DISCLAIMER: THIS LETTER IS NOT INTENDED TO SUPPLEMENT THE ADVICE OF YOUR LAWYER. YOU SHOULD HIRE A GOOD LAWYER AND TAKE THEIR ADVICE. THIS BOOK IS INTENDED FOR YOUR PERSONAL INFORMATION PURPOSES ONLY. This information is not intended as legal advice. This document does not create a contract between the readers and Megan V. Cook or the Cook & Cook Law Firm.
I know that you have been arrested, and that you are likely concerned about your case and concerned about your future. There are a lot of questions you may be wondering that you do not know how to ask. This letter is written to tell you, in easy to read terms, the best advice and tips you should follow to help yourself, your lawyer and your case. Having spoken to hundreds of inmates over the last several years, there are certain questions that come up time and time again about Texas cases. This letter serves to answer some of those questions as there is nothing more frustrating than being in jail, and not knowing what is going on with your case.
It is likely very annoying and troubling to you if no one properly read your Miranda Rights when you were being arrested. Regardless, you have the right to remain silent. This means that you do not have to discuss the facts of your case with anyone. You should not discuss your case with inmates, the police or the probation department until you have spoken with your lawyer. If an officer is questioning you, you should say “I am using my 5th amendment right to remain silent, and I would like to have my lawyer present.”The police are legally permitted to use many different forms of manipulation to try to get you to talk about the details of your case. They are permitted to lie to you and tell you that they have evidence that they do not have. The police will make it very appealing to you and very tempting to you to talk to them about your case. The police may offer you a deal like, “if you rat out three big criminals, we will let you go.” Do not take this deal without your lawyer, because again the police are not legally obligated to follow through with any oral deal they offer. Sometimes inmates listen to conversations in the jail and can become witnesses in defense cases. Do not talk to inmates about your case.
You have the right to consult a lawyer regarding your criminal charge. However, no one is going to give you a lawyer immediately. Rather, you have to tell the police that you wish to consult a lawyer. This will not get you a lawyer any sooner, but will prevent them from being permitted to ask you questions. If police leave you alone and come back a few hours later, you must again state that you wish to speak with your attorney to prevent them from questioning you.
“Why is it a big deal if I talk to the police if I am innocent?”The reason that lawyers always advise against speaking to the police is that the defendant can ruin his defense by doing so. Even an innocent person can be convicted of a crime. An innocent person can say something that makes him look guilty to the police. Everything that you say to the police is used against you. It is common for people to be arrested and believe that they can negotiate themselves out the situations by talking to this rational person that is dressed in a police uniform. You cannot negotiate your way into a better situation with the Texas police after you have been arrested. On an additional note, do not try to bribe or flirt your way out of being arrested by an officer. Bribing an officer is a crime. You are best off to be polite, identify yourself, and let the officer conduct his investigation without you saying anything aside from your proper name and date of birth
“The Officer did not read me my Miranda Warnings, so can I get my case dropped?” No. The failure to read the Miranda Warnings will only help your case if the officer made you, as a reasonable person, believe that you were not free to leave and then questioned you. The only way the Miranda Warnings will help you is if you answered the Officer’s questions after you were effectively under arrest, and your answers are now being used against you in your case. Otherwise, Miranda will not help you.
This paragraph offers a very basic outline of the search laws relevant to defendants in Texas. Police cannot search you without a reason for doing so. Most often, this right is violated when a police officer pulls over a person for a traffic violation, and ends up searching the person’s clothing and car. There are several ways that an officer can legally search you. It is very rare that a defendant can prove in a court of law that he was illegally searched. However, if you can prove you were illegally searched, than all of the evidence that the police found from this illegal search will not be used in your case. Your case will not be dismissed outright if you were illegally searched, but rather the State will have a more difficult time proving your case because now they lost evidence they were planning on using. Police can search you for weapons when they stop you, for the benefit of the officer’s own safety. If in searching for weapons, the police find drugs or illegal items, then these items can be used against you. Police can use any discovered items that you throw out of your car or off your person against you, as these items do not involve a “search.” Do not throw drugs or other illegal items, as you will lose the shield of the 4th amendment by doing this. Police can search you and your car if you are arrested for any lawful purpose. An officer can arrest you for outstanding warrants, or if the officer has a firm, well grounded belief that you have committed a crime. Officers do sometimes search people unlawfully and make up excuses in the report that make the search seem proper. If you were unlawfully searched, tell your attorney.
