Andy Marcantel
Get ready guys. We got a big video for you today. What is the anatomy of a criminal defense case? Well, you're about to hear two seasoned criminal defense attorneys talk about it for you. A lot of information stay tuned. This is attorney Andy Marcantel attorney Marc J. Victor. We are the partners of the Attorneys for Freedom Law Firm here today to talk about a huge subject, the Anatomy of a criminal defense case. How's it going, mark?
Marc J. Victor
These are the kind of videos I like to do, right? This is two criminal defense attorneys who are junkies who like what they do, who've done a lot of these cases. I've literally done thousands of major felonies. Everything from lots of first degree murders, many with the death penalty alleged all the way down to crazy little misdemeanors, state court, federal court in-state out of state. We've done a lot at this
Andy Marcantel
Law firm. We have a massive spectrum of all kinds of different cases in our law firm. Obviously what we're very well known for is Second Amendment, self-defense type cases. We're very big in the gun community, but as we always remind our clients and maybe the clients of our attorneys on retainer program, we do all kinds of criminal cases from the smallest of misdemeanors all the way out. I mean, there's no time in this law firm's history that we don't have multiple serious homicide cases in the law firm simultaneously. So we have all kinds of different tools in our toolbox for these, and we were thinking about how cool it would be for people who ask us about the criminal justice system all the time, who maybe don't know the nuances of how a criminal defense case works to do a full overview video of the criminal justice system and what a typical criminal case looks like. But then we started thinking that's a massive, huge, I mean, that video would be 10 hours long mean even if we gave you a
Marc J. Victor
Person, not that we couldn't do that, not that
Andy Marcantel
We could do it right now. I wouldn't tired of doing that, but maybe our crew would fall asleep back there, but we could do it. So what we've decided to do instead is use this video as kind of the 30,000 foot overview of the different components of a criminal defense case and make it kind of the first video and maybe a 10 part, maybe more series where we go back and talk about each one of these steps of the criminal defense process in depth. So I think that's how we're going to tackle this massive project here.
Marc J. Victor
From our point of view, some of this stuff seems obvious to us, but sometimes people call the firm and they say, Hey, look, mark, I got this hearing and I don't need you to do a whole bunch of stuff. Could you just come to the hearing and represent me at the hearing? And I'm thinking, wow, this person really doesn't understand what lawyers do. And sometimes I play around with it. Yeah, you want me to just show up and start talking to the judge without knowing anything about your case or actually having reviewed the discovery or done any interviews or even spoken to you in an in-depth kind of way? What's our strategy? What are we trying to do here? And so how ridiculous that is, but people really just don't understand. I think what we do.
Andy Marcantel
This isn't the average person's fault. I like the fact, and I always tell clients when they come into my office when it becomes very apparent that they don't know what a hearing is and what a motion is and what a sentencing is, I always tell them this is a good thing that you are not acquainted enough with the criminal justice system. Of course, a lot of our clients are quite acquainted with the criminal justice system, but most of them are not. I always say the average person that we defend in a criminal defense case is a good person who just was either at the wrong place or the wrong time or made a stupid isolated decision that is not reflective of who they usually are as a person.
Marc J. Victor
And sometimes they'll call up and they'll say, Hey, I'm charged with this. How much for that kind of a case? And I'm thinking, wow, they don't really understand. And so this really happened right from the beginning where we changed from doing what you might call an initial consultation, which is sometimes maybe a 15 or 20 minute meeting with an attorney to kind of discuss the case, which I think frankly is more of a sales pitch for how the lawyer gets to tell the client, Hey, we're the greatest. And we switch from that to something we call a strategy session, which oftentimes runs longer than an hour because before I can really give any meaningful information, it's going to take, how many of these have we done, Andy? I mean thousands.
Andy Marcantel
Thousands and thousands.
Marc J. Victor
It's going to take at least a half an hour for me to understand what the heck happened, who you are, what your background is, what your goals are. Plus I'm looking at this person saying, how is this person going to play on the stand? Is the jury going to hate this person? I've tried cases where the defendant has just been somebody who I knew the jury was going to hate and you don't have a choice. And I've also had cases where I've said, wow, they are going to love this defendant. They're just going to like this person because it makes a big difference If they hate the person, well, you probably aren't going to put 'em on the stand, so now you're limited. Do we have a defense that can still kind of hold water without this person getting on the stand? Well,
Andy Marcantel
There's a third type of defendant, obviously, and that's the person who initially comes in and perhaps doesn't have a full acquaintance with how the justice system works and what a jury's likely to think. And the initial impression might be this person's going to present really, really bad in the state that they're in right now. But we sit down with them, we explain everything, and there are people that are capable of saying, oh, I understand. We can assist them in presenting in a better way that's going to serve their purposes much better than maybe they originally presented. It's got to be a team approach. We may call that person the salvageable
Marc J. Victor
Person on the stand. It's got to be a team approach. I mean, we can't do it by ourselves. We need lots of help from the client to tell us what the facts are, who some of the witnesses are, whatever it is they know about the case and then they need our help. It's like play chess without knowing the rules of the game. They might know what happened and what the defense is. Maybe they are acquainted with self-defense and they understand the elements and things that need to be shown. But how you make that happen in court, how you present it, what the language is, it's like playing chess without knowing the rules of the game. You can't do it. So that's why you want a team approach. And we switched at our firm to a team approach a long time ago because it occurred to me, and it became very evident that no matter how good the lawyer is, if you miss issues, if you don't brainstorm that case and you miss an issue, it can be the difference between winning and losing the case.
