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John Samore
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New Mexico Lawyer focusing on criminal, family, DWI, and divorce.
New Mexico Lawyer focusing on criminal, family, DWI, and divorce.

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I've posted a new blog, "Why Small Crimes are Good for Big Business" inspired by a recent article in New Mexico In Depth. This article is written by a dedicated journalist, Jeff Proctor, who is highly-respected because he so thoroughly researches all his work before it is published. Crime can be a serious problem but, in this country over the last 35 years, the far worse problem is actually businesses that owe their existence to locking up small-time offenders for long prison sentences. I give a brief overview in this blog. http://samorelaw.com/blog-thoughts-about-law.htm

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I've posted a new blog "Why It Is So Difficult for Accused People to Have a Fair Chance at the Truth and Some of the Brave People Who Challenge Mistaken Assumptions" that can also be found on my website at http://samorelaw.com/blog-criminal-law-concerns.htm.

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What are the financial commitments to help avoid conviction consequences?

Also see this post at http://samorelaw.com/insight1.htm.

Consequences of any conviction can be severe and follow you (and your family) all your life, so we like our clients to be realistic about the challenges that lie ahead. We encourage our clients to quietly consider the financial commitment that is required to retain any experienced private attorney to represent your most precious interests. Because most employed people are ineligible for a Public Defender, you must decide if you can afford a quality defense. Most lawyers do not give clients this opportunity before an office conference, and too many attorneys pressure folks to sign major obligations. Our office does not work that way.

We do not try and scare anyone, nor do we minimize the importance and dangers of felony prosecutions. You will hire us because it is the best decision for you. There will always be someone who will undercut the price of a quality attorney, and either demand additional payments down the line or commit less time and effort because your money ran out. You would not fall for that misleading approach from a car salesman, and you are wise not to risk your future to someone who does not confront with the truth, however daunting it may be.

You want a lawyer who will also explain how the resources you commit for a qualified forensic examiner or other expert witness, and an experienced, diligent private investigator can be every bit as important as your attorney. These expenses should be included in any initial consultation and determination of what "fees and costs" to defend your case are. When you leave a voice mail or message, find out how quickly your lawyer responds to your reasonable questions and concerns.

If the State goes through the Preliminary Hearing procedure, the likelihood is high that you will be bound over for further prosecution. The reason is two-fold: Defense witnesses almost never testify at a Preliminary Hearing, because the Defense does not really know until that Hearing what the evidence is. The second reason is that their standard to bind an accused over is so low, "probable cause" that a crime has been committed, which does not even require fifty percent likelihood in proof.

You will not be found "guilty" or "not Guilty" at a Preliminary Hearing or Grand Jury Presentment, so it is basic good sense and legal sense to hold back on showing the prosecutors what problems they have with their case against you. At this early stage of the proceedings, we learn the extent of evidence the State has and how determined they are to make you and example, even if a conviction or even the publicity!) causes permanent damage to you and your family. To defend against allegations, two other expenses you are likely to incur, could also be very helpful to achieving justice on your behalf. We give you all this information so you will be able to make the best decision for yourself.

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We hear a lot about prosecutions for child pornography; why does your office defend these kind of cases?

Read here: http://samorelaw.com/insight4.htm, or continue below.

You are correct that the number of prosecutions in both state and federal court have increased many times in the past ten years, in other words, thousands more people are being prosecuted for this criminal conduct. People who are prosecuted are usually decent, upstanding citizens with no prior legal problems, who are destroyed by the allegation and lose their marriage, their children, and their employment. The lives of their families are also, if not destroyed, irretrievably damaged.

Our colleagues from the United States Attorney and state Attorney General tell us that all the increase is due to the easy access that people have on the Internet. What too often happens is that curious or just plain bored people will often be playing around on the Internet and wind up creating problems for themselves which they could not have imagined.

Certainly, child pornography should be a crime because the victims are little children who have no way of protecting themselves. Virtually no pornography is actually made in New Mexico (or anywhere in the country), although you might not know that from the way some ambitious prosecutors carry on in their speeches and press releases to try and impress voters. For example, these legislators and prosecutors have made certain that each individual picture, which they can connect to the accused person's computer, increases the risk of incarceration for those convicted, sometimes up to hundreds of years. The overbroad way the law is written, a person can be subject to far more severe penalties for images to which a porn website connects but images which he has never actually seen.