Getting the Right Lawyer
“How do I get a good lawyer?” You have a right to have a lawyer represent you for your case, but what good is having a lawyer if he does not care about you or your case? It is difficult to tell whether your lawyer is actually good as most of what a lawyer is doing for you is not necessarily something you can see (like trial preparation in his office, or negotiating with the prosecutor). In every single town there are a few criminal defense lawyers with a really good reputation. If you can afford those famous lawyers, then that is one way to find your way to having a good legal service. If you cannot afford the best of the best, then you are going to have to get more creative. Since you are in jail, it would be helpful if you have family or friends that can do some work to find you the right lawyer. Things to look at when choosing a lawyer:
What is the lawyer’s website like? If the lawyer is blogging about criminal defense in your town, then this lawyer is likely a great fit for you, as he or she is spending extra time thinking about and writing about the laws that are needed for your defense.
Does the lawyer have any results or victory pages on their website? While results in law always depend on the individual case, it is nice to see if the lawyer has had some success in the past with other clients.
Is the lawyer using social media? This actually matters because if the lawyer is using social media, then the lawyer is much more likely to be up to speed with technologies that can help the lawyer defend your case. The lawyer, at the very least, must know how to use a computer. Some lawyers still do not use computers, which is a huge disadvantage.
What does the lawyer look like? If the lawyer does not present himself or herself professionally, that would lead a bad impression on a jury if you ever had to take the case that far, so appearances do matter.
What does the lawyer charge, and is there a payment plan? If the lawyer’s services are close to free, then that should be a redflag to you. As with many things in life, you get what you pay for. On the other hand, if you can’t afford the legal service, you are better off not wasting your money on a retainer, as the lawyer is likely to withdraw if you quit paying him.
Is the attorney aggressive, or graceful? Depending on the facts of your case, you may want the classic aggressive attorney. On the other hand, you may want someone that will represent you with grace, and professionalism in a different way. You should consider what you think will be most persuasive given the facts of your case.
How long has the lawyer been in practice? The best amount of time is 5-30 years, in my opinion.
How Much Money Will Your Lawyer Charge You
Most lawyers are going to have to know some details about your case so that they can assess what amount of money they need in legal fees in order to properly represent you. The More time necessary to defend your case, the higher the fee. The more time in jail or in prison you are facing, the higher the fee. The lawyer will need to know what your criminal history is like, what court you are assigned to, what your goals are regarding the case, and what the facts of the case are. Lawyer contracts generally always say that if you are misleading about any of these details, that the contracted price can increase. Most cases in San Antonio, Texas cost defendants between $1,000 and $10,000. More severe felonies can cost over $20,000. If the case is the sort that is going to take all of the lawyer’s time for a year or more, or if you want the lawyer’s full attention on your case alone, then you can expect to pay over $100,000. Again, most cases at the State level will cost between $1,000 and $10,000. Importantly, you can try to negotiate the price that the lawyer quotes to you for your criminal defense. If you talk to various lawyers, you will inevitably find that lawyers charge different prices. The price does not necessarily correlate to the quality of the service, but if the price is too good to be true, the legal service is not going to be so.
On an additional note, if you do not pay your lawyer, he is unlikely to send your contract to a third party collections agency. Yet, your case defense is likely to suffer. Your lawyer most likely will remove himself from the case, without having to give you a refund. The court will know that you had a lawyer who removed himself from the case. You will be forced to pay a new lawyer who will not have the benefit of as much time for the defense as your first lawyer had. My advice to maximize your legal service is to find a lawyer you can afford, and pay him on time.
Here is a small note about appointed lawyers. If you cannot afford to hire a lawyer, then one will be appointed to you. All lawyers that are working on your case have a legal obligation to effectively defend you. Yet, all lawyers are not created equal. Appointed lawyers are paid less for your case then privately hired attorneys. There are some lawyers that do just as good of a job for their hired clients as they do for their appointed clients. Sometimes appointed lawyers deserve every bit of the attached stigma. Others are exceptionally hard working and great for your defense.
How to Talk to Your Lawyer
Your lawyer is an officer of the court. He cannot aid you in lying about facts or evidence during your case. However, do be assured that what you tell your lawyer is confidential. When you are in jail, you will be given your lawyer’s contact information. Use the lawyer’s mailing address to send letters. The lawyer will read your letters, and will likely respond. However, note that the jail personnel often open and read the letters. Do not disclose private information about your case in these letters. Rather, ask questions, and ask the lawyer to set up a jail visit with you. In my experience, the best thing you can do when talking to your lawyer is to be respectful. Do not threaten to fire your lawyer, or tell your lawyer that he is not doing anything on your case. If you have found that your lawyer is not helping you, simply go about getting a new lawyer. The new lawyer will be able to help communicate the change of lawyers to the court. If you cannot afford to get a new lawyer, you will want to keep the relationship you have with your current lawyer as civil as possible.
