Choosing a Criminal Defense Attorney: 5 Things to Know when Hiring a Lawyer

Saul Goodman is not a real lawyer but his website is, unfortunately, not that unrealistic.

The highest search results are not always the best lawyers

The search result that comes up first might not be the best lawyer for the job. Any of the links shaded in yellow or on the right column of the google results page are paid advertisements. That is not a bad thing but it just means that the result is there, not because it's the the most relevant to your search, but because someone bought the positioning on the page. As you click the results, what do you find? Is it a lot of "I will FIGHT for YOU" or is it actual information that might help you understand your situation? Lawyers think about what goes into a website and the content there is probably an extension of their personality and worldview.

Attorney Referral Services

When you search for a Criminal Defense Lawyer on Google, many of the top search results will look like law firms, but they are not. Sites like "mycriminalattorney.com" are not real law firms but are referral services based thousands of miles away. You contact them, they will charge you a fee and then contact a local attorney to handle your case. If they charge you $3000, the local attorney might get $1000 of that to handle the case. You just paid $2000 for that service to send an email. A website that does not list a local location and phone number is not a local law firm.

Maine has no Public Defender's Office

Other States have a publicly funded office with attorneys who represent defendants that can't afford a lawyer. Maine does not have a such an office but instead has a court appointed attorney system. That means that certain attorneys have agreed to accept criminal cases which the court assigns to them. The state pays the attorney an hourly rate for handling the cases and the client has little or no obligation to reimburse the state for that fee.

A good Court appointed defense attorney can do excellent work for you

Whether you pay out of pocket or get an attorney appointed, a good lawyer is going to do the best job they can for every case they handle. Many of the best criminal defense lawyers do take some court appointed cases. Currently the hourly rate for appointed counsel is $50 and payment caps limit the maximum number of hours that an appointed attorney can bill on most cases.

You should be aware of some issues inherent in the court appointed system:

1. You don't get to choose your lawyer; the court is supposed to just appoint the next lawyer on the list. While many appointed attorneys do excellent work, some definitely do not.
2. Many court appointed attorneys do not specialize in criminal defense. While some do, others use court appointed work as a way to supplement a practice which focuses on some other area. A person facing criminal charges should be very careful to make sure that their attorney, whether appointed or retained, specializes in criminal defense. 
3. Third, there is a certain economic reality at work when a criminal defense attorney decides how to spend their limited time and the firm's limited resources. A conscientious lawyer would never neglect any case, and the bar overseers ensure that certain minimum standards are met. Still, when it comes down to it, there is the potential that a lawyer will choose to put extra time and effort into the privately retained case and not the court appointed one.

Choosing the Best Criminal Defense Lawyer for you

In the end, the best lawyer will have the experience and expertise you need, but just as important, they are someone that you like and that you can talk to and get along with. That defense lawyer is probably one that the DAs and judges respect and that a Jury can listen to, understand, and agree with. A lot of criminal defense attorneys fall back on aggressive language and pompous bluster. The reality is that the most effective lawyers don't really talk like that. It's a lot easier to yell at someone than it is to have a conversation, but effective advocacy is not about bullying people. The tougher job, and the more important job, does not have anything to do with arrogance, ego or bragging rights. Instead, it involves understanding and interpreting complicated legal issues in a way that benefits your defense, and then knowing how to persuasively communicate that perspective to a judge and jury.

Maine Prostitution Charges: Misdemeanor and Felony

Photo credit: Taberandrew /Creative Commons

Prostitution has been in Maine news a lot lately. There are at least three high profile cases right now: a Zumba instructor who may have offered services that her sign did not advertise, a man alleged to have invested in that prostitution business, and another prostitution ring operator who now faces federal charges for extorting money from a customer who circumvented the business and transacted with the girls directly. The complaint in that case is a pretty great read. It all gets one thinking about what Maine's prostitution laws actually prohibit and, what penalties can be imposed.

Maine's Prostitution Laws:

The Law is codified in Title 17-A, Chapter 35 and the statutes there prohibit "Engaging in Prostitution," Engaging a Prostitute" "Promotion of Prostitution" and "Aggravated Promotion of Prostitution." Only aggravated promotion of prostitution can be charged as a felony; the remaining charges are misdemeanors. While they aren't the most serious crimes, the stigma of being charged may be the most significant sanction for those accused.

