Jamison Koehler never struck me as a violent sort of guy, so it was a bit surprising that he would end up sharing his client’s desire to punch the complainant.
I wanted to hit him myself.
This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face.
It’s not that the desire to punch someone doesn’t happen, but most people don’t. When they do, it doesn’t always turn into a case as it doesn’t rise to the level where the punchee feels it worthwhile to pursue. Being punched once is bad enough. Having to deal with the cops over a simple punch, with no lasting injury, just adds insult to the mix. But not this guy.
The complainant turns out to be a first-class jerk. I call him up before the arraignment to find out what happened. I also express concern for his injuries. This, I have found, is the trick to get people talking: People love to talk about how they have been harmed.
True enough. A bit of empathy and the words flow. People love to talk about themselves, how they’ve been harmed, how it’s the most horrible thing ever.
Instead, the guy tries to shake us down for money. “I have talked with some of my lawyer friends,” he tell me. “And this is going to end up costing your client a fortune. First he is going to have to pay your fee. And then there will be a civil case. On an hourly basis, that is going to cost him even more.”
I always hate peoples’ “lawyer friends.” They tend to give such bad advice.
I take a moment to process what I am hearing. “Are you asking us to pay you off?” I ask him.
“Well,” he says. “I don’t have any sons. But if one of my daughters got herself into trouble like this, I would say that $30,000 would be a fair price to be done with it.”
This doesn’t happen often, but it happens. It’s a mercenary world, and some people can’t resist the opportunity to make a buck. Often, the “victim” sends a message to the defendant that he can buy his way out of the problem. In this instance, it was before arraignment, so there was no opportunity to do so. Instead, the “victim” chose to negotiate directly with the lawyer.
Some “victims” will lapse into prosaic demands for “justice.” Others, not so much. They realize the system may well punish their attacker, but won’t do squat for them. Giving a guy a good tongue lashing and probation won’t feed the kitty, and they could really use a new car. Which one would be more fun fair?
There is another moment of silence as each of us thinks this over. You see the part about wishing I could hit him too? Or thinking that my client really should have hit him twice – and harder both times?
“I have to tell you,” I say to him. “I think you may have misunderstood the purpose of my call.”
“Very well,” he concludes. “See you in court.”
This may have been a huge opportunity lost. Aside from the fact that it’s improper to use the threat of criminal prosecution to gain a benefit for a civil claim, the offer to drop a criminal complaint for money destroys a victim’s credibility. Many prosecutors will drop a case flat upon learning what his poor, darling victim did. They don’t like being used by victims trying to extort money.
Had I been in Jamison’s situation, and I have, I would have told the victim that I had to discuss this with my client, and would get back to him. I would let some time pass, just for the sake of appearance, and wire up the ol’ telephone. Most lawyers of my generation keep a wire around for just the purpose, so that we can record telephone conversations when needed. Whether newer lawyers do so, I’m not sure, but it’s always a good idea to be prepared. The seven P’s remain a good thing.
On the call back, preface the recording properly, noting all the salient details from what happened before, why you’re calling, whom you’re calling, when you’re; well, all the “w” words. Then get the guy on the line. Begin with a recap of the earlier phone call, just to make sure you fully understand that deal.
Usually, they will be more than cooperative, as they want to make sure you know how much to pay them, and they’re chomping at the bit to get some quick and easy money. They can smell it. They can taste it. They’re excited at the prospect that this is going to work, one quick punch and they’re going to hit the lottery.
And there it is, all on tape (or digitally recorded, because we’re thoroughly modern these days). At the end of the conversation, you beg off because it’s more money than the defendant can pay. That’s where they start dickering. If 30’s too much, they can do 25. Okay, 20, but not a penny less. You protest, they can’t get blood from a rock. Desperation seeps into their voice as they see the payday slipping away.
This is where they remind you of how they will nail your client to the wall, make him regret not paying him off. You sigh, tell him you hear him, and that you will have to let him know. You press the button to end the call, but don’t hang up the receiver, because you still have to dial the prosecutor’s number.
A criminal prosecution is designed to do certain things to a defendant. Dickering price with the complainant is not one of those things. If that’s what he’s up for, burn him for it. And even if the prosecutor doesn’t decide to drop the case, you still have the recording for trial. With a decent cross, even the jurors will want to punch the guy by the time you’re done.
Koehler practices in the DC area, including Virginia, which leads to two possible problems with what you’ve said:
1) Virginia has an Accord & Satisfaction provision for criminal assault and certain other misdemeanors 19.2-151 (I have no idea if DC or Maryland do). Even if a judge lets the attorney bring in the recording to impeach the victim, it’s going to be awfully easy to rehabilitate them.
2) The state bars of many states have ruled that it is unethical, even if not illegal, for a lawyer to record a conversation without notice. Other states have fairly narrow exceptions.
