5 Ways to Assess Whether a Criminal Defense Attorney is Any Good

The following article by Stephen A. Cooper was published on January 22, 2016 by Huffington Post, HuffPost Crime.

No one wants to be charged with a crime. But, if you are, or, if one of your friends or loved ones is, here are five things to consider when deciding whether you've got a good defense attorney or not.

1. Irrespective of payment or a client's guilt or innocence, from the start, a good criminal defense attorney cares and takes steps to ensure the client's constitutional rights are protected, and vindicated, and that the client is treated fairly and humanely by the criminal justice system. This doesn't mean everything is going to go smoothly, or, that every decision from the first court appearance is going to go in the client's favor. Usually, and particularly with serious charges, it doesn't. But, a good defense attorney, whether representing an accused serial killer or shoplifter, is going to fight tooth and nail for their client -- and it should be obvious they are -- even if decisions by prosecutors, probation officials, and judges don't immediately reflect their efforts.

2. Criminal defense attorneys, like judges, prosecutors, probation officers, and cops, are "repeat players" in the criminal justice system. Not always, but often, before a criminal case begins, the defense attorney has an established working relationship with the prosecutor and a passing familiarity, or better, with other repeat players in the case. This can be good, because if the attorney has a good reputation (for being competent, passionate, and ethical, for example), they will be in a better position to negotiate and advocate for the client as the case winds through the system. This relationship between repeat players is important to be aware of because some defendants (or their family members) might see the defense lawyer share a smile or laugh with a prosecutor or probation officer and start immediately thinking -- jeez, is this person on my side? But, the reality is, that smile or laugh may be part of a strategy the attorney is using to secure an advantage -- be it information that might help defend the case, the dismissal or reduction of charges, a good plea deal, a favorable bond determination -- or a million other decisions and calculations affecting a criminal prosecution. Remember the familiar adage: "You can catch more bees with honey?" It applies.

Now, don't get me wrong, if a criminal defense attorney is constantly cozying up to the prosecutor and other repeat players such that it seems like he or she might actually care for them more than the client -- that's a problem -- a big problem. But, then, likely, the lawyer in question is not zealously defending the client -- see number 1 above -- and the client should already be trying to get a new lawyer.

3. A good defense attorney doesn't care if their client "did it." Overwhelmingly, criminal defendants want their defense lawyers, just like they want everyone else, to believe they're innocent. But, a good defense attorney doesn't care whether their client is innocent or guilty because it's of no moment as it concerns their constitutional obligation to try and beat the case, or, failing that, to secure the best, least penal outcome. Good defense attorneys aren't focused on whether their clients are innocent or guilty. Instead, they protect and fight for defendants of both stripes using all available energy and resources.

4. A good defense attorney doesn't accept what is in police and prosecution reports. Once assigned a case, he or she, in conjunction with a trained criminal investigator, will immediately begin investigating the allegations by: demanding that the prosecutor turn over information (called "discovery") about the case, collecting records, going to the scene of the alleged crime, talking to witnesses, hiring experts, taking statements, securing relevant video footage and pictures, serving subpoenas, etcetera.

5. A good defense attorney will regularly remind and urge their client to exercise their Fifth Amendment right to remain silent, insisting they not talk to anyone, except the defense lawyer and investigator, about the allegations. At the same time, a good defense attorney will regularly meet and talk with their client about their case whether the client is locked up or not. Defense attorneys are uniformly busy people, but, if they're any good, they will make time to talk to their clients. Not only do they have an ethical obligation to do so, they know and appreciate that the best part of being a criminal defense attorney is the relationships formed with clients.

So, what do you do if you or someone you love doesn't have a good defense attorney?

Well, if it's a private attorney being hired, research should be done to find an attorney who has a good reputation for criteria 1-5 above. If it's a court-appointed attorney or public defender not doing their job, it will be more difficult, but generally not impossible, to secure a substitute. What the client has to do -- not a family member, unless the client is a juvenile -- is speak up! Without saying anything about the charges, they must write to the judge or tell the judge at their next court hearing that they want, in private, without the prosecutor present, to talk to the judge about how their attorney is failing them -- using concrete examples of how (see criteria 1-5 above as a guide). There is a chance the judge will decide the client is right, or, that there has been a "complete breakdown" in the attorney-client relationship such that the appointment of a new defense attorney is required no matter what.

About the Author: Stephen Cooper is a former federal and D.C. public defender. He writes full-time and lives in Woodland Hills, California.

The Lynching of a Madison Lesbian: Wisconsin’s Wrongful Conviction of Penny Brummer

The following article by Michael Leon was published by CounterPunch on January 20, 2016,

Madison, Wisconsin.

