If you’re going through hell, keep going. Winston Churchill.
Yesterday, I was able to help a client close the book on an attorney’s mistake from twenty years ago. It is helping these clients find some peace from their past that makes the practice of law tolerable, even enjoyable nowadays. It is rectifying an injustice such as hers that drives the best criminal defense attorneys to fight the good fight. It is standing up for those who cannot or do not know how to stand up for themselves that truly defines the exceptional criminal defense attorney.
In this case, the mistake plaguing the client is not immediately apparent. In fact, most practitioners would not have seen what I will describe below as a mistake, but rather the cost of doing business and being charged with a felony in circuit court. In her case, the prior private attorney (who had been a federal prosecutor) was new to practicing in state court in Florida. While he may have been excellent in federal court, it appears he was somewhat naïve of how state court differs.
For an obscene amount of money (and I mean obscene), he was retained to represent this client. It is nearly impossible to figure out how a run-of-the-mill fraud case could garner such a gross fee other than the pure terror experienced by the client (which was happily exploited by the attorney for a disgustingly higher fee taken). Not surprisingly, a review of the case strongly suggests that not much work was done for that obscene price tag.
In the end, he was able to resolve this fraud case with a decent outcome (hardly worth the exorbitant price charged). Truth be told, most novice criminal defense attorneys could have achieved this outcome (and for far less). And make no mistake, in some circumstances, this outcome would be a fine outcome (until you factor in that the victim only wanted restitution, the client had no prior record and had an extreme terror of going to prison, and would have done anything to make the nightmare end). But again, at first blush and not knowing anything about the specifics of the client’s case, the outcome might seem like an outstanding job, well-done, and time to pop the champagne.
Unfortunately, the problem for the unsuspecting client becomes glaring when pulling back the curtain and view the case with the knowledge and skill of an expert. Undoubtedly, people who have never been in trouble before are terrified of the thought of going to prison and will do whatever they can to avoid it, even if they are innocent of the charges. In fact, avoidance of prison for most people is the sole determining factor for accepting a plea. It is the idea that a trial can be totally unpredictable, but the “bird in the hand is better than two in the bush.” With the specter of prison hanging in the air, the client decided to resolve her case.
And a condition of this negotiated resolution was that she would have to be adjudicated. She would become a convicted felon. Forever. All to avoid prison. All because that is what she was advised to do. (Let’s put it this way for the price she and her family ponied up through several mortgages and drained bank or retirement accounts, she could have paid for and had 10 or 15 jury trials, but I digress.)
Let us back up. How did we get to this point?
This bad dream started over twenty years ago with a scumbag guy that was her boss at work. During her tenure at this company, this dirtbag began to sexually harass the client and made her days a living nightmare. And when the client finally stood up for herself against this ne’er-do-well and voiced her claims to the human resources department, this slimeball accused her of stealing thousands of dollars in petty cash. Before she could defend herself from the claim, she was arrested and charged with organized fraud and nearly fifty counts of grand theft.
Although she maintained her innocence, kept her composure and her head held up high, she was terrified. What if no one believes me? What if I get convicted? I did not do this. She even filed a civil lawsuit against her employer.
In terms of the fraud case, not much of an investigation was done, if any at all. The case against her was spurious at best as several other people had access to the petty cash including (you guessed it) the sleazeball who was accusing her (and trying to deflect the situation away from him and a lawsuit against the company).
Young. Scared. And totally ignorant of the criminal justice system. She turned to her lawyer for guidance. I mean she and her family mortgaged properties and houses to retain this attorney to manage her through this nightmare. But most of all, she turned to this attorney for hope. What she got was the usual prepackage, microwaveable meal nonsense instead of a job truly well-done.
As a result, the client, with no prior record (not even a parking ticket), ended up pleading guilty in her best interest to the organized fraud charge. As a result of the plea, she had to pay back the restitution in full (money she did not take). And … she was now a convicted felon as a result of the “deal” that the attorney “worked out.”
Sure, the attorney did get the prosecution to dismiss a bunch of counts of theft, but the entire case was nonsense from the get-go, and to anyone who stopped and applied even a “window shopper’s mentality” of disinterest would have been able to see the flaws in this prosecution. Nevertheless, scared and relying on the advice of this insanely high-paid attorney, the client entered a plea. In fact, she believed that she did not have any other choice (because the attorney did not provide any level of confidence that her truth, the actual truth, would set her free).
To add insult to injury, based on the entirety of the situation, there is a decent probability that she could have fought the case and probably won an acquittal, but that is irrelevant as she plead over twenty years ago.
