Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
One of the biggest mistakes people make is waiting until the last moment to hire a skilled criminal defense attorney. They wait until close to their court date quite often in order to research the law and research lawyers. However, this deprives skilled legal counsel with important time upfront to do some immediate damage control. For example, everybody is familiar with the concept of plea bargaining but one of the things they are not aware of is something called charge bargaining. Charge bargaining is actually prohibited by the office policy manual of the office of the state attorney in and for the first judicial circuit. The first judicial circuit is Escambia, Santa Rosa, Okaloosa and Walton Counties but the other 19 state attorneys’ offices basically have a rule that says “The charge bargaining is prohibited”.
However, in fact, charge bargaining actually occurs. Where lawyer gets involved in a case early enough, one of the things you can do from a defense point of view is look at the evidence faster than you normally would and then talk with the state attorney about which charges should be filed against the clients. If, for example, five potential charges can be filed, the defense attorney can point out reasons why perhaps two of them should not be filed due to the existence of legal defenses the prosecutor may not yet be aware of. This can be beneficial to the prosecutor to prevent overcharging. When overcharging happens, the prosecutor has a problem. In order to reduce or substitute charges, the prosecutor who’s handling the prosecution of a particular case has to enter to a felony supervisor who then answers to a chief assistant, who then answers to the elected state attorney in Pensacola.
The elected state attorney wants the maximum number of charges that can be filed at the highest degree possible, however at the same time, he does not want his assistants reducing or substituting charges. This can cause divisional assistant state attorneys a great deal of difficulty in managing an enormous caseload. By intervening properly and without requiring or even asking the assistant state attorney who is actually handling the file to file certain charges instead of others, this can actually make their job easier later on if there is a plea bargain and it eliminates the felony supervisor and the entire chain of command from being an obstacle to settlement. The sooner defense lawyer gets involved in a criminal case the better.
What Does An Aggressive Pre-Filing Intervention Look Like?
There are two stages. One is the collection and gathering of evidence from the government, which usually does not happen until after filing but occasionally may happen before. The other is the first thing that we do is we try to get our clients in their right frame of mind. This is the single most important aspect of pre-filing investigation and intervention by far. A lot of people blow this off because they don’t take it seriously. However, when people do not have their mind in the right place, they are not able to recall events accurately, they forget certain things that happened or did not happen, they forget to tell their lawyers about things that happened or did not happen.
One of the first things we do after someone has had their stress significantly reduced because arrest is always a stressful process, prosecution is almost unbearable emotionally, and then once this has taken care of, unlike every client, and if it’s a favorable witnesses too to write out what is known as a fact pattern report. A fact pattern report is a 4-day process. On day number 1, I expect the client and/or a witness to hit their computer as hard as they can with a stream of consciousness rendition of what happened to them that ultimately led to an arrest. The reason we want a stream of consciousness rendition is that we don’t want anything filtered out. When I say we don’t want anything filtered out, I want to know everything including weather conditions such as the angle of the sun, if necessary.
It may seem like overkill but what’s going to happen is that when someone finishes this fact pattern report on day 1, they will then print it out, carry it with them, I recommend putting attorney client privilege at the top of every page, and I also recommend having a pen on the person’s body so that at any time, they can simply pick up their folder because you want to put it in the folder and keep your privacy, and then when things come back to them that are triggered by the normal everyday environment, what happens is they can put a note in the margins. We’ve actually had dismissals, jury trial acquittals and evidence suppressed because people did the 4-day fact pattern report process.
This is very specific to our law firm; other law firms are not doing this. The police do a version of it because they keep reports but by doing days 2, 3 and 4 whereby someone puts notes in the margin, that’s the single most important early intervention thing that any criminal defense client can do. It gets the lawyer and the entire legal team critical information as rapidly as possible in a thorough, easy to understand manner. Gathering facts from clients is too important to rely upon chatty office visits with the hope that nothing will be missed. By using this specific approach, people are able to recall far more information that can make or break a criminal defense case.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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