SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Virginia Criminal Defense Lawyer John Katz, where we are here to regularly present to you information and ideas for beating your prosecution as best as possible. Now your host, John Katz.

SPEAKER_01 0:15

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DUI defense lawyer in Fairfax, Virginia. This is Beat the Prosecution, where you're going to learn more than you ever banked for. We are at 703-383100. Info at beat the prosecution.com, and our website is beat the prosecution.com. As always, so far, we're here with our podcast master, Abigail Sweigart. Abby, what's our topic today?

SPEAKER_00 0:44

Gearing up for trial and negotiations and bringing the big guns with you.

SPEAKER_01 0:51

Well, Abby, this is such an important topic, and so many potential clients I speak to say, I don't want a trial lore. I want me a plea lawyer. Well, what do you think about that?

SPEAKER_00 1:06

You know, I think we've said before there's not one size fits all. So some cases could be a plea case, some cases might have to go to trial, and you might get a better outcome going to trial. Um and so you want an attorney, I think, that's experienced with both, getting good plea deals and negotiations, as well as they're well versed in going to trial if that needs to happen.

SPEAKER_01 1:27

And what happens if a Laura goes to court not being prepared for trial, ready just to seek a plea deal?

SPEAKER_00 1:36

They will not gonna get the best outcome for you if they're not prepared and ready.

SPEAKER_01 1:41

That's right. Because to get a good plea deal or negotiation, there has to be a threat. But why are we even talking about this part yet? Because what if your lawyer can just win? There's several ways to win. There's getting a dismissal, there's getting an acquittal, also known as a not guilty. When you have a lawyer who has the trial mode on his or her mind, your lawyer is thinking, can the prosecutor even prove the case? Yes, you want a lawyer who's a good negotiator too, but you want a lawyer who's a good negotiator as well as a good trial lawyer. When the opponent knows that your lawyer is a good trial lawyer, that is the threat that backs up the prosecutor wanting to negotiate the case so that the prosecutor is not using up more time than they want to on your case because the prosecutor has other cases to deal with. Sometimes the prosecutor doesn't want to be caught with their pants down. And speaking of getting caught with your pants down, you have the right to plead not guilty. What is this stuff about being in the guilty plea mode? Is it because your friends have told you this? Is it because you see about this in the movies? The only way you know if you're going to win the case is pleading not guilty. So ask your potential lawyer, what is your trial experience? What is your trial ability? How much more will you bill me to go to trial versus not going to trial? How much are you willing to go to trial? How much do you like going to trial? How good are you at trial? Can you back that up by examples? I don't charge a dime more for going to trial. I go to court already for trial. I've tried hundreds of cases. Abby, you've been in court many times before.

SPEAKER_00 3:32

I have, yes.

SPEAKER_01 3:33

In what capacity was that?

SPEAKER_00 3:35

Um as a bailiff in Maricopa County in Arizona. So court administrative side.

SPEAKER_01 3:41

And have you witnessed uh contested adjudications in the courtroom?

SPEAKER_00 3:46

A few, yes.

SPEAKER_01 3:47

Including um testimony?

SPEAKER_00 3:50

I've witnessed a lot of um testimony by police officers for evidentiary hearings, yeah.

SPEAKER_01 3:56

What kind of evidentiary hearings?

SPEAKER_00 3:58

Um primarily for alleged sex offenders. Um those kinds of cases, they would have to testify for a probable cause.

SPEAKER_01 4:08

And have you seen a range of good testimony, bad testimony, obviously bumbling testimony, or even not even caring about the truth testimony?

SPEAKER_00 4:18

Yeah, I've seen you know quite a bit from the range of it all, because some people are prepared and know what their report says, some people don't know, or they have fill-in police officers to come and basically just read the report out. So there's a lot of unpreparedness, and there are some people that are very prepared for their testimony, and you know, you could tell that they've been practicing not practicing, but um gone over it with the prosecutor.