On the other hand, knowing that restitution was the focus, the only focus, her attorney could have negotiated for pre-trial diversion (as many first-time defendants charged with fraud cases are usually resolved (because the victim wants their money back)). Diversion has been an option in resolving cases such as hers for years and could have been on the table to resolve this case. For further clarification, a diversion program is a formal agreement between a defendant and the prosecution to resolve the case without court intervention.
Diversion is only available for persons with no record. It is not available for super serious offenses like homicide or rape. Diversion is kind of like probation but does not carry all the ramifications or statutory requirements. If the defendant successfully completes the diversion program, the charges are nolle prosequi’ed (also know as dismissed). The benefit of a diversion program is that the person can maintain a clean record. And, if the person cannot complete the program for whatever reason and fails out, then the person comes back to court and starts over from their arraignment.
In this case, the mistake was not negotiating his heart out to either allow the client to be accepted into the diversion program or to allow the sentencing court to withhold adjudication (and not formally convict the client). Negotiations like this take time and usually cannot be completed overnight. To develop a better outcome, the attorney must undertake investigating the case from top to bottom (leaving no stone unturned). It is through a thorough investigation, through pointed depositions, through pushing and prodding the witnesses, that certain facts are uncovered, and the weaknesses of cases can be revealed (and exploited for the defense if a resolution less than trial is desired). Sometimes, there are no weaknesses to a case, but in this particular case there were a plethora of weaknesses, and the grossly overpaid attorney should have done further due diligence to find those pearls and protect his client.
Felony convictions have consequences. People who become felons face many tougher obstacles in life than those without a felony record. Certain doors remain closed to convicted felons (like work opportunities). Many of these obstacles are complete nonsense based upon a 250-year-old myth (dating back to before America’s Independence) that felons are bad people. The idea is kind of preposterous nowadays because so many things are classified as felonies (that were not even crimes 250 years ago at common law). Think about it this way: Christian Slater, 50 Cent (Curtis James Jackson, III), Mark “Marky Mark” Wahlberg, Courtney Love, Vince Neil (of Motley Crue), Danny Trejo, Snoop Dog (Calvin Cordozar Broadus, Jr.), Robert Downey, Jr., Martha Stewart, and Tim “Tooltime” Allen are all convicted felons. Whatever your opinions of these actors, personalities, and entertainers might be, they are all convicted felons and I doubt anyone would think they are “bad” people because they were convicted of a felony or two years ago. And I doubt you are no longer going to watch the television shows and movies they are featured in because they are felons. Come on now?
Eventually, the client found me, and we discussed her plight. At first, I was not sure I could assist her with her case being so old, but I convinced her to allow me to look and review her case. My thinking was “you are already convicted – – what is the worst thing that could happen? … that I cannot help you?” Suffice it to say, most criminal defense attorneys presented with this situation would have shrugged their shoulders and sent the potential client on their way without further thought about the matter. After all, a conviction (like a diamond) is forever. On the other hand, maybe a few attorneys would have been empathetic to the misfortune of being a felon, but I cannot think of too many defense attorneys that would have the chutzpah to come up with and execute the plan that I did in this case. Only a few locally come to mind.
In the end, I was able to assist the client. I will not bore you with all the technical legal details, the over nine months of work, and interesting conversations with the state, but I will say it was a lot of work unwinding this twenty-year-old mistake. While she is not totally free of the stain of this case, she is no longer a formally convicted felon and will be able to seal this matter. Ten years from now she will be able to expunge the matter because of this work.
While this outcome may not be typical, it is why I do what I do. While I do not work for free (but rather for a fair price for my skill, experience, and effort), I am sort of a sucker for a hard-luck case. And I may not be able to help everyone fix their past, I am willing to try for the right price. While I do not own a time-traveling De Lorean, I am willing to put the honest effort in to see if something, anything can be done. And in most cases that is all anyone can ask of me.
And if you think I am happy about trashing another attorney, think again. This brings me no joy. In fact, I am embarrassed by it. Attorneys are professionals and should strive to do their absolute best. On the other hand, mistakes will happen from time to time. Unfortunately, there are many attorneys out there that should not be practicing criminal law at the state level because they kind of know what they are doing, but not really. And mistakes can permanently affect the client. Think of it this way – would be ok for the surgeon who is going to perform emergency surgery on a loved one to kind of know what he or she is doing? The question scarcely escapes its own statement.
If you or a loved one is currently facing criminal charges, then make sure that the attorney explains everything to you in such a way that you understand the difficult decisions you may be making as you make your way through the criminal justice system. And if you are not getting the answers you can understand, then contact another attorney.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-017 Felony Conviction: Personal Hell