Did it strike you that this wasn’t to be read by anyone but Jamison? And if you tried a little harder, you would know that recording a threat to engage in criminal conduct (extortion) falls outside theethical proscriptions.
Or are you one of those prosecutors who has no problem with victims extorting money from defendants?
It struck me that it was to be read by anyone who reads your blog.
I don’t like the idea of victims extorting money from defendants, but that’s not been shown to be the case here (yet). How much does it cost to hire a criminal defense lawyer, pay any restitution and court costs and other fees and fines, hire a civil defense lawyer, and pay any civil judgement? How much money is lost due to time off work and potential loss of job/career due to a conviction of a violent offense? And all of this in the DC area?
Having lived and practiced criminal defense in the Virginia suburbs of DC, I know it wouldn’t be cheap. It would be outrageously extortionate for any of my indigent clients…but for a mid-to-high-but-not-high-enough-level civil servant or medical professional, caught in the wrong with strong evidence against him, with a stubborn complainant who had sought all the very best medical care that might be reasonable? $30,000 might actually be deal to jump on if it meant an expungement and no threat of civil damages.
The complainant here is probably, as you said, just extorting Koehler’s client. But that’s not certain at all. Given that “satisfaction” isn’t defined in the Virginia Code and that it appears that victims of the crime described here can be legitimately paid off, it definitely doesn’t give any basis to the assumption that a prosecutor would approve of extortion (assuming this is happening in Virginia or another state with an A&S provision).
If you’re going to accuse someone of impropriety, it’s best to actually be able to connect the dots.
The amount of damages suffered isn’t measured by the cost of a criminal defense lawyer under any calculus. It might well be a “deal,” but it’s not the measure of damages.
SHG gives an incredibly valuable bit of advice, and your response is to try (wrongly) to nitpick it? Typical prosecutor, doing anything he can to try to keep defense lawyers from beating them. You are an asshole.
I like that Piedmont (and some others) bring the prosecutor’s perspective here, but his comment this time was pretty crappy and counterproductive. And wrong. This was not his best showing.
You understand that in an A&S, the case is dismissed, right? There’s no “win” for the prosecutor. The A&S provision is heavily in favor of the defendant.
Yeah, and if someone was inclined to not record evidence of extortion because it could possibly eventually result in an accord and satisfaction, which ultimately didn’t happen, and thus had no evidence to use against the “victim” at trial, you would cry sad prosecutor tears for him. I don’t think so.
“You understand that in an A&S, the case is dismissed, right?”
From Virginia code 19.2-151:
[…] if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court MAY, IN ITS DISCRETION, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution […]
It is possible that the defendant pays the ‘satisfaction’, the complaining witness acknowledges it (in writing) before the judge, yet the criminal case isn’t dismissed.
I have had this happen a number of times on criminal cases but usually in the context of some type of check fraud claim where the details are somewhat sketchy and the alleged victim wants to capitalize on their claimed loss by agreeing to drop the claim if the client throws in a few extra bucks on top of the claimed loss. Unfortunately in South Carolina we have to disclose a recorded call and that makes people very nervous about any further conversations. Strangely though, when you ask them to sign an affidavit with the details of what they want they seem much more compliant than having there words recorded, I have yet to understand why but it achieves the same purpose so what the heck. But yes, I agree with you, when someone starts sniffing around for a little something extra, take it as a window of opportunity, not a thorn in your side.
Calls that involve threat of criminal conduct (see above) is generally an exception to the ethical proscription for lawyers recording calls. It’s a shame if lawyers aren’t aware of this and fail to take advantage of this opportunity.
“Most lawyers of my generation keep a wire around for just the purpose, so that we can record telephone conversations when needed. Whether newer lawyers do so, I’m not sure, but it’s always a good idea to be prepared.”
Although it had not occurred to me to record the conversation, I was regretting that I didn’t have my investigator on the line. This would be my normal practice.
One-party recording is not illegal in D.C. (This is unlike Maryland — remember Linda Tripp?). Still, after checking with D.C. bar counsel when this issue came up before, I think I pushed the issue about as far as I could in D.C. There are some blurry areas here and not a whole of overlap between what is ethically required and what is ethically prohibited.
Having an investigator on the line is great. The problem is often twofold, that one isn’t available when you need him, and that it adds a layer of expense that client’s can’t afford. Even so, it’s best to record (provided state law allows one party recording) as that’s better evidence than an investigator’s testimony as to what was said. In the best of all possible worlds, best to have both.
Live and learn.
For all of us, if this bloggy thing works the way it’s supposed to.
Is it a defense to prosecution under Maryland Courts and Judicial Proceedings Section 10-402 that the call involved a threat of criminal conduct?
Maryland is a “two party” state. D.C. and 39 other states are “one party” states. Do you feel compelled to note this on a state by state basis? I’m struggling to understand what possible purpose you could have in making this comment, as if lawyers don’t know whether they’re in a one or two party state, or lawyers can’t do their own research.