The Sixth Amendment to the United States Constitution guarantees the accused the right to effective assistance of counsel. In practice, however, a defendant who wishes to prove that he had incompetent or ineffective counsel at trial does not have an easy road to hoe in convincing the trial judge – or appellate court – to vacate a conviction.  As any of the top New York criminal appeals lawyers know, courts do not routinely grant motions for a new trial due to ineffective assistance of counsel as the result puts the defendant back to where he was prior to trial – without a conviction and out of jail.  That being said, if your lawyer works hard enough, a conviction after trial can be opened up due to counsel’s poor lawyering, no matter how bad the case is, no matter how long the sentence is – I know because we’ve done it.  Continue reading

Recently a client charged with serious federal narcotics crimes came to me with a tale of woe: his prior counsel who had been representing him during the investigation phase of the case had incredibly been simultaneously representing a witness who was cooperating against him in the same case.  When my new client was indicted he came to me, terrified, because a) his former lawyer knew all about his criminal background including the client’s culpability in the case for which he had just been indicted; and b) he was not an American citizen despite living in America since he was two years old; therefore, a conviction to any of the narcotics charges against him would result in his deportation back to a country he had not visited since he left as a child.  The client was desperate and without hope: his former lawyer had advised him to either cooperate with the government or, if deported, to attempt to illegally sneak back into America – two choices the client was unwilling to do. Within 15 minutes of meeting this client and hearing his tale of woe, I told him “I know you won’t believe this but what your former lawyer did to you may end up being your only chance out of this mess.”  Eleven months later, despite facing initially a minimum five to 40 years in prison pursuant to 21 U.S.C. § 841(b)(1)(B) and definite deportation, my client received just a 30 month sentence to a Travel Act charge (a non-deportable offense) and received a recommendation for the Residential Drug Abuse Program (RDAP) which could result in his release from prison in just over a year.  Moral to the story: as any of the best New York federal drug and narcotics attorneys know, when given lemons in a case make lemonade.   Continue reading

breathalyzer-test-300x199One of the more common questions a New York criminal defense attorney is asked at a cocktail party is what to do if stopped for suspicion of driving while intoxicated and the officer wishes to administer a breathalyzer test?  To start, be aware that there are two different types of chemical tests: the portable breath test prior to arrest (the so-called “breathalyzer”) and the chemical test at the precinct after you are arrested.  Whether to voluntarily take the test is a crucial question as it may impact not only the ultimate result of a criminal case if an arrest follows but could impact a defendant’s livelihood and liberty as well should there be a conviction.  The short answer? It depends. Continue reading

FullSizeRender-294x300(In last week’s post on winning high profile criminal trials (part II), I discussed the importance of thinking outside the box and creating an atmosphere in the courtroom wherein the government is fighting to keep up with the defense lawyer instead of the other way around: fighting the safe, conservative fight in a high profile case will result in a safe, conservative loss.)

A Defense Lawyer in a High Profile Criminal Trial Must Be Quick-Witted and Quick-Thinking

A sense of humor and ability to think on one’s feet are crucial hallmarks for any top criminal defense attorney.  Any of the best New York criminal trial lawyers I have known have had one thing in common: incredible senses of humor and ability to think quickly – and oftentimes hilariously – on their feet.  And there’s a good reason for this: when you’re defending a very difficult case with a tremendous amount of evidence against your client, the jury is ready to convict before the opening statements are completed.  The default position at the start of the case oftentimes includes a bored jury, disgusted with your client and just biding its time until they can convict and go home to their lives.  So what can a defense lawyer do to stop that runaway train to disaster?  Entertain the jury.  Connect with the jury.  Make the jury laugh.  It’s like anything else in life: make the jury like you enough that they’re willing to listen to what you have to say, willing to give you – and your client – the benefit of the doubt.  And there’s not much competition in the humor or likability department when going up against a prosecutor: first, prosecutors are by their definition required to play it much straighter than a defense lawyer can as they are representatives of the government; second, prosecutors are notoriously stiff and less entertaining than defense lawyers (though I have experienced some very rare exceptions).  Bottom line: if your lawyer can’t entertain you, the client, he’s certainly not going to have the presence during a high profile criminal trial to cause the jurors to follow him over the mountain to an acquittal.

GottiSep21-228x300(In my prior post on winning high profile criminal trials, I discussed the complete and total dedication to the task at hand as well as the needed confidence of the defense lawyer, born from over-preparation, which allows him to take the chances necessary to win a case all observers presume is a lost cause.)