Marc J. Victor
And so you can't really overstate how important it is to get the whole team of lawyers together and sit down and you have the lawyer maybe who's most acquainted with the facts, present the case. Kind of like in law school, what's this case about? Okay, here's what happened. Here are the relevant facts, here's what you need to know. And then we get to sit around the table and brainstorm, what about this? What about that? Have you tried this? Have you tried that? What does the discovery say? What could we learn about interviews? What experts might we want to bring to the table? What things still need to be investigated? And you can get creative as you want on this stuff.
Andy Marcantel
That team approach is so important, critical. It's so important to synergize like that, especially with how often the law changes. One attorney might be on the cutting edge of an issue that maybe had a recent change in the law, and another attorney can then learn from them the newest, most cutting edge defenses. Maybe there was just a case that occurred that affected directly the statute that this attorney's working on. Maybe this attorney had a similar case a year ago, two years ago, five years ago, and says, ah, that sounds like a fact pattern. And in that case, we use this strategy. We got this evidence thrown out, we got this charge dismissed by using this strategy, which always gives to a strategy back and forth. And of course, this is all for the best interest of our clients. It's definitely better to bring a team approach to a strategy meeting between the attorneys.
Marc J. Victor
So where to start with this video, I kind of think of it like this, right? Client comes into our office on a criminal case. They're probably facing the most serious problem they've ever had in their entire lives. I mean, this is something that has the potential to deprive you of your liberty. What's more important than your liberty? People very quickly come to the realization that freedom is more important than money. Because when you're looking at losing your freedom and say you're in the felony world and there's a period of years that's on the table, you find out very quickly people don't really care about how much money it is. They want the best defense because how much does your money help you when you're rotten away in a cage, right? Freedom is more important than money. And so they want the best defense and we got to provide it to them. So we look at it as criminal defense lawyers. I think this is probably the best place to start, which is with our mentality, what's our mentality?
Andy Marcantel
Well, I'm going to stop you there because I think that something that you said really needs to be qualified and any good criminal defense attorney should understand something else too, and we certainly do, which is that we understand that crimes come in all levels and not all of them necessarily result in prison time, jail time, things like that. But that doesn't mean that it doesn't massively impact our client. Perfect example. Recently we represented a truck driver who was making a six figure income driving trucks. He was very well established in his fleet, excellent career, and he got a civil speeding ticket. And in many states, you're not allowed to do a defensive driving class, for example, to get rid of a civil speeding ticket if you have a commercial driver's license. Well, he wasn't looking at years in prison. Maybe some of our aggravated assault or homicide clients are, but he sure as hell cared about the outcome of that otherwise mundane civil ticket because if he were to get that, that would cause him to lose his livelihood. His children were waiting for food to be put on the table. His wife was waiting to have that roof over her head, and it's all dependent upon his income. So we don't make any distinctions between the importance that it is no matter what the level it is, we understand if you're coming to us to see it, we treat it as if it's the biggest thing in your life. It's the biggest most important thing.
Marc J. Victor
We've had nurses, we've had doctors, people who lose professional licenses.
Andy Marcantel
I can't get this misdemeanor case because then I'll lose my license, then I won't be able to be around children in a capacity where I'm taking care of them. I can't be a caregiver to my dying aunt anymore. We understand even if it's simply, I don't want to have a crime on my record because I don't want it to show up in a background check. So just because your liberty in terms of being incarcerated isn't on the line, doesn't mean we don't take it just as seriously and aren't just as ferocious in our defense.
Marc J. Victor
We should put something on the table too. You and I like to fight the state. I mean, we like to fight the
Andy Marcantel
Government, all transparency. I really do fighting the government.
Marc J. Victor
We like fighting the government at our law firm. That's what we do. It's just that we're freedom guys and the government isn't known necessarily more for protecting freedom than they are for screwing freedom up. And so it's just for me, a great honor to fight the state. I mean, we get to fight. We legally get to fight the state. That's what we do for
Andy Marcantel
A living. Yeah, I guess I think about all the reasons why I love being a criminal defense attorney, and these are two different categories of things that we just talked about. The first is that human element that you feel like you could actually help people. You can actually help people, as we mentioned, the vast majority of whom are good people on their worst day, and you can help them to save their liberty, save their properties, save their career, and navigate them through the justice system. Just being there to listen to them and help and empathize with their situation can be so meaningful
Marc J. Victor
On a human level. When you walk out of the courtroom and you just saved somebody from going to prison
Andy Marcantel
And you get that big hug from the family
Marc J. Victor
Members, the crying hug that just, oh my
Andy Marcantel
God, you can't put a price on that. And that's one aspect of it. We can call it the human aspect that really inspires me and makes me love being a criminal defense attorney. But that other aspect that you just named is also pretty damn important to me, mark, which is that it's an honor to hold the government to their own rules. And this is something that I'm really proud about, about our criminal procedure in the United States of America. We have an important rule as part of our criminal procedure, which is there are certain things that are more important than the question of actual guilt or innocence of an individual defendant. Did the government have to break the rules and violate the law in order to procure the conviction and our criminal procedure, because it's something that I'm actually really proud about, about living in a relatively free country, is that we say, no, you're not allowed to violate your own rules.
