it is second only to torture in the number of false confessions it generates.

Police Lie. It is perfectly legal for police to lie to you during an interrogation to get you to confess. They will lie about the evidence against you, what witnesses said, what they know, what the allegation is, anything and everything to gain the advantage necessary to get you to confess. They likely lied to get you to come in and be interrogated in the first place.

A client just today called me up and stated the Detective told a family member that since neither his lawyer nor he would cooperate and come in and be interrogated, they were “issuing an arrest warrant” and were going to arrest him. He then asked “Why shouldn’t we go in and speak with the Detectives? They won’t arrest me if I cooperate.” The client has read my book, reviewed the Top 10, has been told countless times not to ever speak to the police, yet there he was, practically begging to go in.

Folks, police do not issue arrest warrants in Oklahoma, complete lie. Refusing to waive your rights and refusing to be interrogated does not form a basis for probable cause to arrest a citizen, another complete lie by the police. To infer that if the client comes in and is interrogated he won’t be arrested, is also a complete lie.

If the police are coming to arrest my client, it is because they already have the evidence to make the arrest and they already have probable cause to make that arrest, or a Judge has issued an arrest warrant after the DA’s office has approved charges.

The police told the family member these lies knowing it would get back to my client. They are provoking and inciting the very emotions, fear, and expectations we see with this client today. The client knows better, but fear has gripped him, and now he is acting irrationally. Fortunately, the client called before they marched down to the police station and were interrogated.

2. You talked to Department of Human Services (DHS).

“But if I didn’t talk with the DHS worker, she said she was going to take my children into protective custody.” You don’t know what to do. You don’t want to lose your children, they are the most important thing in the world to you. It is a terrible situation DHS has put you in.

DHS, second only to DPS, is the most dysfunctional, heavy handed, incompetent, power hungry, know nothing bureaucrats in Oklahoma. They rip more children out of homes without cause than they do to help children. They make you want to scream, and they make you feel helpless. DHS is a broken agency and just plain evil.

You cannot do anything to help your children or to see your children sooner if you are (1) charged with a crime, (2) in jail, or worse (3) in prison. Talking with DHS is just like talking to the police, but usually worse. Anything you say to DHS can and will be used against you in both juvenile court (placement and custody of your child) and criminally in District Court. Why is it worse? The emotion of your child being ripped away, the interview sometimes not being recorded, having to rely upon the notes of the Agency employee to form the summary of your interview, misstating or misrepresenting your words, injecting their screwed up opinions of you into their reports, etc. Rights? Not when dealing with these jerks.

It is a terrible situation, but do not talk to them. They are going to take your children anyway. They already think you are guilty, and you can’t say anything to convince them otherwise. Focus on keeping yourself out of prison. It is analogous to the safety briefing on a plane when they tell you if the cabin loses pressure and the masks fall from the ceiling to put your mask on first and then your child’s mask. You can’t help your child if you have lost consciousness. You can't help your child from prison.

3. You talked to anyone that is not your attorney about the accusations, in an effort to seek emotional support (family, friends, co- workers, psychologist, doctor).

If there is a legal issue more emotionally trying than an accusation of a sex crime in a First World Country, I haven’t seen it since I started practicing law in 2000. You can’t sleep, you can’t eat, all joy has been removed from your life and depression and anxiety rule your days and nights. You need someone to tell you that you are a good person, that you can beat this, the case against you is weak, they couldn’t believe you would hurt anyone, that you are loved and supported and not alone on that island.

That short term emotional lift can send you to prison. Every person you speak to about this case can become a witness against you at trial. Loyalties shift, beliefs fade away, trust can evaporate, and those very persons whom you relied upon to lift you up are now the very ones shoveling the dirt on you. Sometimes worse are those who still support you and stand by you, but are now called to testify against you because you made certain

“admissions” during those conversations. You do not want to put your loved ones in a position to be forced to either tell the truth at trial and hurt you or lie on the witness stand, commit perjury, and risk going to prison.