By now, many readers have seen or heard of Making a Murderer, the tale of vengeful law enforcement hicks from Manitowoc County Wisconsin preying on an intellectually challenged juvenile and framing a man suing Manitowoc County for $36 million in a civil lawsuit for a wrongful conviction.

While shocking to some, the capacity and inclination of law enforcement to harass, arrest, prosecute and convict is axiomatic to most criminal defense attorneys, intellectually honest scholars and certainly those citizens on the receiving end of the blunt instrument known as law enforcement by the “Sovereign,” the “state in all its power and glory,” as described to me by federal appellate attorney, Sidney Powell, a former Asst. U.S. Attorney.

The victims of Manitowoc County, (a region in east-central Wisconsin from which I hail), are a disgrace. But the progressive fountain of Dane County Wisconsin (Madison) is arguably worse than Manty County in the criminal justice realm. Folks, we live in a police-prosecutor-prison state, (and its existence a compelling argument for a coalition of the American libertarian right and left)

I present to you one Penny Brummer, an out lesbian who joined the military right of River Valley High School in Springgreen, Wisconsin and served honorably in the Air Force for five years before returning home and then moving to Madison in the early 1990s.

In her mid-20s, Penny fell in and out of love, drank beer and bar-hopped, rode motorcycles, living her life in a similar fashion to most young 20-somethings in Madison, Wisconsin.

In the early to late 1990s, Madison was not a welcoming place for the LGBTQ community by Madison law enforcement, whatever you may have heard about Madison being an progressive oasis with an enlightened police force.

Police harassment and hostility was tolerated by progressives and to this day, for example, the former Club 3054 on East Washington Street, the main drag, is recalled for targeting by the cops by former patrons.

So it was one March 15, 1994, after Penny broke up with her girlfriend, and looking for company called friends and co-workers to “go out” on a Monday night. Sarah Gonstead said, yes, and Ms. Gonstead and Penny happily bar-hopped before Penny dropped Gonstead off at a frequented short-cut to her ex’s place, where Penny saw Gonstead strike up a conversation with some guys next to a line of motorcycles, one of the men with long hair and slight build.

No one saw Sarah Gonstead alive again. Gonstead’s body was found on April 9 outside of Madison.

Madison police and the Dane County Sheriff’s detectives decided Penny, 24-years-old, was the perpetrator. No physical evidence, no weapon, no motive, no determined crime scene, just a theory—what is known as police “tunnel vision,” disregarding all exculpatory facts and evidence that would not support or disconfirm the theory.

For example, and I offer just one point, as recounted by author and attorney Sheila Berry in her book, Who Killed Sarah: “David Zoromski, who reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah’s body was later found, was told by a Dane County Sheriff’s Deputy, ‘What you saw is all very interesting, but we have a suspect and it doesn’t fit.’ The man seen by Mr. Zoromski matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison, [by the short-cut], after she dropped her off that night. Police identified him and knew he was a convicted felon with a long history of violence toward women — but they never followed up on this lead.”

Author Berry was asked by her daughter to do something after reading a piece by Ingrid Ricks about the case in The Advocate in 1995, so she penned a book.

So Penny Brummer sits in prison in Taycheedah Correctional Institution in east-central Wisconsin, prosecuted by the district attorney’s office of Brian Blanchard (2001-2010), and trial presided over by former Judge Patrick Fiedler, former Gov. Tommy Thompson’s close political ally and comrade in the lock-em-up-and-make-their-lives-a-living-hell politics that won Thompson multiple elections with Scott Walker while he was serving in the State Assembly Committee on Corrections and the Courts.

A new trial for Penny Brummer is demanded by advocates who began a petition this week. They also offer a $10,000 reward for information leading to the arrest and conviction of the person(s) responsible for the death of Sarah Gonstead, and an 800 number for tips at 800 407-1178.

Brummer today sits in prison serving her life sentence. Former DA Blanchard is a state appellate judge running unopposed this year, and serves as Vice-Chair of the Wisconsin Judicial Council, revamped and politicized by Wisconsin Republicans and Scott Walker.

Do Penny Brummer and Wisconsin a favor and sign and circulate the petition for a new trial. We need a win and so does Penny. Penny Brummer could not be convicted today, explaining perhaps why the current DA refuses to revisit the case.

As Prof. Keith Findley of the Wisconsin Innocence Project concludes last weekend in a column in the Washington Post: “We must make the system more responsive to post-conviction claims of injustice and less bound by blind obedience to finality.”