Andy Marcantel
Government. You're not allowed to break the law just in virtue of the fact that you found some evidence of somebody's guilt. And not only that, we punish the state for violating its own rules, even if the person's guilty. And this is really, really important because our government and our legal system and our criminal code is only as good as the defense bar. Think about that for a second. Think about that for a second. If every criminal defense attorney in this country just decided to phone it in and say, well, I'm not really going to file all those motions, and that's a lot of work to file a motion to suppress for a violation of the Fourth Amendment, and my client's guilty anyway, and so I'm not going to put as much effort, that is the day we become a totalitarian police state. That is the date where the government can kick in any door or open any boxes, search any pocket without probable cause, with no consequence. So our society is only as good as its defense bar and just being that contrarian and just being the rebel and just fighting the government gives me a great amount of pride. So while I love the human element, that aspect of what we do is so important. What
Marc J. Victor
Could I add to that,
Andy Marcantel
Man? Well, here's how I think that we should structure this video. I think that we kind of give a brief overview of some areas that we're going to cover in this series. We just stick our big toe in the water maybe of each and explain basically what it is. Maybe give a little hint of some of the topics that we're going to expand in further videos and then come back and give each one of these in a future video. The attention it deserves thoughts, alright, so it all starts with an incident and sometimes it's an isolated incident or sometimes it's a string of incidents for the isolated incident. I imagine something as climactic as a bullet comes out of a gun and hits somebody who is breaking into your house and now you're in a aggravated assault case perhaps, or a homicide case, one incident. Then I think about other types of cases that might involve conduct over time. I think about many white collar cases, for example, that you and I have handled over. Some of
Marc J. Victor
These cases are over a period of
Andy Marcantel
Years, years and years, sometimes decades
Marc J. Victor
Actually. Sometimes the indictment will say from a period of time from here or approximately from this day to this day, and it could be several years,
Andy Marcantel
Right? And there are obviously statutes of limitations and things like that that qualify when the government can bring these. But the bottom line is incident occurs, okay? Now it's either going to be charged right away or there's going to be a pre-charge phase. Where do we start with a pre-charge or a charge?
Marc J. Victor
And this usually comes up with the phone call. Somebody comes in and says, Hey, a detective's been calling, they want to talk to me, or A card was left at my door, something's coming. And yeah, I kind of did something. I want to talk to you about. Those kinds of things. There's no charge yet, so you have no right to a public defender. You really don't have any rights to hardly anything, no discovery, nothing like that. But we've got a pretty reasonably long list of cases on our case list here at this firm we call the pre-charge case. These are cases that are in a posture where we think something's coming, something's being investigated. Maybe a police officer made an arrest and brought the person to jail and sometimes booked them into jail, and then they had a few days went by and now the prelim is coming and the prosecutor, for whatever reason, either A, just didn't have a chance to look at it and file a complaint, or B looked at it and said, well, I think I want a little more information. It could be something as simple as, we don't really know the extent of the injuries right now. Maybe these are minor injuries, maybe
Andy Marcantel
These are, yeah, there's an alleged victim in the case.
Marc J. Victor
Maybe somebody's going to die. We don't want to charge an aggravated assault. Have the person come and plead guilty to the aggravated assault and then the person dies. We could have charged a murder and now they're stuck because we've pled to a lesser included offense and they can't bring the more serious offense. So there are many reasons why.
Andy Marcantel
Lemme throw out one more reason, which is even more common. It's the most common reason that we see things in a pre-charged posture, which is the prosecutor's still waiting for some evidence to come in,
Marc J. Victor
Turn down for further investigation. Yeah,
Andy Marcantel
We see this all the time, for example, and if we're handling a DUI case, maybe they draw your blood and they actually took you to the station in handcuffs, they drew your blood, but then it's very, very common for them. Instead of charging the case right then and there saying, we're going to send the blood to the crime lab and we'll test it and we'll send you a summons in the mail down the line if we decide to charge the case. So that would be an example of a pre,
Marc J. Victor
Could be DNA, could be an accident reconstruction.
Andy Marcantel
Accident reconstruction. One we see all the time is digital evidence, right? Okay, we obtain some devices connected to this crime that we're talking about. We've sent 'em over to the crime lab. Our boys are going to do a forensic extraction, which sometimes can take months, especially if there's lots of password protections and everything like that. That's a common reason for a prosecutor to scratch a
Marc J. Victor
Case. The irresponsible thing to do is say, all right, man, you're not charged yet. Come back when you get charged and we'll deal with it then
Andy Marcantel
Irresponsible.
Marc J. Victor
Irresponsible. The responsible thing to do is say, okay, let's start working on it. Talk
Andy Marcantel
About, let's be proactive here.
Marc J. Victor
What do we do on our pre-charge cases? I mean, just an
Andy Marcantel
Overview. Oh man, there's so much here, but just to dip the toe in the water dip toe as much as we're championing at the bit to dive deep in each of these one, and we will,
Marc J. Victor
Yeah,
Andy Marcantel
This is the type of thing like learning about our clients so that we can prepare something like a motion to set release conditions when the case is charged. And we're going to talk about this more when we get to the next phase, which is release, but there's important information that we need to learn about the client and about the facts in that moment before the charges show up. And we're to the point now where we're determining, or a court is determining what are the release conditions going to be for this client? So this includes things like demographic information, ties to the community, things to rebut the argument that our client is a flight risk or a danger to the community. For example,
Marc J. Victor
We don't know if this person's going to get picked up when the case starts and now they're arrested or there's going to be a summons at sent that says, Hey, come to court on a certain day. But if they do get picked up, man, it's sure fun to show up at two o'clock in the morning in a suit and tie with a jacket, shoes shined in a formal motion to set release conditions ready to go. That's got a lot of detailed information in it with exhibit A, which is a letter we sent to the prosecutor that says, Hey, among other things, my client is ready, willing, and able to come to court. If you send us the summons, he'll come on in no problem. And I can accept service for him if they come and arrest you. Under those circumstances, man, they look really bad.
Andy Marcantel
And actually there's a legal point to be made there too because, and in many states, Arizona included, where a law firm is located, there is a presumption created in the law that once they know that the client is represented, that the defendant is represented, there's a presumption to send that attorney the summons rather than go and slap the cuffs on them in a dramatic way and haul them to jail.