SPEAKER_01 4:49

And what do you tell criminal defendants about going into court for the first time and not being told by your lawyer what to expect on that court date?

SPEAKER_00 5:03

Well, that would be if I was in their shoes, I would be pretty nervous if I didn't know what's going on. Um you shouldn't be going into a courtroom if you don't know what's gonna happen or what could happen.

SPEAKER_01 5:14

And even though all criminal defendants have a Fifth Amendment constitutional right to remain silent, how important is it for their testimony to be prepared before the trial date?

SPEAKER_00 5:25

I would say that'd be a pretty big thing to have in your back pocket ready if you needed it to have it prepared.

SPEAKER_01 5:31

And what do we do here about preparing our clients for trial?

SPEAKER_00 5:35

We get them as ready as possible as we can, up leading into walking through those doors.

SPEAKER_01 5:39

And you know, Abby, sometimes when we know that our client is more likely to testify than not, sometimes they even get together a group of lawyers and non-lawyers to prepare their testimony to give the unvarnished truth to them. Because sometimes my clients think that just because I say that they gotta improve here and maybe uh leave out stuff there all within their uh oaths to tell the truth, that maybe I'm not reliable, but when they hear it from other people who aren't invested in the case, then their ears prick up a little more. And sometimes we get to those aha factors, and sometimes our client gets to new stratospheric heights, which is such a magical thing.

SPEAKER_00 6:17

And I think that's one thing as you know, a client or a potential client seeking a criminal defense lawyer is you you need to remember you're working with your lawyer for the best outcome for you. So you know, listening to their advice and working with them and not, you know, hiding those things, you know, in your testimony or maybe not being forthright or whatever. You know, you will work with your criminal defense attorney.

SPEAKER_01 6:43

And so many cases settle or otherwise don't go to trial that it's all the more important for you to find out what your potential lawyer's trial experience is. Abby, do you know how many cases I've taken at trial?

SPEAKER_00 6:56

Oh gosh, I'm sure it'd be a very high triple digits, maybe hundreds and hundreds.

SPEAKER_01 7:03

And do you know what my training level is for doing trials?

SPEAKER_00 7:06

The highest you can go?

SPEAKER_01 7:08

Well, not just the trials, but also I uh I beat the um the low acceptance rate for getting into the National Criminal Defense College's Trial Practice Institute, which is the gold standard for criminal defense lawyers. It's a two-week program. At that point, it was done in Georgia, and then I got into the second class of um the trial lawyers college when it was in western Wyoming. That's a four-week program, and that was highly competitive to get into. That was four dozen lawyers from around the country in the middle of nowhere, ten miles from the nearest paved road. Did you know that? I did not know that. It was on Jerry Spencer's ranch. Jerry's the greatest living trial lore. He's oh guess, gosh, I guess he's 94 now, or approaching that, and um without a so much of a cell phone signal, and this was back in 1995, so we didn't even have internet terminals. I didn't even have a an email address at the time. So this was eating, breathing, and pooping trial law.

SPEAKER_00 8:15

And so those are the kinds of things you're gonna want to ask a potential lawyer, their qualifications, like if they've been to those kinds of trial lawyer schools and criminal defense programs.

SPEAKER_01 8:27

And also do we keep our chops sharpened, which I do by joining with some of the greatest trial lawyers in the area several times a year with weekend sessions to choose one person's case and work it like anything. And uh sometimes my clients will actually pay for trial consultants to help prepare their cases. We have a great uh trial consultant named Don Clarkson, who I've been working with for years, he's amazing. And one client, in fact, had us hire Don Clarkson as well as an acting teacher. The idea is you're still being real, but what the acting teacher does is bring the real the best real self out of you. I'm gonna give you an example. When I was at the uh trial or as college, the O.J. Simpson murder trial hadn't gone forward yet. And for me to understand better the uh side of the prosecutor, because to know how to go against somebody, you have to get under their hide. I took the role of prosecuting O.J. Simpson. And uh the acting teacher, who is someone who actually worked on a nationwide uh playing uh uh comedy before, he pulled me aside. He said, What is your hesitation here and getting all your words and feelings out of here? I said, because I don't like the idea of prosecution. He said, Understood, but that's the role you're serving now. Uh so how about this? How about if you go back in there for your opening statement as if your younger brother's life depended on the outcome of the case? And then all of a sudden everything flowed. I don't know of any other lawyer who would suggest that. There is no resting on your laurels, on your laurels as a criminal defense lawyer. You have to keep going, keep going, keep going, keep improving yourself. Uh Abby, have you ever heard the concept from me of hot needles stuck in your eyes?