Related website:  WhoKilledSarah.com

Injustice Anywhere Endorses The Brendan Dassey Case

by Bruce Fischer, January 21, 2016

Injustice Anywhere, an all-volunteer organization working to bring more attention to wrongful convictions, has added the Brendan Dassey case to their list of Endorsed Cases. Brendan Dassey was convicted in Wisconsin on March 17, 2007, of first-degree intentional homicide, mutilation of a corpse, and first-degree sexual assault. Dassey was sentenced to life in prison, with a chance for early release in 2048. The victim was 25-year-old Teresa Halbach. Dassey’s uncle, Steven Avery, was also convicted of murdering Halbach, but the two were tried separately. Avery, who was already proven to have been wrongfully convicted in a prior case in the same county after serving 18 years as an innocent man, has denied any involvement in the Halbach murder. Avery’s supporters argue that the same police force who wronged him the first time, set out to frame him once again in an attempt to avoid paying out millions of dollars to settle a civil suit resulting from his wrongful conviction.

During their murder investigation, police questioned Dassey, then a 16-year-old high school student, looking to find information on Avery, the lead suspect in their case. Interrogation recordings show that Dassey was coerced into making false statements which were then used against him to secure his conviction. The recent debut of the Netflix documentary Making A Murderer, which details the murder of Teresa Halbach and the controversy surrounding her death, has brought renewed attention to the decade-old case. The series has left many wondering if Steven Avery and Brendan Dassey had anything at all to do with the crimes they are charged with.

Injustice Anywhere, a group which I help operate, has reviewed the Brendan Dassey case and has determined it to be a clear cut case of wrongful conviction. Dassey’s interrogation recordings provide a casebook example of a coerced confession. Sadly, Dassey was horribly mistreated by his public defender as well. Dassey did not receive a proper defense, instead he was coached by his attorney to say he was guilty. The attorney even had his own investigator instruct Dassey on how to draw images of the crime scene which would  support the prosecution’s arguments. Dassey is seen acting clearly confused during the recorded session, which irritates the investigator, prompting him to give orders to Dassey telling him exactly what he needs to draw, providing all of the necessary details along the way.

There is no evidence against Dassey, beyond his statements to police. He was interrogated at 16-years-old without an attorney present, and he had ineffective counsel, making it it impossible for him to receive a fair trial. At the very least, Dassey deserves a new trial. Injustice Anywhere has provided a case summary on our website clarifying our position on the case.

Wrongful Convictions Like That of Steven Avery in Making a Murderer Are More Common Than You Think, Expert Says

The following article by Jessie Gabel Cino was distributed by the Newsroom of Georgia State University on January 19, 2016

Newswise — The Netflix documentary Making a Murderer and the NPR podcast Serial have generated public outrage over wrongful convictions in the criminal justice system, but situations like this are more common than the public might think, a Georgia State University legal expert said.

Jessie Gabel Cino, an associate professor of law, has worked on criminal cases similar to that of Steven Avery, the subject of Making a Murderer.

Cino is the co-founder of the Wrongful Convictions Project, which assisted defendants with claims of actual innocence. The project, which she helped to start while in law school at the University of Miami, continues today as the Innocence Clinic.

She consults in criminal and bankruptcy matters, and has represented clients in criminal cases pro bono. Cino successfully appealed the wrongful conviction and death sentence of Cory Maye in Mississippi.

Avery was convicted of rape in 1985 but was exonerated by DNA evidence, and convicted of murder in 2005. The documentary Making a Murderer questions the murder conviction and whether Avery was framed by police and prosecutors.

"For a mainstream audience, the concept of an innocent person being caught up in the legal system is something that is almost impossible to relate to," Cino said. "Having worked on these cases since I started law school, I struggle to tell a client who is sitting in prison on the other side of a glass barrier to be 'patient' with the legal process.

"I can’t pretend to 'understand' his anger, frustration, or hopelessness," she continued. "I can’t imagine what it’s like in prison when you’re supposed to be there -- let alone when you’re not."

While news reports on television may highlight stories of people who falsely confessed, were misidentified, or who were victims of prosecutorial misconduct, those short segments don't come close to showing how false convictions ruin lives of those who were convicted, their families -- and the victims, too, whose wounds are reopened, she said.

Cino said Making a Murderer's depth is unique in showing such stories about wrongful convictions, and its popularity speaks to how the subject has captured public interest -- though there are hundreds, or maybe thousands, of cases that the public may never hear about.

"That is about as in-depth as you can get," she said, and the depth is something that audiences apparently crave."

She teaches teaches courses on forensic evidence, forensic medicine, bankruptcy and contracts. She has written on a wide-range of topics, including the validity of forensic evidence genetic testing, forensic DNA identification, trial and jury tactics, bankruptcy fraud, lender liability, legal ethics and bioethics.