Marc J. Victor
It just looks bad. And most judges see that. I've had people on pretty serious charges when I've had that sort of exhibit A to the motion to set release conditions, and I've said, judge, what more could we have done to make it clear to the state that my client was happy to walk in and yet they blew that off and arrested him? I think almost every time that that's happened, we've got an OR release or something close
Andy Marcantel
To an OR release and a couple more topics that we'll discuss in our pretrial video. Very, very importantly, getting evidence ahead of time preserving. It's very, very, very important to preserve the evidence. We send preservation letters and things like that, but also oftentimes even when a case is under investigation or pending, we can get police reports, we can get body-worn cameras, we can get surveillance cameras, we can speak to the police and get information from their reports. We can speak to prosecutors many, many times, you and I have prevented a potential arrest of our client by speaking to them and arranging a self-surrender ahead of time countless times. And
Marc J. Victor
Also there could be witnesses out there who are kind of neutral, but if the prosecutor gets ahold of them first, these are professional interviewers on the other side, they send the detectives and now they're locked into a more unfavorable statement. Sometimes we can get 'em in our office and do an interview and get them to say things that they're more favorable to the defense. So later on they're locked in. Those statements are recorded. So if the detective decides to do a little sandpaper of that witness putting a little pressure on it, true that you saw this or that, or would you say this would that they've already locked in to something in a recorded interview with us, that can be very important to
Andy Marcantel
Do as well. And on the subject of witnesses, as we do many, many times when we're anticipating charges, we might want to start creating expert witnesses, getting involved in the case of our own before they charge the case and do their own investigation. So we have that ready. And the last thing that I'll mention on, we've already spent a lot of time, we have, we'll dive into it deeper on the next video, but there are many things we can do of legal significance to affect the charging decision. So for example, oftentimes criminal cases are presented in front of a grand jury. You've probably heard of a grand jury before. Yes, it's a good point. Many people don't know what a grand jury is. And in our video, we're going to talk, in our pretrial video, we're going to talk about what the grand jury process looks like and what your attorney can often do in almost all jurisdictions to potentially affect the charging decision of that grand jury. And it's one of those things, like you were saying, it's so irresponsible to say, oh, you're not charged yet. Just come back to the law firm when you're actually charged, because this is something that has to be done before it's presented to the grand jury, and you
Marc J. Victor
And I have had success on this very point on homicide cases in the past. We'll
Andy Marcantel
Save that
Marc J. Victor
Story for that video. Alright,
Andy Marcantel
So that's number one. Pretrial. Next is release. Okay, so question. There's a lot to talk about what often, which I think is a helpful way to frame it. So you call this step one, which is the question of where are you going to be while the rest of the case is proceeding?
Marc J. Victor
Yeah, let's talk about step one. Step one, what the client cares about is I want to be out of custody rather than in custody now.
Andy Marcantel
So what we'll talk about in our video, there's lots of different things that the judge can do with regard to that. Step one, and we'll talk about things like sometimes there's a bond, sometimes you get released completely or sometimes they put release conditions in place and we're going to talk about what we can do as your criminal defense attorneys in order to positively affect where you're going to be during step one. It
Marc J. Victor
Also kind of relates to the pre-charge, right? Because one of the best arguments on release is often, Hey judge, before he was even charged, he came in and retained us and look what we've done. If he was going to flee, he probably wouldn't have paid money out of pocket to hire a private criminal defense
Andy Marcantel
Attorney. Absolutely. So then the next thing we're going to talk about in our video series is just kind of the general flow of the case or the criminal procedure of the case. And this varies pretty significantly in many ways between jurisdictions though they all certain things as well, and there are different types of courts the case can go to. For example, in that video we're going to talk about everything from misdemeanor type courts. We also call them courts of limited jurisdiction such as justice courts, municipal courts, superior courts, county courts, federal courts. They all kind of have their own rules and the judges have a lot of say in how the flow of cases go. Sometimes there are things called early disposition courts and we're going to talk about that. That's kind of a depressing topic frankly for me, mark, because that's kind of what I would call the cranking them through like cattle aspect, the cattle call, the cattle call court. We'll do a pretty deep dive into the flow of a case. During that video, a next step, we're going to spend a lot of time talking about the huge topic of discovery. What kind of a teaser do you want to give for this huge
Marc J. Victor
Topic discovery. I think sometimes people don't understand the word. This is really us learning about what's the evidence, what do they have, what do we have, what do they have to disclose, what do we have to disclose, what might we not want to disclose? Sometimes we like to spring things at trial because we have certain options. I mean the defendant doesn't have to say a word at all at any time, but could say a word for the first time at the trial, which is after the government presents its case and has rested. So there's a lot to talk about with discovery in terms of how you process it, how you organize it, what types of things you want to inject into the case in terms of potential pieces of evidence, witnesses, those kinds of things.
Andy Marcantel
Discovery is just the process of them giving you evidence that they plan on using against your client, and this can come in all different forms. This would come in the form very, very often in something like police reports or supplemental reports, written reports basically. And then it also includes things like body-worn cameras, surveillance cameras, dash camera footage,
Marc J. Victor
Interviews of witnesses,
Andy Marcantel
Interviews of witnesses are very common, and so we'll talk about obtaining discovery and some of the rules having to do with not only the discovery that they need to produce to us, and when I say, I mean the state or the government prosecuting your client, but there are also certain rules governing what defense attorneys are required to produce during discovery as well. It's much more limited, but it's very, very important to know, so we'll talk about that as well. The next subject is interviews, and this happens during the discovery process. Oftentimes while you're receiving discovery from the state, you determine somebody that you want to interview. Maybe you got more questions to follow up some of the information that you see in the police
Marc J. Victor
Reports and how you handle those interviews and what information you want to come out right there in front of the prosecutor. Maybe because you're trying to negotiate a case or maybe not because you want to maybe have this come out at trial for the first time and you don't have a constitutional right to interviews. And so different states have different rules in the federal court. You don't have a right to interviews. A lot of this is, as they say, trial by ambush, and so our preference normally is to get the done early as soon as possible so we can learn as much about the case as quickly as possible, but we interview everybody and sometimes there can be strategy in terms of interviewing people who might not be so important to the case and can present a little bit of pain in the neck factor for the prosecutor. There can be reasons that we want to do that as well. So we'll talk about all of that when we get into interviews.