Engaging a Prostitute:

People are charged with this if the prosecution believes that they were a prostitute's customer. A person engages a prostitute by "providing or agreeing to provide, either to the person whose prostitution is sought or to a 3rd person, pecuniary benefit in return for a sexual act or sexual contact as those terms are defined in section 251." This is probably the charge that the Zumba clients will face.

Engaging in Prostitution:

If the prosecution believes that a person was working as a prostitute, they can be charged with engaging in prostitution. The law provides that Prostitution "means engaging in, or agreeing to engage in, or offering to engage in a sexual act or sexual contact, as those terms are defined in section 251, in return for a pecuniary benefit to be received by the person engaging in prostitution or a 3rd person."

Sentences for most Prostitution Offenses:

A first offense for either crime is a Class E misdemeanor. That class of crime is normally punishable by up to $1000 in fines and 6 months in jail. Until 2013, the law explicitly provided that only a fine could be imposed and no jail time was allowed for a first offense of engaging in prostitution or engaging a prostitute conviction. In the wake of the Zumba case, the law was changed and now first offense engaging a prostitute can be punished by jail time. First offense engaging in prostitution is still punishable by a maximum $1000 fine and no jail.

If a defendant has a prior conviction for these offenses in Maine or another State within the past 10 years, the crimes becomes class D misdemeanors punishable by $2000 in fines and up to 364 days in jail. Until the 2013 law change, the "look back" period was only 2 years meaning only a prior conviction within the past 2 years would count to increase a new charge. Now, the look back has been increased to line up with other other Maine statutes (like Operating Under the Influence) which punish second offenses more harshly if the defendant has a prior conviction within the past 10 years.

More Serious Charges, Promotion of Prostitution:

The more serious offense is promotion of prostitution and aggravated promotion of prostitution. One promotes prostitution by:

1. Causing or aiding another to commit or engage in prostitution, other than as a patron;
2. Publicly soliciting patrons for prostitution...;
3. Providing persons for purposes of prostitution;
4. Leasing or otherwise permitting a place controlled by the defendant, alone or in association with others, to be regularly used for prostitution;
5. Owning, controlling, managing, supervising or otherwise operating, in association with others, a house of prostitution or a prostitution business;
6. Transporting a person into or within the State with the intent that such other person engage in prostitution; or
7. Accepting or receiving, or agreeing to accept or receive, a pecuniary benefit pursuant to an agreement or understanding with any person, other than with a patron, whereby the person participates or the person is to participate in the proceeds of prostitution.

Violation is a Class D misdemeanor punishable by $2000 in fines and up to 364 days in jail. If the defendant "promotes prostitution by compelling a person to enter into, engage in, or remain in prostitution; or ... Promotes prostitution of a person less than 18 years old" they commit the crime of Aggravated Promotion of Prostitution. This is a class B felony punishable by $20,000 in fines and 10 years in prison.

Maine Drug Possession Charges: Penalties and Defenses

Maine drug laws make it a crime to possess a whole host of chemicals. These include substances normally considered "drugs of abuse" like heroin, and many other medications that one needs a prescription to get. Under Maine law, a man holding crack cocaine and a man holding his wife's prescription might both be charged with the same drug possession crime. To help you better understand Maine drug possession laws, this article covers the following topics:

• Classification of Scheduled Drugs
• Drug Possession Misdemeanors and the Available Sentences
• Drug Possession Felonies and the Possible Sentences
• Marijuana Possession Charges
• Consequences of Conviction beyond the Criminal Penalties
• Possible Defenses to Drug Possession Charges

This post does not cover Maine drug trafficking laws but you can click that link for more. Drug trafficking can be charged as either a state or federal crime.

MAINE DRUG POSSESSION LAW

In Maine, possession of many drugs is a misdemeanor punishable by a minimum fine of $400 and maximum sentence of less than one year in jail. But the class of crime and the penalties imposed change based on the kind of drug, the amount possessed and prior drug convictions.

CLASSIFICATION OF SCHEDULED DRUGS

Under Maine Drug Law, substances are divided into schedules W, X, Y, and Z.