What often happens is that law-abiding folks will be playing around on the Internet and get a pop-up on line or they may be just curious about the subject. They click on one appealing site, just to see what might be available on line, not realizing they will be overwhelmed by a stream of offensive images from porn sites that simply won't end, no matter how hard they work at it. A innocent person can be connected P2P to an almost ceaseless stream of truly repulsive material, and the law enforcement folks who spend their entire day trolling the Internet to catch someone who logs into a site. In fairness, some folks who have led upstanding lives can wind up getting really hooked on child porn and eventually get caught. We feel these folks, like any addict, need treatment before they need long sentences in prison. Our local authorities tell us that over 6,000 people in Albuquerque alone are on child pron sites daily; many of us actually think that number is smaller than the actual. Until we try to treat the cause, the number will grow, just like the number of persons addicted to illegal or prescription drugs grows.

In our law office, we recognize the criminal problem but are deeply concerned when it appears that too many of our state and federal authorities delight in destroying the lives of people who really need counseling and support, not absurdly long prison sentences. Just as excessive criminal sentences will not prevent a drug addict from craving his or her chemical dependency, ridiculously long sentences do not help the accused citizen salvage his life, let alone his family and job. What long sentences really accomplish is running up unnecessary costs to the taxpayers for incarceration of persons (who would benefit from short prison terms and counseling to lead honorable lives) and also destroy the lives of all who love these troubled souls.

We have dedicated ourselves to helping the accused and their families through this difficult times. The person may be entirely innocent, and, through retention of competent forensic experts to render objective opinions, we fight for their acquittal or dismissal of criminal charges. Other clients are eager for treatment of an obsession and the least exposure to prison time. We have had more than one client who realized years ago that he had become hooked on this kind of video (although none acted out on these fantasies) but could not get the psychological counseling that they wanted to get because the law requires psychologists who are informed of a client with such a problem to inform law enforcement. This is wrong; we need to help balance the scales of justice.


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An article about a case I am working on now: "Men charged with heroin trafficking accused of user’s death"  http://rdrnews.com/wordpress/blog/2016/06/08/men-charged-with-heroin-trafficking-accused-of-users-death/

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United States Court of Appeals
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Reel to Real: Lawyer Movies That Could Haunt or Help You
John Samore, Samore Law, Albuquerque
Reprint from Spring 2015 NMCDLA Newsletter
 
Legal proceedings have long been the source of dramatic tension in film, television, and theater.  These art forms profoundly shape public perceptions of our profession and our clients.  In turn, they are carried by jurors into deliberation, and even affect the legislators who determine public financing of indigent defense. It behooves us to be aware of popular cultural influences in our efforts to protect the rights and salvage the lives of our clients.  Reel to Real will examine some "lawyer movies" that have influenced impressions of defense attorneys and the justice system at work. With references to a famous scene or character, images that have become bigger than life through popular culture, we can gain helpful insight into, and persuasion with, jury panels and official decision-makers.  Movies are also a vivid way to illustrate, in mentoring younger colleagues. 

"Better Ask Saul" is a prime, local example. The new hit AMC series has already received rave reviews and may be destined for a long run with wide viewership.  Set in Albuquerque, the star is a hustler-attorney and, as we laugh or shake our heads at his shenanigans, we also cannot help but wince.  When we represent our client, will we be seen as cut from the Jimmy McGill cloth?  How do we actually see ourselves, individually and as a group?

Measure the damage when the long-running series "Law and Order" starts every show by telling its loyal audience that "the criminal justice system is made up of three" elements:  the police, the prosecutors, and the victims.  Could any other element of justice possibly be missing here?  How does such nonsense increase our challenges?  (As a wiser colleague than I once said, "Most jurors don't even realize we are bound by the same Code of Ethics as prosecutors.")  Ignore these realities at your peril -- and at your client's peril. 

Do you see yourself an Atticus Finch ("To Kill a Mockingbird"), ethical and honorable, even in defeat?   Better check that classic 1962 award-winning film more closely, because Atticus presents (in the climactic trial) one of the more pathetic defenses ever found in fact or fiction (those facial injuries are as likely to have occurred from a backhand blow) and exposes his own coward's morality.  When the villain who spit in his face (misdemeanor) is stabbed to death by Boo Radley, Finch quickly accedes to the convenient disposition suggested by the equally weak Sheriff, "Bob Uhl fell on his knife -- let the dead bury the dead."  Is this the depth to which we aspire?
 
Maybe you, like Tom Cruise's Lt. Kaffee, think that if he just keeps shouting at the imperturbable, esteemed officer, "I want the truth!" (in lieu of genuine cross-examination), his seasoned witness will suddenly fold completely, give up his career, and admit (paraphrasing here), "Yeah, I guess you got me; I been lyin."  Well, that's all he did in the execrable "For a Few Good Men," but it ain't gonna happen in any of our real lives.  (Aaron Sorkin, what were you smoking when you wrote this crap?)