Andy Marcantel
I'm actually really excited for the interview section of this series because I want to talk some, kind of give people some insider insights into some of the strategy that goes into these interviews. Really, a lot of strategy goes into this interview. For example, let's say that you're planning on filing a pretrial motion for the purpose of saying that the state violated the fourth amendment, just to pick a hypothetical example, and there's a key piece of evidence that you're trying to get suppressed or thrown out because of what a fourth amendment violation. Well, you might be interviewing a witness who's just got one little piece of information that you're missing in an element for that motion. Maybe you're doing a big giant interview and you really are trying to strategize all of it around getting that single important smoking gun, important answer that you can use then in a future motion. There's just so much and sometimes it's much more complex than that. Sometimes you need that witness's entire interview. We'll also talk about things like expert interviews and strategy for that, so I'm actually looking forward to our interviews
Marc J. Victor
Video. Sometimes it's all about whether the officer is going to answer the question, whether he was free to leave, yes or no. That makes the whole difference in the case. There can be lots of things like that.
Andy Marcantel
I just remembered this, something that we should at least give the anecdote about. We should tell the anecdote about the officer who refused to answer the question, who we Then, well,
Marc J. Victor
Let's a fun story. Let's
Andy Marcantel
Leave that hanging for now. We'll mention that during our interviews video. Alright, next up. This is such an important section of what we do, which is negotiations in the case.
Marc J. Victor
Yeah, I mean, where do you start with this? Because clients don't generally love the idea of putting their case in front of a jury and waiting until a randomly selected group of people they have no idea about come back and either say guilty or not guilty.
Andy Marcantel
And if you're doubtful of that, because I mean a lot of people take the tact of like, I'm going to go to trial. I'm never taking a deal. If you're doubtful of what Mark just said, simply take a look at the statistics around the country where 96, maybe 95, 96, 90 7% of cases in all jurisdictions in the country end in some sort of a plea deal.
Marc J. Victor
We're often in the position where the defendant's family or friends are very bold. We're not taking any deals, we're not going to do it. We're going all the way, and then you get the defendant, well, I'm not so sure that I want to take that risk, and people have different risk tolerances, and so negotiations are important because it's our job at the end of the day to deliver two important pieces of information to the client, right? Piece number one, what does trial actually look like? What are we looking at? How good are our chances of winning this thing and if we lose it, what are you looking at? We need to deliver accurate information to the client, but that by itself doesn't really get us anywhere. You got to compare that against the other piece of information, which is what is the best plea offer we're ever going to get on this case and the client's got to feel comfortable that we have worked that case up.
Marc J. Victor
Put as much pressure as we can on all the pressure points of that case to get what is really the bottom based final. This is it, take it or we're going to trial kind of deal. If clients feel like, I'm not sure this is the best plea, they're not going to want to take that plea. I don't blame them. If you're going to ask me to take a plea in a criminal case, I want to know that is the best. Everything's been tried. We beat up the prosecutor, the supervisor, the bureau chief, maybe the division chief. We've been up there two, three times. They're sick of us. They said, don't call me ever again. Like this is it. Take it or leave it. Okay. Then we compare those two things, right? That's really at the end of this. That's what we're mining for, to give the client the information of what they're looking at, what it looks like at trial, what are your real chances given what we've now learned about the possible, the defense we can put on and what's the best plea, and then they compare it. Usually it's a pretty easy decision if the client feels comfortable that we have accurately provided that information on what they're looking at at trial and that we got the best plea. Usually it's an easy decision. Sometimes it's tough where the client will say to me, mark, what would you do? And I'll always give my opinion, but sometimes it can be a very difficult call.
Andy Marcantel
Yeah. Negotiations is such a complex issue and one that I love talking about to clients, and I always frame it in terms of there's two different types of tools in our toolbox, and when I say two different types, I mean there's two different real categories. Number one being legal defenses. This is us actually threatening the prosecutor essentially saying, Hey, there's a chance that we win at trial either on the merits or because maybe there's a big motion in lemonade or some sort of a suppression motion or something like that. There's a reason why we have a chance. We have an actual chance of walking our client. We could beat you, could beat you. That's in category number one, which is legal defenses. Then there's category number two. Category number two is mitigation, which is just a fancy lawyer word of saying good person stuff or context stuff or stuff. They're bad
Marc J. Victor
For the guy.
Andy Marcantel
Stuff that shows that my client's a good person or a good guy,
Marc J. Victor
Maybe not a legal defense, but you can kind of understand why this person did what they did or there's some other excuse, something that doesn't rise to the level of a legal defense, but something that makes the prosecutor say, I should have some mercy, some leniency. I should do something good for this person, and we got to present that, and you got to mind for that and you got to present it in the right
Andy Marcantel
Light. So in our negotiations video, we're going to do a deep dive into both legal defenses, the types of things that we raise as lawyers in your legal defense and also mitigation and why it's important and how it
Marc J. Victor
Affects how
Andy Marcantel
We get the information,
Marc J. Victor
How we get it, what a mitigation expert is,
Andy Marcantel
What a client can actually do to assist their lawyer in mitigation. There's so much that we can talk about there. So negotiations, I'm looking forward to making that video. Then there's the pretrial motions. This is when we actually file motions asking the court to do something and oftentimes litigate those motions.