The amount of time that passes from the first allegation until the case goes to trial can take years. Memories fade. People misremember what was told. In their attempts to “help” you, they can more likely hurt your case, simply because they do not understand or appreciate how their testimony fits in with your defense. The list goes on and on.

Remember the “loose lips, sink ships” motto from the WWII movies? Same principle applies here. Loose lips, sink cases. Keep your mouth shut and stay afloat.

4. You talked to the accuser or witnesses in an effort to get them to either recant, change their story, or tell the DA’s office they won’t testify or “prosecute.”

Congratulations, you just committed a felony. So even if you were innocent of the initial allegations, you are in real trouble now. DO NOT SPEAK TO THE ACCUSER OR ADVERSE WITNESSES. Don’t get someone else to do it for you.

I see these problems all too often. Part of the reason is that a lot of these cases are false accusation cases. No sooner than the allegation is made, the accuser wants to take it back. Unfortunately, they have put a huge machine in motion with the words they have muttered and it is damn near impossible to stop that train. The other problem is that so many of these cases involve family members or extended family members.

The clients believe that if they could just talk to the person and get them to tell the truth and recant or tell the DA’s office they won’t prosecute, this will all go away. That unfortunately isn’t what happens. The accuser feels trapped by all of the resources being deployed to “help” them and that if they tell the truth now they will get in even more trouble than if they just ride it out.

A 12 year old does not appreciate the nature and consequences of their allegations, but they are great at telling on people and getting them in trouble. Again, loyalties shift, emotions cloud judgment, anger and motivations you can’t appreciate become the main driver for these accusers all too often. Don’t get yourself in more trouble by trying to unring the bell.

5. You agree to take a polygraph (lie detector) that is given by law enforcement.

If you think because you are innocent that you are going to pass that lie detector, let me disabuse you of that notion right now. If you haven’t figured it out yet, the police are not there to seek the truth. They have been trained to believe the accuser. You are guilty in their eyes and they have one mission, get the evidence to put you in prison. The police

conduct a lie detector test in such a way that it is a virtual guarantee that they will find your answers to be “deceptive.” A lie detector test is not admissible in court, but everything you say during the test is admissible. Although the test is not admissible in trial, the results showing you lied “deceptive” will be very pronounced in the police report. This will be viewed by not only law enforcement, but certainly the prosecutors, the Judge assigned the case, and possibly the media.

If a client insists on taking a polygraph examination, I will have my client sit for the exam with a private examiner. If my client is found NOT to be deceptive in the private exam, only then will a test by law enforcement be considered. If it is conducted there will be certain protocols followed, and if the results are favorable, the DA’s office must agree to not file charges or dismiss the case. Otherwise, why take the exam if can do nothing to advance your innocence?

6. You talked to non-lawyers and seek their advice on what to do and how to proceed or inquired as to the state of the law.

Talking again, and again to someone that is not your lawyer. This is a virtual certainty to either get you in trouble, or confused, scared, angry, or all the above. Whether you are in jail, or you haven’t hired a lawyer yet, or you don’t know if you need a lawyer, or maybe you know someone that “caught a case” or was in prison or went to trial, or maybe you are a professional and you are surrounded by “smart” people all day long and simply want to “test the waters” and get a feel of what people think, all the above will get you hurt.

The only person you can safely communicate with about your case is a qualified criminal defense lawyer. “Jailhouse lawyers” and “smart” people in your life never provide you the attorney-client confidences and knowledge you absolutely need to make intelligent decisions about your case. Privilege does not exist with your buddy, friend, or co-worker. Privilege only exists between you and your lawyer. The law, your options, available defenses, theories, and your chances for success are to be found only within the friendly confines of your attorney’s office. If you want to get bad advice, if you want to be worried about issues you need not worry about, if you want to create a bunch of potential adverse witnesses, then by all means go talk to whomever you want.