SPEAKER_00 10:17

On one or two occasions.

SPEAKER_01 10:19

What I like to say is it's more unpleasant for many prosecutors to have a trial with me than having hot needles stuck in their eyes. So if a prosecutor is facing a trial against me, they know that if they don't give me what my clients want for negotiations, they're gonna have a John Katz trial. And what that means is that no holds are barred. I'm going fully for the jugular, I'm going fully for the best defense. They can twist in the wind with discomfort if they want. I'm not there to try to get them to twist in the wind, but I'm not avoiding it either. Whatever it takes. Now, we're going to talk in a moment about how to prepare yourself as a defendant for court. Before we do that, Abigail, how do people reach us and what's the name of our show here?

SPEAKER_00 11:06

So we are Beat the Prosecution, and you can find us at beatheprosecution.com or you can give us a call to our office at 703-383-1100. We're in Fairfax, Virginia. If you want to email us, it's info at beatheprosecution.com. And lastly, our texting number, if texting is your mode of communication, is 751-406-7268.

SPEAKER_01 11:32

What's the area code again?

SPEAKER_00 11:35

571.

SPEAKER_01 11:36

Thank you. Now, if you drop us a line, an email or text, uh, we will go ahead and send you our little cheat sheet on what is needed for uh testifying in court and appearing for trial. Uh just go ahead and uh call the subject. Please can we have your trial cheat sheet and we'll get it right out to you. You want to integrate well with your lawyer and be a good team member with your lawyer all steps the way, and you want your lawyer to be a good team member with you as well. You have a trial date. Okay, does that mean a trial is gonna go forward? Not necessarily, but you have to be fully ready. You don't want to be caught with your pants down, you don't want your lawyer to be caught with your with his or her pants down. You know, one thing I like to say is I can have clients who will swear up and down, up and down every day before trial. I'm gonna take the last plea offer, I'm gonna take the last plea offer. We show up in court, the necessary witnesses there aren't again uh are not there. My client just has a change of heart. Can you imagine what happens when your lawyer is caught with his pants down? And what if he has butt rash? I mean, you know, I'm I'm being so graphic here. Don't let anyone on your side get caught with their pants down. You want your lawyer ready for trial. Okay, so let's say there is a trial. Uh you go up uh at a table in front of the judge, the judge calls the case, the lawyers start talking to the judge about preliminary matters, and then the prosecutor starts putting up witnesses. So if it's here in Virginia in district court for a non-jury trial, usually motion a motions hearing is starting first or integrated into the trial. What kind of motions hearing might there be, Abby?

SPEAKER_00 13:23

From the other side, from the prosecutor?

SPEAKER_01 13:25

No, from the from the defense. What kind of motions do we always file for our criminal cases?

SPEAKER_00 13:30

To dismiss, to suppress evidence.