Marc J. Victor
There's a lot of strategy here too as sometimes we just tell the prosecutor, Hey, we got this motion out here.
Andy Marcantel
It's locked and loaded. We can file it, but if you give us a better deal or you dismiss this, yeah. Other
Marc J. Victor
Times we draft it up and it says draft on the front and we send it over. Other times we file it in court and we say, look, let's put it on hold. Let's hold it in abeyance, and you don't have to file a response yet. We don't want to make you do extra work, but it's out there. Said another way. If you give us a plea that's good enough, you don't have to respond to this motion or two or three or four. There's a lot of work for you out there that you can avoid. You can make this go away anytime you just give us what we want.
Andy Marcantel
Yeah, we should spend some time talking about that particular issue that you just brought up in death when we make the big video mark, which is yeah, there's the legal defenses of whether we can win the issues on the merits and whether we can win the case on the merits, but then there's a more human pragmatic kind of practical aspect, which is the pain in the ass factor, which is capitalizing on maybe we got a prosecutor with a busy caseload. Maybe we create a busy caseload for the prosecutor by filing a whole bunch of different motions and that can have a serious effect on negotiations and how a case shakes out. What we
Marc J. Victor
Really want is that prosecutor opening his or her mail in the morning and seeing yet another motion from those guys, oh, again, I got to do something else here. It's going to take more of my time. Now they want this. Now they want that. Now I got to file a brief on something else. We want them sick of dealing with us. We want to be at the time consumer on the case, and fortunately, you and I are really good professional pains in the ass.
Andy Marcantel
I've been told such things. Yeah, for sure. So we'll talk about that factor. We'll also talk about what it looks like to actually argue and litigate a motion, what it looks like when the state files a response. We file a reply. We'll talk about the procedure
Marc J. Victor
There, opportunities when the judge takes it under advisement. That can be another little pressure point, good time to negotiate a case.
Andy Marcantel
We'll even spend a little bit of time talking about something called interlocutory appeals there, which is during that pretrial motions phase when sometimes we want to challenge the ruling on a pretrial motion to a higher court in the middle of the proceeding, which is kind of a fun thing to do, which I really enjoy, so I'm looking forward to our pretrial motions section. Next, you were talking about an important crossroads earlier, mark, which is trial or plea and getting our client to a place where they are absolutely in the best position for trial and on the other side, they absolutely have the best plea possible in the case, informing them when we hit that crossroads, educating them on the risks and benefits of both sides, and then them ultimately giving us the marching orders. You get
Marc J. Victor
To a point where you got to fish or cut bait, you got to make a decision. We're either going to trial in this case or we're going to take some kind of a resolution, and so we need to talk about what a trial looks like.
Andy Marcantel
That's going to be the next big video, and it's going to be a big video. We've got to talk about
Marc J. Victor
Trial. So fun. Trial is like going to war, right? You are going to war. You are gearing up, and we tell the people in our lives, I am in trial, and what that means is Mark and Andy might be coming home at 11:00 PM We're off
Andy Marcantel
The
Marc J. Victor
Radar. Yeah, there's no limit to the time we might come in in the morning. There's no limit to how late we're going home. We're not having lunch. We're in a war situation. We're fighting. We got motions being cranked out on the fly back at the firm. Everybody's working on it. It's a huge project. If we're going to go, we're playing a win,
Andy Marcantel
Right? So we have a huge video coming on this subject at trial. I don't even know how we stick a big toe in that giant ocean of potential issues
Marc J. Victor
There. I'll just say in terms of preparing for trial, I think one of the more counterintuitive things that people don't know is where you start preparing trial and you start preparing trial with the closing argument, right? I mean, you of course look at the jury instructions and get a good feel of what is it that the jury is going to be asked to read and given the law, but you got to start with the end in mind, right? Begin with the end in mind. Habit two of the seven habits, what's the closing argument? And in that closing argument, you got to figure out what is your legal theory? We need a legal theory that gets us to not guilty. What's our theory? Is it self-defense? Is it something else? Is it duress? Is it mistaken identity? Is it something like that? There are many different defenses that could be used, but we need a legal theory of the case, and then we need a theme of the case. Ladies and gentlemen, this is a case about fill in the blank. That's our theme of the case, and we want to build the case around our legal theory and around our theme of the case. That's where we start prepping it for trial,
Andy Marcantel
And as we go through all the different subjects for trial, I mean, we're going to be talking about everything that goes into the preparation for the trial, such as selecting jury instructions, which you just referenced. Then there's the actual selection of the jury, the voir di
Marc J. Victor
Process. There's also special jury instructions. I like to try to write a special jury instruction. I like to
Andy Marcantel
Make our own because sometimes the model jury instructions don't have everything that we need. It's
Marc J. Victor
Also a great really fertile ground for appeal, right? We're also lacing in possible appellate issues because we're thinking three dimensionally in case it doesn't go our way. We want to be able to see that record with appellate issues and a requested jury instruction that is denied by the judge is a great area for an appellate issue.
Andy Marcantel
We'll talk about objections. I mean, that's the fun, sexy part of the trial objection. We'll talk about why
Marc J. Victor
You might object, why you might not object to an invalid question, why you might still sit there and not object when you could have
Andy Marcantel
Objected. That's right. That's right, and we will talk about cross-examination, what the rules are for direct examination, cross-examination, expert witnesses, motions filed during trial pursuant to different rules and different jurisdictions. We'll get
Marc J. Victor
Into the hearsay rule. I love it when people just throw around. That's hearsay. I say, really? Is an out of court statement offered for the truth of the matter asserted. They say, huh? I said, hearsay is a specific definition in the evidence code, how it works, what the exceptions are and how you can use it maybe even to your advantage sometimes.
