As every criminal defense lawyer knows, clients are sometimes a little short on cash to pay the legal fee. They mean to pay it. They want to pay it. They just don’t have it. It happens. So in an effort to reach an accommodation, we are forced to take payment in kind. Is there anything wrong with that?
According to this post by Dave Hoffman at Concurring Opinions, it’s not a great idea.
According to this post by Dave Hoffman at Concurring Opinions, it’s not a great idea.
A pharmacist accused of murder decided to pay his lawyer with his firearm collection. When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.
Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.
Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.
The report comes from the Oklahoman, which offers little clue as to why Box was reluctant to tell the judge how many guns he received in lieu of payment. Dave reads between the lines and concludes that the reason is that the murder weapon was amongst them.
This advice is generalizable. Take cash over credit, and credit over barter. And never, ever, take the instruments of the crime.
I don’t see that as being the problem. Rather, since the defense isn’t that Ersland didn’t kill the individual, but rather did so in self-defense as his store was being robbed, the gun is likely locked safely away in the evidence vault and isn’t in issue in any event. More likely, the number of weapons that Ersland kept would relate to the depth of his interest in maintaining deadly force, and the suggestion that having so many weapons, he was inclined to use them at the first possible opportunity. Motive for over exuberance in the use of a gun to stop a robbery.
Normally, the amount of the fee paid a lawyer is not privileged, a ruling that I fundamentally disagree with but the court never asked me what I thought about it. So if the fee is paid in weapons, it would seem that the number (not to mention type, value and other details) would be subject to the court’s inquiry.
Irven Box was asked how many weapons he received, and told Judge Bass-LeSure to go fly a kite. The basis for his refusal was the defendant’s privilege against self-incrimination:
District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.This is a prime example of a good time to keep one’s mouth shut. Had Prater just stood there twiddling his thumbs, Box’s position may well have found no legal justification. But with the addition of the prosecutor’s acknowledgment that he planned to take this otherwise innocuous bit of information and use it against the defendant, suddenly Box has the force of the 5th Amendment behind him, and is not merely justified in his refusal to disclose information that would be used against his client, but stands tall as a defender of righteousness. A very well armed defender, I might add.
The judge was not pleased.
The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.While the revocation of bail based upon the assertion of a constitutional right raises other problems, the judge’s threat amounted to nothing and, in the finest of legal traditions, falls under the heading of “no harm, no foul.” On the other hand, what business it is to the judge how the lawyer gets paid remains a mystery. Whether it’s a cache of guns or two chickens, it’s not her call and her approval isn’t needed.
As for Dave Hoffman’s admonition to prefer cash over credit, credit over barter, that’s a bit facile when your family’s next meal is paid for via a check bearing the name George Washington Law School. It’s not that criminal defense lawyers necessarily desire barter over cash, but that’s just the way it happens sometimes when we try to accommodate our clients.
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Nice catch. The folks on the Forum have been following this story pretty closely, but nobody there had picked up on this part, or the implications of it.
I particularly like the notion of the prosecutor running his mouth and putting the issue of the guy’s gun collection off limits.
The general consensus there — based on what’s evident, although, obviously, Ersland is entitled to a vigorous defense, and equally obviously can sure use one — is that the first shot was pretty clearly self-defense, but the execution pretty clearly wasn’t. While Brown v. United States, 256 U.S. 335, 343 (1921) tells us that “detached reflection cannot be demanded in the presence of an uplifted knife,” maybe it can be demanded in the presence of a perp lying on the floor with a bullet in his head.
Then again, I dunno. Maybe the late Antwun Parker made a “furtive motion”? I guess we’ll see.
I bet they ask you all the time how many shots they’re allowed. Funny how the focus changes based on the audience.
It does. Lots of that — my — crowd identify with the pharmacist’s situation, at least up until he goes chasing off after the second perp.
As to being asked, well, actually it’s almost never, in class; I use a not entirely realistic hypo before the questions would likely come up — but, sure, in principle; if I didn’t preempt the question, they would.
This case is getting stranger by the moment. I didn’t hear about Texas invading and conquering Oklahoma, but they apparently did, and brought the Law of Parties along with them; the 14-year-old robber and the two guys who allegedly encouraged the yutes to go into the store are being charged with murder, too.
And I’ve never, ever before heard of a prosecutor wanting the accused murderer to be able to carry a gun while the charges are pending.
In CHL classes in TX, it’s a given that instructors advise students to expect at least $10,000 in legal fees even in the most righteous of defense situations.
One this that really bothers me about the case is the reported crowds gathering around the pharmacy calling Ersland a racist. If Parker had been white, I doubt he would have been any less dead.
Back to the point about payment in guns though… It seems to me that there is some bias in requiring the number, makes, and models specific to payment as though it were being used to build another case against Ersland.
JEROME HAD LOTS OF GUNS INCLUDING AT LEAST 2 LEGALLY REGISTERED MACHINE GUNS. EVERYONE WHO KNOWS HIM AND I KNOW HIM WELL KNOW HE HAS ALWAYS BEEN UNSTABLE, A HYPOCHONDRIAC, AND HAS A PERSECUTION COMPLEX, AND ARE NOT REALLY SURPRISED BY WHAT HE DID!!! I AM WONDERING HOW THE AMBULANCE CHASER LEGALLY ACCEPTED 2 MACHINE GUNS ( HE CANT).
JE HAD A MAC-10 AND A THOMPSON TOMMY GUN BOTH IN 45 ACP CALIBER.
The combination of using “nut” in your name and all caps in your comments truly adds a certain panache to your thoughts, not to mention internal credibility.