Step One Of Being a Good Client: Do Not Make Your Case Worse While in Detention

With the average length of time served by federal inmates more than doubling from 1998 to 2012 (from 17.9 to 37.5 months) it should not be surprising that approximately 10,000 federal inmates per year receive substantial assistance departures from judges at sentencing – meaning these inmates receive a break from sentencing judges due to their cooperation with the government.  This figure does not take into account the countless thousands of inmates who are desperately attempting to cooperate with the government but simply are not in a position to substantially assist in the “investigation or prosecution” of another individual – but that certainly is not for lack of trying.  U.S.S.G. §5K1.1.  For these reasons, criminal defendants who are detained prior to their trials face a dangerous reality having nothing to do with dangerous prison conditions: they are surrounded by inmates who will do all that they can to help the government convict them or, in the alternative, assist in bringing additional charges against the ignorant detainee.  It is imperative, therefore, that after hiring the best criminal defense attorney possible for their case in New York, New Jersey, Connecticut or elsewhere, defendants do the second most important thing: not make their case worse while incarcerated.  

Winning Your Bail Application Is the Best Strategy

To begin, one sure way to guarantee that a criminal defendant not cause his or her federal case to worsen after incarceration due to jailhouse cooperators is to win the bail application.  Too often lawyers treat federal bail motions as if it were a state court motion: slapped together quickly, sometimes with no supporting legal documents or character letters.  This is a huge mistake.  A lazy bail effort may doom an otherwise bailable defendant to multiple years in federal detention prior to trial.  Not only are the accommodations worse than home, it is also much tougher to assist your attorney in fighting your case while stuck in a prison cell.  Even longshot bail applications for non-citizen defendants can and should be won if the appropriate effort is made.

Talk to No One — Even Your Lawyer If He is Shady

Not every person charged with a federal crime has any prior prison experience – and prison officials do not go out of their way to teach inmates the do’s and don’t’s of how to not screw up their cases.  Some tips: presume that every person in prison is either cooperating against you or is a potential cooperator.  Therefore, do not discuss your case with anyone as they could be making a call to a prosecutor about you immediately thereafter.  I have been in many cases, additionally, in which imprisoned codefendants have cooperated against each other, even as they attended codefendant meetings with their respective attorneys in prison.  Prosecutors rarely go out of their way to protect the rights of their imprisoned targets; judges only slightly more often will suppress jailhouse admissions made by one inmate to his codefendant.  And do not be so certain that even your meetings with your attorney in the special attorney-client rooms of the prison allows you to have free conversations: if prison officials or the government have reason to believe that you are discussing criminal activities with that lawyer they can and will secretly record those face to face meetings.  Therefore, it usually does make sense to hire the best attorney you can who is also not a quasi-criminal himself.

Prison Phones Can Be Deadly

That large sign near the prison phones which indicates that all telephone calls are being recorded?  That sign is truthful.  Nevertheless, clients calling from prison always want to discuss their cases due to the difficulty of having enough face to face contact with their loved ones and attorneys.  This is a huge and often fatal mistake.  You think this is an obvious bit of advice?  I can count numerous times in which clients have ignored this advice – and the large sign by the phones – and made incriminating phone calls, sometimes fatally damaging their case as those recorded phone calls become part of the prosecution’s case in chief.  Even speaking to your attorney from prison phones does not make your calls privileged and private: the only attorney-client calls to and from prison which are not monitored are those which are arranged beforehand with prison officials.

Mail — And Email — Are Also a Problem

Same concept when it comes to inmate mail: the prison (and the prosecutors) reads every piece of mail that the inmate receives and sends out.  Mail labeled as attorney-client materials are also reviewed by prison officials but at least these materials are supposed to be opened in front of the inmate — but don’t bet on it.  Too often such mail is “mistakenly” opened by prison officials beforehand; nothing relating to a defense strategy or discussion about evidence should ever be put in mail to and from a prisoner. Regarding, email sent to and from federal inmates, the CorrLinks system, the Bureau of Prisons also reviews these electronic materials.

Be Careful In Prison — And Hire the Best Lawyer You Can

Winning your case is difficult enough as it is without creating more evidence following your arrest and detention. Be careful who you speak to, call or write to while incarcerated – and hire the best federal criminal defense attorney to win your bail application and render all of these potential pitfalls moot.

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series, New York Magazine and Ozy. He can be reached at (212) 581-1001.