You went to a psychologist or license clinical social worker or your therapist, or maybe you talked to your physician about the allegations. If they are true, and you admitted to them you did something criminal, and it was of the sexual ilk and/or involved children, that is getting reported. It will probably be reported before you even get home or back to work. “But I wanted to get help, and I thought if I went to counseling that the DA or Court would go easier on me.” No excuse. DO NOT ENGAGE IN SELF HELP! Self-help is really just self-harm.

7. You decided to destroy evidence.

Please tell me you didn’t erase that, destroy that, shred that, throw it away, delete that, or “lost” it. Too often a client again engages in “self-help.” They believe, usually in error, that a certain piece of evidence they believe will hurt them, won’t hurt them if it disappears. The number of times that has been true is overwhelmed by those times it has hurt them by an exponentially greater number. In short, it hurts you way more than it helps you.

Often you see that if the data had not magically disappeared, the contents would have actually served the client well and aided in the defense. I see it often in text messages, emails, or social network messaging. The client is communicating digitally with the accuser. Client gets wind the accuser has gone to the police, etc. Client’s digital messages magically cease to exist. What the client did not know, and couldn’t have known at the time, was the accuser redacted a number of the messages to and from her to make her look like a saint and the client to look like a sex craving nut job. Had the client saved the messages, I could have used the “lies” on the part of the accuser to destroy her credibility with the Court and DA’s office. Instead, the evidence cannot be challenged by the truth and you look like you destroyed the evidence because you are the poster child for sex crimes. You never know if the evidence will help you or hurt you.

8. You waived your rights-search warrants, DNA samples, handwriting exemplars, passwords to your cell phone/computer.

If the police showed up and wanted to search me, my home, take a DNA sample, handwriting exemplar, search my computer, or sign a search waiver I am calling a lawyer. Wait, you are a lawyer. You are the lawyer I am going to hire, why would you call someone else? He who represents himself has a fool for a client. This is what I do, all day, every single day. Knowing that, I would still call a lawyer to advise me on what to do.

First, I would tell the police “No.” Let me chat with a lawyer first. If they have a warrant, they don’t need my permission anyway. If they don’t have a warrant, they need my permission. So before I just start giving the farm away, I am going to let an objective professional criminal lawyer examine the situation and advise me on how to proceed. “But what about if I am innocent, won’t it make me look guilty?” To whom? The police? Remember, they already think you are guilty, who cares what they think. I care more about how I spend the rest of my days. Innocent or not, I do not want to spend the rest of my days in prison.

Make them get a warrant. Do not give them anything until you have first retained a lawyer. Then let your lawyer make that call. I would.

9. You made social media posts about the case, allegations, witnesses, prosecutor, law enforcement or events in your life that are inconsistent with the message, theme and theory of your defense.

Do not post anything on social media if you are under investigation, an allegation has been made, you heard an allegation was made, or you have been charged. Each of those posts is another nail in the proverbial coffin. STOP IT. Once any of the above triggers has been pulled or tripped, immediately shut down all social media. Do not turn it on, look at it, read it, anything. Even posts unrelated to the allegation can hurt you. Posts involving alcohol, drugs, parties, travel, luxury, excess, sex, guns, criminal activity, religion, etc. The list of what can hurt you just goes on and on. Plus, it is almost impossible not to defend yourself if you see or read a post that makes you look bad. Each of these posts can be exhibits blown up extra-large to make you look terrible in the eyes of the jurors.

It is irresistible to confront those posts that antagonize you. Next thing you know you are explaining events, detailing facts, providing excuses or alibis, that may or may not be true. It is all in an effort to make you look good or at least not bad. Unfortunately for your case, not everything that is said on social media is the truth and your embellishments, lies, omissions, factual inaccuracies, and statement of the case, will be used against you.

Allow your lawyer to review the evidence and craft the theory and theme of your case. You are not qualified to do that work, leave it to the professional, that is why you hired him.

10. You did not seek the advice of a qualified lawyer immediately.

As explained above, the pitfalls are many, far too many. You can’t navigate your way out of the problem, explain your way out, fix this, ignore it, fight it, or finesse a solution. Too often does the client look down in defeat and simply say, “Why didn’t I come to you sooner?”