SPEAKER_01 13:33

Suppression is one of the biggest ones. So I say to the judge, I filed a suppression motion before the court date. This includes to keep out my client's statement to the police and to suppress the evidence from the arrest of my client. I would suggest that we integrate it into the trial if it's a non-jury trial, or sometimes in some courthouses, we start with the suppression motion. What's going on during all of this? Pay attention to what's going on. Make sure that your lawyer gives you pen and paper. Find out from your lawyer how best your lawyer wants to communicate during trial. I suggest to my client, I know that at some moments you're going to want to talk to me directly, but just remember, if you do that, you're distracting me. If you write down neatly one idea per piece of paper, we are not trying to conserve paper. Make sure I see it before the next stage of trial. That's a whole lot better. So if we're going to do the motions hearing first, the judge hears testimony, your lawyer should be making some uh objections if anything is objectionable to coming into evidence and and is uh wise to object to. Once the and then your lawyer asks questions of the uh prosecutor's witnesses one after the other, prosecutor finishes questions of witness A, your lawyer asks questions of witness A, so on and so forth. Then if the judge says that this is a lawful arrest, you proceed further, further objections, first further direct examination and cross-examination. Once the prosecutor arrests his or her case, this is the time for your lawyer in Virginia to make a motion to strike the evidence. Meaning, judge, even if we assume for argument's sake that the evidence against my client is true and the testimony, it doesn't meet the elements of the offense. For instance, let's look at uh driving under the influence of alcohol, which means driving on a highway or could be on private roadway as well, under the influence of alcohol, or with a 0.08 or higher blood alcohol level in the county where the case is taking place in Virginia on the specific date or close to it that is charged. Do you know, Abigail? Sometimes I won trials just because the prosecutor hasn't put evidence in about the date.

SPEAKER_00 15:46

You would have thought they were perfect, but I guess they're still fallible.

SPEAKER_01 15:49

Far from it. I've had I've won trials where the uh charging document against my client didn't say what county in the state the uh alleged crime took place in.

SPEAKER_00 16:02

And if you just had the client take the plea deal, it would have been a totally different outcome.

SPEAKER_01 16:06

Exactly. That's where I was about to go, because one of my most fun ones was I had a possession of a handgun case, and the prosecutor asked the police officer, now, did you come in contact with someone in this courtroom on January 1st of 2020? And the officer said it was January 1st of 2021. And the prosecutor looks at the charge document and says, Judge, I moved to dismiss the case for a defective charging document because the charging document against my client didn't transpose or say the new date. I had no objection. Once that was done, that meant the case could never be recharged because of double jeopardy principles say that once the witness starts testifying at trial and the case gets dismissed by the request of the prosecutor, unless it's been hanky panky found by the defense, that means the case never comes back. And like you say, uh Abigail, if my client had accepted the plea offer in the case, we never would have found out that the prosecutor was going to screw up like that.

SPEAKER_00 17:11

And that's just goes to show that you need a lawyer that can prepare and get ready for trial and could maybe find those small things that taking a plea wouldn't be the favorable outcome, and that going to trial would have been the more favorable outcome. But if you have a lawyer that doesn't want to go to trial, you can get yourself into a pickle.

SPEAKER_01 17:31

That's right. I'm gonna talk a little graphically uh today. You might be surprised. Well, you know I don't have my limits when I want to talk, frankly. Was I talking about depends diapers earlier today?

SPEAKER_00 17:40

Yes, you were.

SPEAKER_01 17:42

And I was I said, you know, should we have a box of depens diapers for any clients who get particularly nervous about going to trial? And what was your response?

SPEAKER_00 17:50

Uh I said we won't need it because we have John Katz as or they would have John Katz as their lawyer.

SPEAKER_01 17:56

Exactly. Be ready to lean on me. Not not not uh not literally in the courtroom, but be ready to lean on me. If you start hearing some ugly things said about your uncomfortable things, well, first of all, ask yourself, are you surprised that you heard these things? You've seen the police report, you've seen the incident video, be ready for uncomfortable things, but be ready for me to snap back at what needs to be snapped back at. Don't expect I'm gonna object to everything that can be objected to if it's gonna go nowhere, but be ready for me to repackage the evidence in an honest way and as best a way as I can, and even to show prevarication when I can, to show lack of reliability by the witness uh against you and evidence as I can. Be ready to the more confidence you have in me to be able to do your case right, the better outcome I can achieve from you. Abigail, have you seen litigants uh being uncomfortable in the courtroom during uh contested adjudications and under under other circumstances?

