Almost every day, I help clients avoid criminal charges by getting involved in their cases before any charges have been filed.
Then, about once or twice a month, a client comes in who made the mistake of speaking to investigators or prosecutors without a lawyer. Even though they are no more culpable than my other clients, the ones who speak to law enforcement on their own are often charged with felonies that could put them in prison for years.
This is a terrible truth of our legal system: The people who “cooperate” sometimes get treated more harshly than the people who “lawyer up.”
A recent case gives some insight into why this happens. A client came to see me after he was charged with serious felonies for Medicaid fraud. When I called the prosecutor to discuss the case, I asked why her office had charged felonies.
Her answer was revealing. “Your client’s admissions gave us an open and shut case. Based on what he told us, we can prove all the elements of the felony charges.”
Here lies the disconnect between how ordinary people approach the legal system and how it actually works.
My client thought he was doing the right thing. He thought that the prosecutor would go easy on him if he came forward and just told the truth. During the interview, he emphasized how sorry he was and promised not to do it again.
The hard-nosed prosecutors have heard these stories a million times. Some of the more cynical prosecutors say, “Everyone is sorry after they get caught.” Even the more compassionate prosecutors say that they would like to believe everyone who says they are sorry, but they cannot tell who is truly sorry and who is just putting on the sorry face to avoid prosecution.
So, the prosecutors stick to the objective facts. If the facts add up to a felony, then they charge you with a felony. If you want leniency because you are truly sorry, then go tell it to the judge and jury.
Or, better yet, do not talk to law enforcement until after you retain a lawyer. A lawyer can look at the facts and talk with the prosecutor before you decide whether or not to cooperate.
What happened to my client who made the mistake of talking to prosecutors before getting legal advice? He pleaded guilty to a misdemeanor, paid $15,000 in restitution and a $250 surcharge. We avoided the tragedy of prison, but he now has a criminal record that will haunt him for the rest of his life.
Later that same day, I met with investigators to negotiate a deal for another client who never spoke to anyone in law enforcement before coming to see me. The investigators agreed to settle the matter if my client paid back $11,500. Period. No criminal charges. No criminal record. And my legal fee was a fraction of the legal fee that I had to charge the first client.
Every case is different. The results in one case do not guarantee a similar outcome in another case at a different time, under different circumstances, or with a different prosecutor. Sometimes, even with the best strategy, you end up with criminal charges and convictions despite doing everything possible. But you do have rights. And exercising those rights can make a difference.
You have the right to remain silent. You have the right to a lawyer. Do not give up those rights. My phone number is (212) 601-2728. Or click here to reach my office via email.
John Howley, Esq.
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