Cino also consults on various criminal and bankruptcy matters and has engaged in numerous pro bono criminal defense representations. You can read some of her work at http://works.bepress.com/jessica_gabel/. For Cino's biography, visit http://law.gsu.edu/profile/jessica-gabel-cino/.

Making A Murderer -- State of Wisconsin v. Steven Avery

The following opinion by Casey Hoff, Esq. was published by Wisconsin Gannett Media on December 28, 2015.

It is difficult not to rush to judgment when reading about a person charged with a crime or seeing his unflattering mug shot on the local news. But when people rush to judgment, it can lead to a horrific miscarriage of justice.

The Netflix series "Making a Murderer" is terrifying on a whole host of levels, not the least of which is because it tells the story of Steven Avery’s 1985 wrongful conviction for sexual assault, which was based in part on eyewitness misidentification. Avery spent 18 years in prison for a crime he did not commit. The Wisconsin Innocence Project ultimately obtained a court order for DNA testing of hairs recovered from the victim. The DNA test linked Gregory Allen, a man who was already serving a prison term for a different sexual assault in Green Bay, to the crime for which Avery was convicted in 1985.

In other words, the real perpetrator was found, and Avery was exonerated and released in 2003.

Misconduct was alleged in the rape case, including against then-Sheriff Tom Kocourek and then-Manitowoc County District Attorney Denis Vogel. The suit claimed Vogel knew about Gregory Allen, as criminal complaints surrounding Allen were found inside Vogel’s case file. A member of the sheriff’s department may have become aware of information following Avery’s rape conviction that suggested Avery did not commit the crime. The state Department of Justice conducted an investigation into the 1985 wrongful conviction and found “no basis to bring criminal charges or assert ethics violations against anyone involved in the investigation and prosecution of this case.”

After Avery was exonerated by DNA evidence in 2003, Wisconsin legislators responded by passing a bill with reforms designed to prevent wrongful convictions. The bill introduced by then-Rep. Mark Gundrum included requirements and updates for written police policies on eyewitness identification procedures, the recording of police interrogations and longer retention of DNA evidence.

The Netflix documentary has generated massive interest and significant controversy, because, according to a press release about the series, it “examines allegations of police and prosecutorial misconduct, evidence tampering and witness coercion.” The documentary includes a significant amount of footage from depositions in a $36 million, nearly unprecedented lawsuit filed by Avery against Manitowoc County.

In 2005, just two years after Avery’s exoneration and release from prison, Avery was charged with the murder of 25-year-old photographer Teresa Halbach, whose remains were found in a burn barrel on the Avery property, along with her vehicle. Avery’s murder trial became one of the most notorious in Wisconsin history. The defense argued that Avery was framed by law enforcement. Did the fact that an innocent man spent 18 years in prison for a crime he did not commit “make" a murderer, as the documentary title implies?

A jury ultimately convicted Avery of the murder, but that has not ended the controversy. Much of the public seems to have been unaware of many details of the case. Although the prosecution argued that Halbach was murdered in Avery’s trailer in a bedroom, why was no blood found in the trailer? Why was the key to Halbach’s vehicle not found during the first searches of Avery’s trailer, but only later during a subsequent search by a Manitowoc County Sheriff’s Deputy suspected of becoming aware of exculpatory evidence relating to Avery’s 1985 false rape conviction? Was Avery’s blood found in Halbach’s vehicle planted, as the seal to Avery’s blood evidence kit was broken?

The documentary will likely further inflame passions on both sides. Former Calumet County District Attorney Ken Kratz, according to a recent article in Post-Crescent Media, called the series a “defense advocacy piece.” Current Manitowoc County Sheriff Hermann, while admitting he has not seen the series, says that the backlash has been “frustrating” and asks people to keep an “open mind.” One of Avery’s defense attorney’s, Jerome Buting, says that people who watch the documentary will come away with reasonable doubt about the conviction, if not become convinced that Avery was innocent.

I would encourage you to watch this fascinating series. Keep in mind, however, regardless of the passionate feelings and controversy generated about Avery’s second case, it is indisputable that Avery spent 18 years in prison for a crime he did not commit and that many rushed to judgment in Avery’s sexual assault case.

The Innocence Project, based on the few studies on the issue, estimates that anywhere between 2.3 percent and 5 percent of all prisoners in the United States are innocent. In other words, up to 120,000 people are estimated to be sitting behind bars right now for crimes that they did not commit.

Certainly it is critical that our system works to minimize the number of wrongful convictions. When we get it wrong, the consequences are not only horrific for the accused and his or her family, but the real perpetrator is free to victimize more people.

Casey Hoff is a criminal defense attorney based in Sheboygan.