SPEAKER_00 19:00

Yes, especially, you know, when they're people are giving statements or reading things about them that may or may not have happened or be truthful, and you can see them or at least in my position when I was there in Arizona, get visibly uncomfortable about the things that are being said about them.

SPEAKER_01 19:20

Well, what's the most bent out of shape you've ever seen someone get under those circumstances?

SPEAKER_00 19:26

I would say just free like uh frantically trying to talk to their lawyer or you know, who knows what they were saying because you can't hear from where I was sitting, but you know, you could you could tell that they were not happy and say, That's not me, or things like that. And then I've had people I've witnessed people when they got the opportunity to speak would say, Well, that wasn't true, that's not who I am as a person.

SPEAKER_01 19:51

Okay. Thank you for that insight. Now let's talk about testifying. Talk to your lawyer about preparing you to testify, even if you might not testify. Your silence cannot be held against you in court. That's what the Fifth Amendment to the United States Constitution says. And the U.S. Supreme Court has confirmed that if you testify at your suppression hearing, your words at the suppression hearing, for instance, no, I didn't go through a red light, it was a green light, even though the officer says I went through a red light and that's why he stopped me. If you testify at your suppression hearing, your testimony at the suppression hearing cannot be used against you during the trial that follows, uh, unless you testify, and if you testify, if you do so materially differently from your testimony at the motions hearing. So have your lawyer prepare your testimony for the motions hearing. Now, it's different though. The Supreme Court doesn't give the same protection. If you testify, no, the officer's saying he gave me my Miranda rights to remain silent, he did not. No, that's about your Fifth Amendment right to remain silent, and your testimony concerning your Fifth Amendment right to remain silent is not immunized about being used at trial. Nonetheless, when you get up on the witness stand, try not to have that be the first time you're sitting in that chair or from that position. Have your lawyer bring into the courthouse before your court date. It looks a lot different sitting at that witness stand looking out at the audience than it does being in the audience looking over the witness stand. If your lawyer can't get permission or get away with having you sit in the witness stand, at least go to the front of the courtroom, turn around, face the audience, have a better idea of what it's going to look like. Do not get to court late, get to court early. It's better to get there early and be bored and read a paperback book than to get there too late and then to find out you're catching up, catching up, catching up. Your lawyer has more to do on your court date than just to deal with finding you if you're running late. Get there on time. When you're testifying, what I'm going to tell you now can't uh replace what your law is going to tell you. But be ready for the following. Follow your oath. Don't over-answer or underanswer the question against you. Don't fight the question. Now, of course, your lawyer is supposed to be helping you out. So when your lawyer asks you a question, just answer the question. I tell my clients, speak at a sixth grade level. None of these big words. Don't try to go behind the question. When you're being cross-examined, if you think the prosecutor is trying to put words in your mouth or play, wait to see if your lawyer objects. And if your lawyer doesn't object, just answer the damn question. Don't add to it. Don't anticipate doing your lawyer's work for you. If your lawyer is good, your lawyer will figure out what to do for asking your follow-up questions asked to the prosecutor after the prosecutor asks the questions to blunt what the prosecutor's done and to turn things around. Now I'm going to skip some things and go right to the verdict. If you're at a trial in Virginia without a jury, the judge is going to start saying the reasons for the verdict and then tell you the verdict, or some judges are just going to read out the verdict. Typically, uh your lawyer, at least what I do with my clients, is going to have you stand up. That's not comfortable and you don't know what the judge is going to say. I tell my clients whether the judge says guilty or not guilty. Well, let's reverse it, because we like not guilty better. If the judge says not guilty or guilty, don't react. Of course, if the judge says not guilty, you get to get the heck out of there. If the judge says guilty, at least if it's a non-jury trial, then the prosecutor's going to say what he or she is looking for for a sentence, unless your lawyer is asking for another sentencing date and gets it. Your lawyer asks, and then I tell my clients, when the judge says, Do you have anything you want to say? At minimum, I tell my clients, you have the Fifth Amendment right to remain silent there. Some judges might disagree, but I say at least use the F-word. Now, this is a different F word than you might think. It's the word follow. I will follow your sentence. Now I have the SWF acronym. If you know you're not going to appeal, which is sorry for what I did, it was wrong, I will fix it. SWF, sorry, wrong fix. Now you've got to speak that from your heart. But talk to your lawyer about anything you're going to say in the courtroom. Of course, nothing on this program is legal advice. Now, if you have a jury trial, oh my gosh, that can really feel like twisting in the wind, where the uh four person of the jury hands over to the judge uh the jury's verdict, the judge looks it over, and then the courtroom clerk asks the four person what the verdict is. That can be torture. Talk to your lawyer about all this, get a lawyer who's going to be good at trial. Abby, what else would our listeners want to know about on this topic?