Andy Marcantel
Yeah, so I think people are really going to like that video and we'll cover every major topic. I mean, it's impossible to cover every single topic. We'll hit every major topic involved in a trial, the prep, the execution, all the way down to the closing arguments and the jury verdict in that section of this series.
Marc J. Victor
That's going to be a fun one. I think it's important to note as well that not all defenses are, ladies and gentlemen, we're asking you to come back with a not guilty, right? There can be the major charge, but then there can be lesser included offenses, and sometimes we ask for that lesser included offense. Maybe it's the kind of thing where if you weren't released from custody but you've served enough time, maybe it's a misdemeanor, maybe you get time served for that. We don't care about that misdemeanor, and we feel that if the jury wants to get them on something because they just feel like something was done wrong here by the defendant, sometimes we can stare them away from the major charge. The one that carries 20 years and into the minor charge, that's maybe a time served $200 fine, because the jury doesn't get to know what the punishment is for any of these crimes.
Marc J. Victor
That's generally a bad thing. It's one of the things that you might change if you could change in the law and how cases are conducted, but you can also use this as a weapon if the jury doesn't know the difference between crime X carries 20 years and crime Y is six months in jail, and we give them crime Y, and maybe that's a good compromise. Sometimes we play it like that. We may ask for the not guilty knowing that they might compromise on that lesser included, and if they do, that's a huge victory. That is a big win for the defense, but you're still moving to sentencing,
Andy Marcantel
So if you are ultimately convicted of something at trial or if you take a plea deal, there's going to be something called a sentencing, and a sentencing is where the court determines what's the punishment going to be, and there's a lot to say about prepping for sentencing, what goes into a sentencing, what the ranges can be. It's going to be a big topic. I mean,
Marc J. Victor
That's phase three, right? Phase three, that's a whole separate. People think, oh, well, you're guilty of something. Well, yes, but if you are in that situation, there can be a huge range of things that can happen to you at sentencing that might include things like on one hand probation, you go home and you sleep with your family and you live your life, and on the other hand, you go to prison and you sleep in a cage with a bunch of other people in cages, and so that's a pretty important part, and sometimes people say to me, Hey, mark, how can you defend people who are guilty, especially if they're going to be found guilty?
Andy Marcantel
Well, you could simply refer to reason number two that we were talking about at the beginning of this video about why we're proud to be criminal defense attorneys because there's questions that are bigger in this society in the United States of America that are more important than individual guilt, which is the government screwing up. But
Marc J. Victor
Sometimes the case comes in and it's a phase three case. The person didn't follow our advice, opened their big mouth, said something along the lines of a complete confession. I'm the one I did it. It's my fault. I'm actually guilty, and now they get charged with the crime. You might say, why hire a criminal defense lawyer because there's still a big issue in phase three. What is going to happen to you as a result? In some cases presented? That's really the reason we're hired for that
Andy Marcantel
Fight. Yeah. Let me say something about that. That is such a huge point right there. That is such a huge function of what a criminal defense attorney does, and I think there's a strange public misconception that the only thing a criminal defense attorney's trying to do is to show you're not guilty. My purpose is to show that you're not guilty. Well, yes, maybe that's a huge role that we serve, but then there's another role that we serve, which is does the punishment fit the crime here? And oftentimes, especially in some of these maybe crazier jurisdictions with regard to certain crimes, the answer is no. There's rampant over criminalization, rampant over punishment of many, many different things. Well, Andy, how could you possibly defend that person knowing that they possess the green leafy substance, that evil substance known as marijuana? My next question might be, well, what's the punishment? Is it five years in prison? Is it one year in prison? Is it probation? Is it a slap on the wrist? Fine. My other role is to make sure that the punishment fits the crime, right?
Marc J. Victor
Yeah. Just really fast on this, I know we're going to get into in much more detail, but the typical case that this comes up and it comes up all the time, it's really hard when you get the really good person, no priors, no problems, had a little bit too much to drink, and then they got in their car and they drove home and they made a little misjudgment on the road and they caused a big car accident. Maybe somebody's dead. Maybe there's some very serious injuries. There could be multiple people, and then they of course feel huge remorse. They do everything they can do to help the person at the scene. Maybe they're really banged up bad. This is somebody who's never going to do this again.
Andy Marcantel
Well, let's go even more in depth. Let's add piles and piles of mitigation to that, right? Let's say this person's like a cancer doctor. They just cured cancer yesterday. They've given a charity their
Marc J. Victor
Entire life, served in the military, served in the
Andy Marcantel
Military. We've had this case, I mean a million times. Yes,
Marc J. Victor
Really good person,
Andy Marcantel
Person. The law legally for the question of whether you are now guilty of manslaughter, doesn't care. The law couldn't care less about that. Remember mitigation that second category, stuff that is irrelevant to the question of whether or not you're innocent or guilty of the crime of which you're charged, but that stuff sure is important at sentencing. These are
Marc J. Victor
Tough cases, right, because the family comes in, the victims and they want a lot of time understandable, and then the family of the defendant comes in and the defendant speaks, and you hear lots of genuine remorse. Those cases are great examples of very hard. Sometimes. I say, judge, I wouldn't want to be you. This is a very hard decision. What's the right thing to do? There is no right thing to do. It's a function of how well we present that case to that judge and literally years of prisoner hanging online. So that video will be about the kinds of things that we do in preparation for those hearings. Those are very emotional hearings. Those hearings oftentimes, there's not a dry eye in the courtroom. We've been through 'em, you've been through 'em. I've been through 'em times, and they're very, very tough hearings, but there isn't actually a right answer of what's the proper punishment? That's where the big fight in the case
Andy Marcantel
Is. That's right. And not all to be fair, not all sentencings. In fact, the majority of sentencings are not as dramatic as the big homicide with the sympathetic defendant and the devastated victim's family and everything like that. A lot of them are little dinky misdemeanors, DUIs, domestic violence stuff, but oftentimes even those can get very, very emotional, and oftentimes importantly for our purposes, the judge does have some discretion on what to do. In fact, very often we'll talk about this in depth in our video. We make deals that a lot of times defense attorneys and prosecutors would refer to as no agreements deals, where the judge has a wide variety of different things, could be all the way up to 15 years in prison and all the way down to probation with minimum surveillance. So yeah, those are important.