If all else fails, you can ask to approach the judge at your next court setting and request that the judge appoint an attorney to your case, but if you do this be prepared to specifically list the conflict of interest that you have with your current lawyer. Judges often deny defendants the right to get a new lawyer. As such, you must be prepared to specifically state reasons for the new lawyer. The fact that you cannot effectively communicate with your current attorney should be a sufficient reason. If you make requests to your lawyer in writing, and clearly communicate with your lawyer about your needs, he is more likely to accommodate you. Remember, that even if you and your lawyer do not get along at all, your lawyer still has an obligation to do the necessary legal work for an effective defense. Yet, I do believe that the more positive the attorney-client relationship, the better.
There are certain circumstances when you absolutely need to do everything you can to get a new lawyer. One such circumstance where you should fire your lawyer is if you have a good defense for your case, and your lawyer, from day one, has been trying to get you to take a plea deal. In many cases, plea bargain agreements are appropriate, and in the best interest of the Defendant. Yet, in some circumstances, it is best if you fight the case. Some lawyers are not fighters, and are afraid of trial. Some lawyers really will not work for you. If you have discovered that you have one of these lawyers, then it may be time to fire him. Note, that there is a difference between a lazy lawyer and a wise lawyer. If your lawyer is giving you solid explanations as to why it is not in your best interest to bring your case to trial, that is different than if your lawyer does not want to bring your case to trial because of laziness.
What Your Lawyer is Doing Behind the Scenes
It may be helpful for you to know what a lawyer is doing behind the scenes for your case. Here is a list of things your lawyer may be doing for you, and this list can aid you in asking your lawyer what exactly he is doing on your case.:
Your lawyer may be submitting subpoenas to get documentations, photographs, videos and other evidence that will help your defense;
Your lawyer may be writing and filing Motions. Motions are documents lawyers use to request things from the court like speedy trials, private investigators, suppression hearings or any other type of specialized thing your case may require. Motions can take hours to prepare and file.
Your lawyer may be preparing to approach the District Attorney and request the best possible plea offer on your behalf.
Your lawyer may be talking to your family about your case, if the lawyer has permission to do so from you.
Your lawyer may be preparing for trial by writing an opening statement, writing a cross examination and writing a closing argument (in fact there are about 100 things a lawyer does when preparing for a jury trial)
Your lawyer may be writing you correspondence regarding your case update.
Your lawyer may be reading cases from the past that are similar to your to help him with arguing at your hearing.
If you are wondering what your lawyer is doing for you, ask him specifically whether he is doing any of these above listed things
Plea Deals & Court Settings
9/10 times, defendants will eventually take a plea deal on their criminal case. A plea deal, or plea bargain agreement, is where you agree to a set of consequences for your crime. The plea bargain can consist of jail or prison time, community service, probation, fines and classes. Having spoken with hundreds of defendants, these are the reasons that they sometimes take plea deals:
You were caught redhanded committing the crime, and there is no way to win at trial.
You are facing many years in prison, and do not want to risk losing at trial.
You are offered probation and you want to close your case to get out of jail.
You have a long criminal history, and taking an additional conviction on your record will not change your circumstances.
Your attorney strongly advises against fighting the case at trial.
You want to close the case because of the stress involved.
You feel remorseful and are willing to accept consequences offered.
Your defense attorney gets a really good deal for you, and you are willing to accept it.
At most court settings that you attend with your criminal defense attorney, the purpose is for your lawyer and the prosecutor to meet up, review your file and see if a deal can be made to close out your case. Your defense attorney will be either trying to get your case dismissed or will be trying to minimize what you have to do for your plea bargain consequences.
Sometimes it may appear that your attorney is just sitting in the courtroom and not doing anything at all. It may be odd to you that the lawyer is not talking to the prosecutor for instance. Criminal defense lawyers generally know that some prosecutors are more reasonable than others. If the criminal defense lawyer asks the wrong prosecutor for a plea offer, then you could be in a worse position. Criminal defense lawyers are forced to confer with you often in the public courtroom at a whisper, and cannot always readily explain this to you. This may be why you do not know what your lawyer is doing exactly while you are in court together.
Depending on the location of your case in Texas, you will have to go through so many of these court settings before you will have any substantive hearings or your jury trial. The court wants you to resolve your case as soon as possible, so the only way you will come to court many many times is if you and your lawyer have a plan to fight the case in some manner. You can fight the case by trying to suppress illegal evidence, or by bringing the case before a jury. Your lawyer has to tell you what the plan is with your case. If you want to assure you get an update from your lawyer, send him a letter that asks to “keep you reasonably updated and apprised about your case.”