Schedule W includes:

• Stimulants such as cocaine and amphetamines 
• Opiates such as Methadone, Oxycodone and Heroin 
• some hallucinogens including LSD and MDA; and 
• Barbiturates.

Schedule X includes:

• some depressants 
• many hallucinogens including Mescaline, Psilocybin, DMT 
• Hashish; 
• some tranquilizers including Ketamine.

Schedule Y includes:

• Sedative and hypnotic drugs
• Phenobarbital
• Codeine 
• Diazepam.

Schedule Z is a catch-all category which includes all other prescription and non prescription drugs.

MISDEMEANOR DRUG POSSESSION PENALTIES

• Read this article for more details on Maine's criminal sentencing system

Possession of most Schedule W or X drugs is a Class D Misdemeanor punishable by a minimum sentence of a $400 fine a maximum of $2000 in fines and 364 days in jail. Interestingly the sentence for possessing schedule W Drugs can include probation even though probation is not usually available for misdemeanors. Possession of a Schedule Y or Z drug is a Class E misdemeanor with a minimum $400 fine and maximum $1000 fine and 6 months jail.

POSSESSION OF CERTAIN DRUGS IS ALWAYS A FELONY

Possession of opiate drugs such as Heroin, Oxycodone, Hydrocodone, Hydromorphone, and possession of Methamphetamine is always a class C felony charge. There is a $400 minimum fine and a maximum of $5000 in fines and 5 years in prison. Possession of Crack cocaine is a class C felony if the person had previously been convicted of drug possession or trafficking.

POSSESSING LARGER AMOUNTS OF SOME DRUGS IS A FELONY

As discussed above, possession of Schedule W drugs is normally a class D misdemeanor. However, Maine Law makes possession of larger amounts of some schedule W drugs a class B felony, punishable by $20,000 in fines and 10 years in prison. This applies to 14 grams or more of powder cocaine or methamphetamine and to 4 grams or more of crack cocaine.

MARIJUANA POSSESSION CHARGES

Marijuana possession in Maine is normally not a crime but is a civil violation if one possesses less than 2.5 ounces. The mandatory minimum fine is $350 dollars for less than 1.25 ounces and $700 for more than 1.25 ounces. If you have more than 2.5 ounces, possession becomes a crime. It's a class E misdemeanor for more than 2.5 ounces, more than 8 ounces is is class D, more than one pound is class C felony and over 20 pounds is a class B felony punishable by $20,000 in fines and 10 years in prison. Of course, Maine's medical Marijuana law permits qualified people to legally possess marijuana.

OTHER CONSEQUENCES OF DRUG CONVICTIONS

Like any criminal conviction, a conviction for drug possession shows up on a public background check. A conviction may also disqualify applicants for certain federal programs such as federal financial aid for students or federal housing and other subsidies. There is also the potential that those convicted could be classified as and "unlawful user or person addicted to a controlled substance" under 18 U.S.C. § 922(g). Federal law prohibits these and other people from possessing firearms or ammunition.

DEFENSES TO DRUG POSSESSION CHARGES

These cases are not as open and shut as people think. As with any crime, the State must prove all the elements beyond all reasonable doubt. The elements of drug possession are

1. That the person intentionally or knowingly
2. Possesses
3. What they know or believe to be a scheduled drug
4. Which is, in fact, a scheduled drug
5. For some felony charges, that the substance is a minimum amount of the drug.

For a good lawyer, there is a lot or room for defense in there. The issues are very fact specific but often questions arise as to whether the defendant had knowledge that the substance was there, whether they had a close enough connection to the material to be in legal possession of it, and whether the laboratory analysis confirms that it is the drug and that there is a certain amount of it.

Keep in mind that these charges usually start with the police detaining someone and then seizing the drugs. That action implicates important constitutional rights. The State must also prove that the police acted legally in detaining a defendant, searching for the drugs and seizing the substance. If that can't be proven, then the evidence should not be allowed into court.

The stakes are high and a conviction will stay on your record for the rest of your life. Pleading guilty guarantees a conviction and that can't be undone. It might make sense to at least talk to an attorney before deciding how to proceed.