Marc J. Victor
Quick point on that before we move on. People don't understand. It's not just show up and say your
Andy Marcantel
Piece. Oh, hell no. We
Marc J. Victor
Do something called the pre-sentence hearing, which I tell people. Think of a little mini trial on the question of what is the proper sentence here. We can call witnesses. They can call witnesses. Experts are used. It's like a trial and it can go over several days. I've had pre-sentence hearings that have gone on quite a period of time, so in days actually, and so there's a lot to talk about in phase three, the sentencing, what can be done.
Andy Marcantel
We'll also mention restitution and things of that nature. There's all kinds of topics for sentencing, so stay tuned for that video. And then the final topic that we're going to be covering in this massive series of ars mark is post conviction relief and appeals and basically things that you can do after you're convicted, things your lawyer can do to potentially challenge the conviction or modify the sentence. Yeah, we've
Marc J. Victor
Had a lot of experience here too. We've done a lot of appeals are both state and federal appeals. I've been at the ninth circuit many times and argued cases there. We've also done a lot of post-conviction relief where you might be bringing an argument that the trial counsel on the case, whoever that was, we get these sometimes for the first time on post-conviction, they were ineffective. Nobody loves to point the finger at another attorney and say, this person was ineffective, but that's our job as attorney. If there was ineffective assistance of counsel, and we can talk about the Strickland standard and what's involved and what has to be shown and cases, maybe we can't talk about specific cases where we've had success here, but what makes a successful defense, or I should say at this point, really a prosecution of an ineffective assistance claim, which is a post-conviction relief issue. It's sort of like what's left over. If you've waived your right to appeal when you take a plea, usually waive your right to appeal, but then again, there's a residual area left over that always allows for ineffective assistance of counsel, and sometimes we're hired just for that. So there's a lot to talk about in that sort of posts sentencing phase of a case as well.
Andy Marcantel
Yeah, as you say, there are certain post-conviction relief rights that nobody can waive no matter what they put into a fancy plea deal.
Marc J. Victor
Things like newly discovered evidence, something has now arisen, which we didn't know about before. It
Andy Marcantel
Couldn't. That could take the form in something like DNA that wasn't available at the time. Maybe a confession of somebody else that they did it.
Marc J. Victor
Yeah, there's all kinds of stuff. Could be a change in the law that's happened as well. Ineffective assistances in there. There could be claims of actual innocence. Hey, they just got it wrong. Now, those are hard claims to show, but there usually is some little release valve in there where you can come back and say, Hey, there's a
Andy Marcantel
Problem here. And so importantly, now that we've kind of given what it is, the part that I'm really looking forward to Mark and that we've had tremendous success with at this firm is talking about really the practical aspects of how a good defense attorney uses post-conviction relief issues to try to get that foot in the door to go negotiate with the prosecutor. Because what a lot of this looks like a lot of time is we're looking for any colorable claim that we can file just to get us back into the court and we'll talk about the practical effects of that and how oftentimes we might be able to get a prosecutor at that point and say, look, you guys are going to have to litigate this big post-conviction relief issue. Why don't you make my client a deal? We'll come up with maybe a reduced time deal or time. We just
Marc J. Victor
Had one of these, we just had one of these within probably the last six months, and we shaved off quite many years of this guy's sense. And it was a deal. It was a deal we made with the state because we had filed a post-conviction relief claim and they said we could possibly win this. It could go either way. How about we just settle it and let's reduce the sentence to this amount. So there's lots to talk about here.
Andy Marcantel
Yeah. So we'll cover all that stuff and more when we talk about post-conviction relief and appeals. So there you have it, my friends. The massive overview of how to work a case as a criminal defense attorney, how a criminal defense case rolls through the justice system. And as we go through, of course, you'll be getting little nuggets of wisdom and strategy from two seasoned criminal defense attorneys who have only done, I don't know, a few thousand of these types of case. The fun
Marc J. Victor
Thing is we love this stuff. I mean, if it was a Saturday evening and we were just sitting in the backyard, it's the
Andy Marcantel
Type of stuff we'd be talking. Absolutely.
Marc J. Victor
Absolutely.
Andy Marcantel
Alright guys, stay tuned for the series and if you have any questions or specific things about any of these sections that you'd like us to hit or talk about more in depth when we make those videos, we'd love to hear from you on that. If you enjoyed this video, like it, subscribe it, share it with a friend. Also, by the way, go check out attorneys on retainer us to learn all about our Self-defense protection program. We can cover you if you're involved in a self-defense incident at no charge to you other than what you pay for the membership and the monthly signup. It's an excellent program. It's improving all the time. Go check it out. Also, learn more about our law firm@attorneysforfreedom.com. Go see our philosophy, see some of our high profile cases, and see what we're all about. Until next time, this has been attorney Andy Marcantel attorney Mark J. Victor. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=mjLZP37TgVg
Credit: Attorneys On Retainer