If it is money, it won’t get cheaper with time. You don’t know how expensive it is, but you do know it is expensive. You need to find out the costs so you can start working on putting it together. Regardless of who you are or what you do for a living, a defense to these charges is not cheap. It doesn’t matter, you are smart and you know cheap is not what you want anyway. Your freedom, your life, your livelihood, your marriage, your children, these are not the things that you defend on the cheap. Each of these important aspects of your life is basically the whole reason you wake up every day. Maybe you don’t have all of the money right now, maybe you won’t have it for a while, it doesn’t matter, get in and see a lawyer now. The two of you will figure it out.

Maybe you don’t think you will need a lawyer. Maybe you think you won’t get charged. You really do not want to figure out what to do AFTER the police have shown up, arrested you, and you are down at booking at the jail. Do not do the ostrich. Do not bury your head in the sand and hope it just won’t happen to you. Maybe it won’t. But if it does happen, this nightmare has now become your life, what is your plan? What do you do each step of the way? How much money do you need, who do you call, who should I use for bail, what is bail, what is the arraignment, when do I need to hire you, how long does this take, etc.? An ounce of prevention is what meeting with a lawyer is all about. If the other shoe drops so to speak, you must be ready.

You are scared or embarrassed. You don’t want to look a lawyer in the eye and tell them about your problems, allegations, issues and the situation. The problem and allegations better scare you, and at the least create an abundant sense of urgency to find a solution. However, talking with a lawyer and telling him about these issues should never be a scary event or an embarrassing situation.

Now, I would expect you would be nervous, I am a stranger after all, and talking to a stranger about such intimate and personal issues would make anybody nervous. Knowing this, I strive every time I meet with a new or old client to constantly focus on creating a “judgment free zone,” a safe place where you can talk about the most sensitive of issues without concern for how someone might see you.

My job is to help, to fix and solve problems, create confidence, help you to sleep at night, to start eating again, to find hope, relieve anxiety and stress, and understand your problems. It doesn’t matter how bad the allegations or charges are, I will never judge you. I believe each of my clients are not the sum total of their charges or allegations. That charge, that allegation is not who you are. You are made up of all of the seconds, minutes, hours, days, months, and years that have occurred before and after the event in question. Think of all the good you have brought to the world. That one brief moment in time that might be only a few seconds, minutes, or hours. It is such a minuscule amount compared to the balance of your life. The balance of your life, that is what I want to communicate to the DA, judge, and ultimately the jury.

Avoid problems 1-9 by talking with a lawyer as early in the process as possible. You want to meet with me, but I am in trial or I’m at CLE/training, or sick, or on vacation, should you wait? NO. Call me first. I will likely have one of the lawyers in my office, or with whom I associate, meet with you and make sure you avoid problems 1-9. When I am back or available again, I will get you in for an initial client meeting.

You can’t get in touch with me at all and time is of the essence? First, leave a message so I can call you back. Leave a phone number and an email address. Please speak clearly. Someone in my office will call you back or email you and we can go from there.

If you call and do not leave a message, the chance of a quick response is greatly reduced.

WHAT NOW?

Ok, so you did something in 1 through 10 above, all is not lost and not by a long shot. I see these issues in a client’s case more often than not, and it is still possible to get great, survivable results. If you did one or more of these things, first things first, stop doing them right now.

Second, understand that we won’t know what the issues and problems are or the severity, until you come in and sit down and discuss your situation with me. You very well might be worrying about something that has little or maybe no impact on your case. Get yourself some peace of mind. However, if you did something that really hurt your case, you need to know that sooner, rather than later, and so do I. It still doesn’t mean it is the end of the world. Tough, different, unique cases are what I build my practice on. I had a client tell me one day she saw me as the Patron Lawyer of Lost Causes. She said that is what the PLLC stands for after my firm name.

CALL LEE BERLIN AT 918-384-0850 NOW.