How to Increase Your Odds of Winning the Case
There are several things that you can do to assist your lawyer with the defense of your case. Your lawyer will specify those things for you, depending on your specific case. Some general things you can do are tell your lawyer about possible evidence that can serve to show your innocence. Do not wait to tell your lawyer, for instance, if there was a surveillance camera at the location in question. Do not wait to tell your lawyer the good the bad or the ugly about your case. The sooner you communicate with your attorney, the better he can assist you.
What You Need to Know About Trial
It is important for you to know this; You have an absolute right, by the constitution of the United States, to bring your case before a jury of your peers. You have a right to have a jury decide on whether you are guilty. If you tell your lawyer that you want to exercise this right to a trial, the lawyer has to abide by this wish.
There are many things that you should know about your Texas criminal trial. Your attorney will do most of his preparation for your trial in the last 30 days prior to the trial date. Your attorney will be doing tons of work on your trial case in the week prior to your trial in particular. At our Firm, if we have a case that is sure to go to trial, all other clients and all other cases are set aside so that we can prepare the trial case. Trial cases are enormously stressful for the defendant and also for the criminal defense lawyer. In order to best prepare for your trial, you should tell your lawyer everything that is important about your case defense at least 30 days prior to trial, but hopefully much sooner. Do not spring new information on your lawyer at the last minute. All of the defense information will be incorporated into your case, in the way your lawyer deems will be most persuasive.
If you are planning on testifying (which you have a right to do), you should spend several hours talking to your lawyer, so that your lawyer can adequately prepare you for going on the stand. Your lawyer will go over the questions that he or she is going to ask you, and will help you get ready for the questions the prosecutor is going to ask you.
You should also help your lawyer get a very professional looking set of clothes for you to wear each day of the trial. You need to have shoes, pants, a shirt, and a tie. You should wear professional colors like light blue. You should help your lawyer get together any other types of accessories or cosmetics that will help you with your appearance (like tattoo cover paint). The more you help your lawyer with these details, the better off you will be. You can help him by connecting the lawyer with family that can purchase these items and bring them to the jail for you to put on during your trial days.
When you are in the courtroom for your trial, you will be judged by not only your appearance, but by your body language. It will be extremely important for you to sit tall, not make immature facial expressions, and appear as calm and composed as possible.
When you start your trial, the first thing that will happen is your attorney will be arguing with the State about evidentiary issues. You will play a very small role in this part, but you will be sitting at the defense table with your lawyer. You can write notes to your lawyer on a legal pad, if you think of points that may assist him.
After these pretrial matters are handles, the courtroom will be emptied, and a large jury panel will be brought in. The trial will begin by doing voir dire (jury selection) The prosecutor and your lawyer will talk to the jury for purposes of finding bad jurors. You will want to help your lawyer spot bad jurors, by paying close attention to what the jurors say to the lawyers. If the jurors would disfavor you or your case for any reason, you should write down their juror number and call them to the attention of your lawyer after the jurors leave the courtroom.
After your jury is selected, you will be asked to stand up and plea to your case. You will plead “Not Guilty. (unless your lawyer instructs you otherwise). Then, the prosecutor and defense will make statements to the jury about your case. Finally, witnesses will be called to the stand for both the prosecutor and your lawyer to question. After all witnesses have been questioned, and all evidence against you has been presented, the lawyers will make closing statements to the jurors. The jury will then leave the courtroom and will go discuss whether they should find you guilty or not guilty. All of the jurors have to agree on the verdict. If the jurors cannot agree, then you will have a new trial at another time (or the state may dismiss your case after this happens).
I have only two pieces of advice regarding jail. 1) There will be other inmates, that will readily give you tons of advice about your legal situation. These inmates are so common that they have a name among the legal profession. They are called “jailhouse lawyers”, people who give other inmates advice as though they are licensed attorneys. Sometimes jailhouse lawyers are right, but most often they are not right about the advice they are giving you. Understand that if your lawyer is giving you different advice than your jailhouse lawyer, that you should follow your lawyer’s advice. 2) It is possible that other inmates can hear you discussing your case and then can become witnesses against you during a trial. Do not discuss your case with anyone in jail aside from your attorney.
If you have any questions about Texas criminal defense and/or your case, send a letter toMegan or Justin Cook at 214 Dwyer Avenue, Suite 300, San Antonio, Texas 78204.
Megan V. Cook