Maybe a better model is Joe Pesci's streetwise "My Cousin Vinnie," who, for all his shady qualifications and inexperience, puts together a substantive defense on the merits that disproves the prosecution's murder case and carries the day for two innocent men.  In the twenty-two years since that surprising gem, few movies have captured what we are supposed to do in a courtroom:  follow the rulings (whatever they may be), maintain focus, and find the ethical response.  In an entertaining way, it also portrays a misleading admission, how discovery works, judicial discretion, and incisive cross-examination.  Might this movie be a good frame of reference for your panel?

Remember that the "old movie channel" TCM already has one-third of its audience under thirty-five years of age.  Few of our jurors will be of the caliber found in "Twelve Angry Men."  While over fifty years old, this famous TV-photoplay-then-movie (better-yet, the more recent, Russian-made "Twelve") is still popular with local playhouses and has been seen by many prospective panelists.  Use it to educate.
 
From the perspective of jury dynamics, how do we prevail on men and women who do not know each other or the accused to really care - about the facts, about their duty, about justice?  Why does the little guy or gal so often win in fiction to the adulation of the audience in the movie theater, but sitting in the jury box their cheers change to jeers - they cannot wait to lock another one away for "Da Guvmint?"  Can becoming conversant with movies help us reach them before it is too late?
    
Trials usually aren't that exciting. Many of our panelists grew up thinking Paul Newman could still win that medical malpractice case ("The Verdict") even after the judge threw out his only expert witness.  (Paul's good looks must have won over that jury, although we are never told what the appellate court inevitably did with that judgment.)   Many also expect lawyers to continually scream and interrupt each other as they do in "Witness for the Prosecution," "Judgment at Nuremberg," "For a Few Good Men," and so many others of more recent vintage.  How do we prepare jurors for the possibility - the inevitability, even - of being bored, while fulfilling their civic duty to listen to the evidence?  Better, how do we hone our examinations and arguments so they are compelling and effective?
 
Popular film will not be the sine qua non of effective jury selection, but it is one of the topics that usually makes panel members more comfortable, thus helping you establish rapport and elicit more candid answers.  (It is especially helpful if you have a judge who permits rare supplemental juror questionnaires or individual voir dire.)  Remind jurors that the issues before them won't be decided in less than two hours - a real trial has no trailer, no review, no plot summaries.  They are going to have the responsibility to decide who is the hero, or if there even are heroes and villains.

Begin in your voir dire to weave your client and his accusers into a memorable construct that may have helpful artistic references.  It can be as simple as asking for hands as to who saw a movie which has poignant similarities.  Where will their initial sympathies lie?  Are you the big-city boy before a small-town jury (or vice versa)?   What movie cops became so zealous (or corrupt) that they tried to convict the innocent ("Les Miserables," et al.), and what other cops have been honorable enough to admit their mistake?   What expert just forgot an important part of the puzzle, which led to a mistaken opinion (and an acquittal in "My Cousin Vinnie")?  What prosecutor hid the evidence, and which one did the right thing?

Trial drama has long been the wellspring of emotion and corruption, deception and redemption, triumph and tragedy.  We can and must be aware of the vivid images from popular culture that color jurors' thinking before they walk into the courtroom, and be able to incorporate those images - translate them into real life - for the betterment of our career and the fate of our clients.

Plea Bargains are the way most criminal cases resolve, and without plea bargaining, the criminal justice system would grind to a halt.  There simply are not enough attorneys and judges and courthouses and law officers to take each case to a trial. If you ever hear some politician telling you "There is too much plea bargaining" or "I'll put a stop to plea bargaining," you can bet your last dollar that he/she is all bluster and ignorance.  (And you can quote me when you tell them that!)  The lawyer's Code of Ethics and Local Rules REQUIRE us to always work toward resolution of a pending case by plea bargain, out of respect to judges' limited time for conducting trials and the enormous expenses of going to trial.

If you are considering some attorney who acts like prosecutors are the enemy and postures on a website how combative they are, be careful!   This is not even ethical.  We defense trial lawyers are quite capable of fighting to the death for you if a case goes to trial, but it does not serve most people (whether defendant or alleged victims) to go through the agony of trial.

Trials are exciting for the lawyers but agony for the participants.  A good Defense attorney or prosecutor should cultivate professional relationship with the other side, because it ends up serving the clients better than constant antagonism.  When you have honorable attorneys from both sides, reasonable cops, and sensible judges, plea bargains can be a very fair way to resolve pending cases.

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A few thoughts on the Nitty-Gritty of Selecting a Lawyer here:
 http://samorelaw.com/questions.html#selecting.
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