SPEAKER_00 24:50

Well, I think a main thing people might be questioning when they're, you know, shopping around for different lawyers is why would they want to spend more money for an attorney when you might not get a worse or better outcome by paying more?

SPEAKER_01 25:07

Well, um, it's a lot better to get an acquittal than a conviction, and sometimes some of my best negotiations have happened in the middle of trial. Sometimes the prostitute realizes, oh my gosh, this copperly stinks on the witness stand. I didn't realize he would. Uh so you decide for yourself, but I believe in the idea of overcovering risk. I would much prefer to buy a car that I know has been fully inspected and passed by the manufacturer as well as by my mechanic, than to get some hoop-dee that's around 50 years old, and we don't know if the speedometer has been monkeyed around with and we don't know what's going on with it. I believe in overcovering risk when it's my liberty, reputation, and life online.

SPEAKER_00 25:53

Well, and there could be serious consequences that follow someone past the court date that they might not think about when they're shopping for a lawyer.

SPEAKER_01 26:02

Exactly. Reputation, employability, immigration situation, being able to try travel abroad, healthcare licensing, military situation. Did you know, Abigail? I think we talked about this earlier today. I've got a client where I got a great result for him in court. He was caught red-handed with marijuana, several ounces, and he said that, yeah, I sell this, told the cops that. See, put that proverbial crazy glue on your mouth when you speak to cops. Don't speak to them. And we got him down to uh drug paraphernalia, which I thought was a lot better than possession with intent to distribute marijuana. But he contacted me recently. He said, I'm having trouble getting jobs just by that paraphernalia conviction being on my record. I was thinking to myself, well, it would have been a lot worse for jobs if you'd been convicted of possession with intent to distribute marijuana. But that's an example right there. A lot of people might think, ah, paraphernalia I can live with that. Overcovering risks is the best thing. To avoid convictions as best as possible is the best thing. To get the best possible and most favorable sentence if you're going to be sentenced is the best thing.

SPEAKER_00 27:04

And it's about you at the end of the day, and so you know, the lawyer's life is not on the line, but you want to find a lawyer that's going to fight like their life is also on the line with you.

SPEAKER_01 27:17

Your cause is my cause. Abigail, where can people reach us again?

SPEAKER_00 27:21

Beattheprosecution.com or calling us up in Fairfax, Virginia, 703-383-1100. Or you can send us an email at info at beat the prosecution or send us a text at 571-406-7268.

SPEAKER_01 27:39

I'm going to give a shout out to Abigail. She's great in front of the microphone. And I said to her a few weeks ago, I said, Abigail, please get a podcast for us started. And after she researched it and figured out how to do it, I said to myself, Oh, maybe we could have had our webmaster help out. Abigail did such a great job on this, but uh I think she went through some hoops in doing it, and I really appreciate it. Thanks for joining us for our fourth installation of beatheprosecution.com. Take care.

SPEAKER_00 28:08

Thank you for listening to this week's episode on Beat the Prosecution. This is a regular podcast trying to give people a leg up against police investigations and court prosecution. We welcome your contacting us at info at beatheprosecution.com and at seven zero three eight three one one zero zero