Maine Medical Marijuana Law, Proposed Rules Changes

Maine has a pretty progressive medical marijuana law found at Title 22, Chapter 558-C. That law remains unchanged. But, under rule making authority granted to Maine Department of Health and Human Services, it has published new proposed rules. These rules would make some pretty substantial changes to the way the existing statute is applied.

Federal Charges for a man who used drugs and possessed guns

The Portland Press Herald recently ran this story:

Biddeford man arrested with guns now faces federal charges

Timothy Courtois had the misfortune to get pulled over with a bunch of guns. He then compounded his problems by making statements about his affinity for using marijuana and other drugs. He was orignially charged with some state crimes but things are now much worse since the Federal Unitited States Attorney's office has decided to prosecute.

Bad news for Mr. Courtois but great timing for me since I just published a post discussing the myriad ways that one can become Federally prohibited from possessing firearms. In that post I discussed 18 U.S.C. § 922(g), the federal law that details the categories of prohibited persons. Paragraph (3) prohibits firearm possession for "a person who is an unlawful user of or who is addicted to a controlled substance." This is one of the laws that the defendant is alleged to have violated in the Federal Criminal Complaint.

Defenses to Federal Firearms Charges?

There may be some interesting opportunities for defense here. As noted in the earlier post, the unlawful user category is not as clearly defined as some of the others. The applicable regulations define the term as follows in part:

"Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician...."

Does Courtois fall into this category? At this point it is unclear. It might well come down to a trial where the jury with decide.

Domestic Violence, Protection from Abuse Orders and Other ways to Loose Your Guns

Some folks probably know that certain convictions can prevent you from possessing firearms. Few realize how many different legal proceedings can trigger the prohibition and completely torpedo your second amendment right to posses guns or ammunition.

Federal Law, 18 USC § 921 defines some of the important terms including "firearm":

The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Further definition of terms can be found at the Electronic Code of Federal Regulations. This article takes definitions for 18 USC § 921 and from those regulations. 18 U.S.C. § 922(g)(1-9)lists the the categories of prohibited persons discussed below.

People Convicted of Felonies:

Many people know that felons can't posses firearms. Felons are, under 18 U.S.C. § 922(g)(1) people convicted of a crime punishable by imprisonment exceeding one year. It does not matter that the sentence imposed was less than one year so long as the crime could have lead to a sentence of over one year.

People Convicted of Misdemeanor Crimes of Domestic Violence:

Misdemeanors, by definition, have a maximum sentence of less than one year. Still, the federal prohibition kicks in under § 922(g)(9) if you are convicted of a Misdemeanor Crime of Domestic Violence (MCODV) as defined by § 921(32)(A):

1. Has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; and, 
2. At the time of the offense, the defendant was:

• A current or former spouse, parent, or guardian of the victim;
• A person with whom the victim shared a child in common;
• A person who was cohabiting with or had cohabited with the victim as a spouse, parent, or
• guardian; or,
• A person who was or had been similarly situated to a spouse, parent, or guardian of the victim

In Maine, that means that Domestic Violence Assault, Attempted DV Assault, and some kinds of DV Threatening or Terrorizing charges can trigger the prohibition.

What is a "Conviction"? Does a Deferred Disposition Count?

The federal law defers to the state on this issue, as explained by § 921(20):

"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

Generally, one is convicted once the court finds you guilty and that finding is made with a guilty verdict or guilty plea. In Maine, Misdemeanor Domestic Violence Crimes are often resolved with a "Deferred Disposition." This requieres the defendant to plead guilty but allows sentencing to be deferred for some time, usually one year. If the defendant avoids new charges and complies with conditions over that period, the defendant returns to court for a 'sentencing' date but no sentence is imposed and the charge is reduced or dismissed.

Luckily, the deferred disposition statute, 17-A MRSA §1348-A(4), provides that: 

"For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence." 

If one is successful on the deferred, usually no sentence will be imposed on the Domestic Violence charge and so no conviction and no gun ban will attach. Also, while the misdemeanor deferred disposition is pending, no sentence has yet been imposed and so no federal prohibition applies.