Creativity and Courage Are Crucial If You Want to Win a Big Media Case

Many defense lawyers are afraid to take chances in a high profile case.  The reasoning goes ‘why take a chance of making a fool out of yourself when a good fight is all that anyone expects of you – and you’ll still get good publicity.’  Well, the main reason a great defense attorney will take chances is very simple: he actually wants to win, not just appear like he fought a good fight.  An example: during the Gotti case I decided early on that we would be using a very novel defense, namely that the defendant had actually left the mafia while serving a prior federal prison sentence and, because five years had passed since his withdrawal, the pending federal charges were brought beyond the statute of limitations.  Simply put, even if the defendant had committed the charged acts, if the jury believed the withdrawal defense, he would be acquitted. Continue reading

NewsdayTeflonJohn-219x300How do you win a high profile criminal case that the entire world is watching, you ask?  Many of the necessary concepts can be applied to the defense of any criminal trial, whether it be a federal RICO murder case or a state Assault case, but there are some additional challenges – and opportunities – that are particular to cases which have heavy media coverage.  In the end, when looking for the best New York criminal defense lawyer you can hire to defend you in what you believe is an impossible-to-win case, try to find a lawyer who embodies the concepts I will discuss below: complete and total dedication, confidence, creativity, courage, sense of humor, quick-wittedness under pressure, and lastly, ego.  Added all together, these traits in your lawyer will give you your best chance to win a publicly reported trial.  Remember: any trial can be won, no matter how dismal your chances appear at the start – as long as you find the right lawyer to fight for you. Continue reading

During just this past year, we have successfully represented a number of women who have been sexually harassed in the workplace – and a number of men criminally accused of sexual assault either in the workplace or in school.  In both scenarios, a dominant theme emerged: documenting the assault or harassment is crucial to the success of your case in both the civil and criminal contexts.  Because these cases often are boiled down to a “he said/she said” scenario, the existence of indisputable, supporting, documented evidence can make the difference between a huge financial settlement and pennies – and a decades long jail sentence compared to an investigation which does not even result in the filing of criminal charges.   Continue reading

Defendants seeking to reduce their federal sentences rely on their attorneys to make legal arguments pursuant to traditional methods; oftentimes, however, only the best New York federal criminal lawyers are well-versed in another avenue which can reduce a sentence by 12 months and garner a full six months of halfway house: the Bureau of Prisons’ Residential Drug Abuse Program or RDAP for short, passed into law by 18 U.S.C. § 3621.  Since 12 months off is 12 months off no matter how you couch it, shouldn’t you ensure that you receive such a reduction if eligible – especially if your sentencing judge is not inclined to give you any kind of break otherwise?  Continue reading

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Over the past ten days, both Congress and New York state have outlawed automated ticket purchasing software, known as “bots” designed to stop ticket brokers from buying up all the good seats to concerts, sports games and Broadway shows and preventing the tickets from reaching the ticket-buying public.  As ticket brokers are not particularly popular due to the general public’s inability to purchase tickets to events at face value, there was very little opposition to the new laws which heavily increase the penalties for those who use computer software to bypass security controls on a retail ticket selling platform in order to get around ticket purchasing limits or other stated ordering rules.  In New York state, additionally, the new law criminalizes the use of ticket-purchase software to purchase seats.  As these new laws are potentially devastating both financially and criminally (in the case of the New York bot law), ticket brokers who receive a subpoena for records or are a target of a criminal or civil investigation for use of bots are wise to engage experienced lawyers who since 1991 have represented ticket brokers in battles against the federal government, New York’s Attorney General’s office and Consumer Affairs on issues relating to the ticket scalping business. Continue reading

When the cellphone video was released in 2015 of former North Charleston, S.C. police officer Michael Slager shooting an apparently unarmed man named Walter Scott, while Scott ran away from the officer after a routine traffic stop, the country reacted in horror.  That Slager is white and Scott an African American only exacerbated the current simmering topic of race relations in this country as well as the national debate of how police officers use deadly force – which oftentimes ends with a dead black man.  Slager was charged with murder in South Carolina and also indicted federally on civil rights charges and obstruction of justice for lying to a grand jury when he testified that Scott approached him with a Taser.  Now, over a year later inside a South Carolina courtroom, the jury appears deadlocked with one holdout who refuses to convict the jury – and the nation wonders how could this happen?  Continue reading