Defending Specific Crimes

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Author Timothy Zerillo shares with you the lessons he has learned in years as a successful criminal defense attorney. This edition brings you new forms, strategies, and tools for defending more than 20 crimes

In Defending Specific Crimes you will find—

Winning STRATEGIES AND TACTICS such as:

CLIENT RELATIONS (CHAPTER 1)

• FORM 1-10 Sample E-Mail Response to Web Inquiry, §1:11
• FORM 1-11 Sample E-Mail Response after Initial Conversation with Prospective Client, §1:11.1
• FORM 1-60 Flat Fee Agreement, §1:41
• FORM 1-61 Hourly Fee Agreement, §1:41.1
• FORM 1-70 Guarantor Fee Agreement, §1:70

STRATEGIES FOR ALL CRIMINAL CASES (CHAPTER 2)

• FORM 2-91 State (Maine) Discovery Letter, §2:86
• FORM 2-92 Federal Discovery Letter, §2:87
• FORM 2-99 Standard Offer Letter, §2:90.1

ASSAULT/BATTERY (CHAPTER 3)

• Allegations of Long-Time Spousal Abuse, §3:56
• The Strangulation Allegation, §3:573

THEFT OFFENSES (CHAPTER 4)

• FORM 4-31 Release in Felony Embezzlement Case, §4:71.1

DRUG CRIMES (CHAPTER 7)

• Challenge Race in Your Stop, §7:34
• FORM 7-91 Motion to Dismiss, Destruction of Evidence, §7:87
• Sample Cross-Examination of Drug Agent, Destruction of Evidence, §7:88
• Sample Cross-Examination of Chemist, §7:103
• Sample Cross-Examination of Cop, Multiple People in the Car, §7:104

DRUNK DRIVING CASES (CHAPTER 8)

• FORM 8-65 Letter Requesting Blood Draw Discovery, §8:122.1

CHILD PORNOGRAPHY (CHAPTER 13)

• Could the Difficulty of Seating a Jury Lead to Dismissal, §13:56
• FORM 13-70 Sample Jury Questionnaire for Child Pornography Case, §13:57

AND MORE!

Effective SAMPLE CROSS-EXAMINATIONS of:

• Arresting officers in assault, theft, burglary, drug possession, drug cultivation, drunk driving, and sexual assault cases.
• Police officer on photo arrays and line ups in a robbery case.
• Undercover cop and snitch in a drug sale.
• Detectives in a child sexual assault case and a child pornography case.
• Prosecution medical examiner in a child sexual assault case.
• Forensic expert in a child pornography case.
• Government expert on breath testing in a drunk driving case.
• ATF agent in a firearms possession case.
• Property owner in a burglary case.
• Disinterested witness to an assault.
• Abusive spouse/parent in a parental kidnapping case.
• Alleged victims in assault, criminal threatening, kidnapping, rape, date rape, and child rape cases.

85 custom-drafted FORMS including:

• Letters to Prosecutors and Clients.
• Discovery Motions.
• Suppression Motions.
• Motions to Dismiss.
• Motions in Limine.
• Sentencing Memoranda. 

Here are 16 PRACTICE TIPS from the book:

Domestic Violence

1. When you enter a plea to a drop down and are trying to avoid federal firearms implications, ask the prosecutor to dismiss the old domestic case in its entirety. Then re-file the new complaint with the plea bargained charge. That way you have a new docket number and no mention of the alleged domestic victim. §3:51

2. In advance of the bail argument, but after I have filed my bail motion, I ask for an offer from the prosecutor. The prosecutor knows that what the client wants is contact with the alleged victim. What the prosecutor wants, however, is a conviction.  So, often the prosecutor will float an offer that involves contact between the defendant and the alleged victim through probation, or something along those lines.  I never intend to accept these offers.  . . I just want to use it at the bail argument.  If it would be safe for the defendant to plead guilty and have contact with the victim, why can the prosecutor take the position that it isn’t safe if the defendant doesn’t plead guilty?  Some judges are receptive to this argument. §3:63

Theft

3. When you get a case where there has not been a charge, get to the decision-maker. In theft cases, the decision maker is not the prosecutor, but the victim, typically an executive with the organization from which your client stole. My sole goal once I have an audience is to grovel for a private solution. So, when I get to the decision-maker, I want to do three things without making any admissions on my client’s behalf: 1) convey my sympathy to the decision-maker for the losses the business has suffered; 2) if possible, convey sympathy for my client’s own circumstances; and 3) make it clear that the appropriate business decision involves keeping my client out of jail. §4:70

