The Bill Of Rights & Criminal Defense Cases

Almost all of the protections that individuals—citizen or not—enjoy in the United States to protect them from the government come from the first ten amendments to the Constitution, known as the Bill of Rights. Maybe a long time ago, people recall hearing about the Bill of Rights in civics classes, but the story behind the Bill of Rights is that the Constitution was drafted in Philadelphia and went out to the 13 colonies to be ratified. The colonists rejected it. Why? Because they saw that, without certain individual protections, there was going to be a repeat of the kind of bad government experience they had in England, which they were leaving behind. King George didn’t allow for any individual rights. There was no freedom of religion, no freedom of press, no right to bear arms and form militias, no protections against unreasonable searches and seizures, no protections against self-incrimination, and no guarantee of effective assistance of counsel.

So, almost all of the things I do are wrapped up in these first ten amendments, with just a few that I have highlighted. The most important one, from which I think all the others flow, is the Sixth Amendment: the right to counsel. The Constitution says that an individual has the right to not just counsel, but effective assistance of counsel. Even though the Constitution said that, for almost the first 200 years of our nation, there was no system of public defenders. It wasn’t until 1963 that an individual who had been convicted of a petty theft in Panama City, Florida, appealed by writing, from Florida State Prison, his own petition to the United States Supreme Court, saying that he was unjustly convicted because he didn’t have an attorney to represent him.

In a lot of ways, that made sense. There was an attorney for the prosecution, the judge wasn’t an attorney, and an individual who was not trained and experienced in the area of law had to defend themselves against a criminal accusation. They really didn’t stand a chance.

This individual, who became famous, was named Clarence Earl Gideon. Earl Gideon petitioned the United States Supreme Court, and it’s very famous that the United States Supreme Court required that individuals accused of a crime, who were facing prison or jail time and a loss of their liberties, were entitled to court-appointed counsel. When Gideon’s case came back—reversed and remanded—it was returned to court in Panama City, and he was represented by an attorney. He was found not guilty.

So, you know, it’s a very patriotic thing. I love to wrap myself in the flag, and I think that what I’m doing as a criminal defense attorney is the most patriotic thing that I can do to demonstrate my love for this country: by making sure that individuals, without me having to judge them—that’s not my job, that’s the job of the judge or the jury—have the constitutional rights guaranteed by the Sixth Amendment, ensuring they receive effective assistance of counsel.

Now, to turn the page: what happens when an individual does not have effective assistance of counsel? We have developed a very highly refined and efficient practice in the area of post-conviction relief, where we represent individuals who have not had effective assistance of counsel, have lost their appeal, and are now within a two-year window to try to come back and attack their conviction.

I can tell you that there was recently a case we had where an individual we represented went in, entered a plea, was sentenced, and then appealed the sentence. The sentence was reversed, and when it came back, a different judge imposed the same sentence he had received in the first place. When we got to the case, we reviewed the matter and found out that my client, who had been convicted of three counts of jury tampering, should have only been convicted of one. We made a double jeopardy argument and argued that my client had ineffective assistance of appellate counsel. The appellate court reviewed the pleadings and agreed with our interpretation of the statute. The court ruled that my client could have only been convicted of one of the three offenses and that two of the offenses should never have been convicted. His appellate counsel had completely missed the issue.

The client went from having a 15-year sentence to a five-year sentence. We went to court, and the judge made an immediate order for the defendant’s release from prison. That guy got ten years of his life back just like that because he knew enough to call us.

We had another situation where an individual entered an open plea to court and was sentenced to 20 years in prison. However, his attorney failed to advise him of what his exposure was when he entered the plea. This mistake caused the defendant to enter the plea when, had he known what he was truly facing, he would not have entered it. His sentence went from 20 years to five years.

Even though I’ve received many great outcomes in criminal defense cases over the years—having clients found not guilty—it’s a new thrill and excitement to have somebody who is on their last gasp of breath, before their sentence becomes final and there’s nothing that can be done, to have their sentence cut and for them to be released. It’s amazing.