Defendants in civil Protection From Abuse proceedings:

In Maine, people often call these orders "PFAs" and they are filed by a Plaintiff seeking to restrain a Defendant from doing certain things. The parties must be "family or household members" as defined by Maine Law. 18 U.S.C. § 922(g)(8) prohibits firearm possession by a person subject to a court order that:

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury

This means that anyone who has a Maine 'PFA' against them probably commits a federal crime by possessing a firearm. Some lawyers think that the prohibition is triggered only if you have a contested hearing on the PFA and that the prohibition does not kick in if you agree to a protection order without a finding of "abuse." That is wrong. If you have "actual notice" of a hearing and an "opportunity to participate," that is enough. The fact that you choose to waive that opportunity and agree to an order, will not save your gun rights. This prohibition is not a lifetime ban, you are only baned while "subject to" the order. PFAs generally expire in 2 years unless the court grants an extension.

Defendants Under indictment for a Felony:

Here is something a lot of people, including some lawyers, don't know. Federal law limits the gun rights of people who are not convicted, but simply indicted for a felony. 18 U.S.C. § 922(n) provides:

It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

While this is not a ban on possessing guns, it does mean that you can't buy a gun or receive a gun while you are under indictment.

Other People who May be Federally Prohibited from Possessing Firearms:

There are a bunch more categories under 18 U.S.C. § 922(g) and these include:

• a person who is a fugitive from justice. § 921(15) defines this to mean "any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding."
• a person who is an unlawful user of or who is addicted to a controlled substance. This is a confusing category. The regulations define this, in part, as: "A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician...."
• a person who has been adjudicated as a mental defective or who has been admitted to a mental institution. The regulations define this as people whose mental health condition rendered them incompitent or not criminally responsable as part of a criminal case. It also includes those who have "been determined by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs." This includes anyone who has been involuntarily committed by the court. 
• an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
• a person who has been discharged from the Armed Forces under dishonorable
• conditions;
• a person who, having been a citizen of the United States, renounces his citizenship;

What Sentences can be Imposed?

18 U.S.C. § 924 covers the penalties that apply for violation. The maximum prison sentence is 10 years for violating 18 U.S.C. § 922(g). For violations involving § 922(n), the "under indictment" prohibitions, the penalty is a maximum prison term of 5 years.

Carrying a Concealed Weapon narrowly limited by Maine Supreme Court

Maine's Carrying a Concealed Wapon law, or at least it's application, has long been a thorn in the side of defense attorneys. The statute makes it illegal to: "Wear under the person’s clothes or conceal about the person’s person a firearm, slungshot [yeah, that is what it says in the law], knuckles, bowie knife, dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense of a person." The law specifically does not prohibit carrying "Knives used to hunt, fish or trap...". 

For years, this has been a great catch all offense giving a pretext for arrest in any case where a person is carrying a leatherman. District attorneys took the view that any item which could be used to injure a person and which could fit in a pocket or on a belt out of view as a "concealed weapon." But this is no longer a correct interpretation of the law. Really, it has never been a correct interpretation of he law but now the SJLC explicitly agrees. In the recent case of State v. Jones, the high court overturned the the conviction of a man found in possession of two ordinary, folding knives. They rejected the DA's stock, 'it would really hurt if you got cut with it' rational and reasoned that:


"Even though most knives, including the knives at issue here, are capable of causing serious bodily injury, the plain language of the statute establishes that the Legislature did not intend to prohibit the concealment of all knives. Rather, the statute expressly prohibits the concealment of only those knives that are specifically designed to be “usually employed in the attack on or defense of a person....whether a knife is a 'dangerous or deadly weapon usually employed in the attack on or defense of a person'...requires a fact-specific inquiry to determine whether the knife is designed for use against human beings or whether its primary function is to attack or defend a person."

Maine Supreme Court overturned the conviction:

"The [trial] court, in its written findings of fact and conclusions of law, noted 'the size, the heft, and the sharp and serrated edges of the [blades]' and that 'these knives would easily do significant damage to human tissue, human organs and major arteries.' Such a description, however, could be given of any knife and renders Jones’s knives indistinguishable from those that the Legislature has expressly exempted from the prohibition against concealment. Thus, there is no factual basis in the record to support a conclusion that Jones’s knives fall within the class of knives that the Legislature has prohibited individuals from concealing."

So good job Law Court! This is really great. They don't like to vacate convictions and that is what they did here. Maybe this is the start of something special.