Burglary and Robbery

4. Only raise the issue of alternative suspects if you can do it in a way in which the jury won’t blame the uncharged burglaries on your client too. For example, maybe there is a good alibi on the other charges that clears your client, and allows you to raise this issue. §5:15

Criminal Threats

5. If your client has trauma in his past around violence and abuse, a psychiatric expert may be able to provide information to negate mens rea, or at least present good sentencing information. Remember forensic psychology and psychiatric treatment pre-trial are crucial in almost every criminal case. If your client resists, tell him it is a contingency in the event that things go badly at trial. Some of the more manly men will accept treatment if they think it is mere legal posturing. §6:34

Drunk Driving

6. Since a certain percentage of the population has nystagmus naturally, you need to develop a relationship with an optometrist. Whenever you get a case with a failed HGN test, you need to send the client to that optometrist and ask for a report to be sent to you. In many cases, you can knock out the HGN test this way. §8:61

7. Your client may have allowed, but not legally consented to the blood test. Consent generally requires a knowing and voluntary waiver of rights. You may find facts that overwhelm the defendant’s ability to consent. At your motion hearing, set that scene and establish that consent was not free and voluntary. §8:130

8. Make sure with all of these [field sobriety] tests that the instructions are given clearly and correctly. The best way to do this is if you have audio from the stop or a cruiser cam recording. Often the instructions are given incorrectly, and you then have a fertile ground of cross examination.  Other times the officer merely isn’t clear or loud enough.  More points for you on cross. §8:178 

Firearms—Possession by Disqualified Person

9. You might get questions by a disqualified client who wants to know if his or her significant other can possess firearms while they live together. If the guns are not the disqualified person’s firearms, and they are kept in a gun safe that is locked always (a gun safe with a pass- code combo, not a key – the disqualified individual arguably has access to the keys and therefore the guns), then I think it is possible. All that being said, you need to warn your clients that the police may not interpret the concept of constructive possession reasonably.  And while your clients may be following the letter of the law, they may have to go through hell to prove it. §9:32

10. Even if your client is going to take a chance and possess [a firearm] during a deferment, don’t forget to watch for bail conditions. They often restrict firearms use, and they may still be in effect during the deferment period, unless you modify them. §9:61.

Sexual Assaults against Adults

11. The alleged victim often gets angry when investigated and then calls the police who try to lean on you. I politely tell them what the tampering statute is and to leave us alone. If they continue to threaten, I call the prosecutor and have him or her tell the cops to back off.  If they don’t, file a Motion to Dismiss and argue that they are chilling your right to prepare a defense. §11:10

12. My greatest luck at severing counts has been on Fifth Amendment grounds. Consider it this way; your client may want to testify as to one count but not another. A joined trial does not permit that. The jury will automatically infer guilt on the non-testifying count. When arguing one of these motions, you may get a judge who wants your client to decide whether he intends to testify as to one count, but not another.  Beware of this tactic.  The judge is obviously trying to gut your argument.  The answer, naturally, is that your client cannot and will not make a decision as to what he will testify to until he has heard the Government’s case-in-chief.  Forcing an election prior to that time would be a due process violation. §11:62

13. You can measure noise levels. I have had cases where there is a claim of a violent rape with significant resistance in a house where many people stayed. I have had investigators measure noise levels with sound meters.  They can station themselves in various locations within a house and measure the noise.  If the walls are thin, you want to know it if no one else in the house heard anything that night. §11:144

Sexual Assaults against Children

14. Have the client give your office the funds to hire the polygraph examiner. If the lawyer hires the polygraph examiner, the results are likely covered by privilege. If the client does the hiring, they may not be. §12:18

15. Lawyers act too sympathetic with kids on the stand. . . Don’t act like the child’s parent no matter how cute and sympathetic he or she is. Don’t offer a tissue when they are bawling. . . . If you give an inch – by offering a tissue or asking if she is ok – she will take a yard.  And the prison yard is where your client will be spending his free time. §2:130

Child Pornography

16. Be careful with state court cases in which the court or the district attorney wants to give you or your expert the contraband directly under to some sort of protective order or rule. These state laws may contradict the federal law. The last thing you need is you or your expert getting arrested. I suggest that you let the prosecutor keep the contraband and you review it at a government facility. §13:16