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Web Editorial

Guide to Selecting an Attorney in a Dietary Supplement Criminal Case

by Steven Wm. Fowkes

Over the last three years, assisting defendants in criminal cases involving charges of posession or possession with intent to distribute substances that are 1) natural metabolites of the human body, 2) present and even common in the human food supply, and 3) alleged to be Controlled Substances and Controlled Substance Analogs by police and prosecutors has taken an increasingly larger part of my professional and personal time. Sadly, many of these defendants are being convicted and sentenced to extended prison terms for their “crimes,” not because the courts are corrupt and politically driven institutions (although that does happen to be a regretably common occurance), but because their lawyers did not do a creditable job of defending them within the criminal justice system.

It has been my experience that...

Of those defendants who call me to talk about thier cases, who assure me that they will ask their lawyer to call me for legal strategies, only half of their lawyers actually call. And of those that call, most are not interested in learning anything about how these cases are different from their typical drug cases.

Of the dozens of lawyers with whom I have worked and spoken for the last five years, the honest, dilligent and corrageous ones can still be counted on one hand. [2015 update: I now need a second hand.]

Under such circumstances, is it possible that any defendant can get adequate representation in the United States? Sadly, I now think not.

However, I think that there are ways to compensate for this fundamental deficiency in the legal profession. Please read on.

Problem #1: The conflict of interest.

Attorneys are supposed to represent your interests to the best of their abilities. They don’t. And there are several really good reasons why they won’t give you their best. One of the primary ones is that lawyers are formally Officers of the Court, like the police, and they are “granted” priveleges and courtesies by that Court. They cultivate those priveleges and courtesies. On other words, they are reluctant to “bite the hand that feeds them” because they believe it will hurt their chances for good outcomes in future cases. They’d rather let you go to prison than piss off a judge.

Problem #2: A lack of courage.

In my experience, 90% of lawyers live in fear of judges. Well, maybe it is 98%. In a very real sense, Judges are omnipotent. So the fear is not necessarily misplaced. However, if your lawyer is too afraid to introduce motions because of this fear, and too afraid to object to the prosecutor using the term “drug” to describe the substance over which you were arrested, then you will probably be convicted.

Your attorney should have the courage to defend you.

Problem #3: Ignorance of the law

You might think that a lawyer would have a comprehensive understanding of the law. But that is not usually the case. It is especially damning to the legal profession that lawyers do not know the very law that citizens are expected to know, and follow.

One defendant in Texas, after finally realizing that his lawyer was not giving him 100%, took matters into his own hands by reading all of the Texas statutes. He found a law that said that any substance that was legal under federal law (FDA statutes) was statutorily excluded from being a controlled substance. He hired a "second seat" lawyer, who negotiated his three felonies down to three misdemeanors. He never went to prison. Subsequently, other defendants with identical charges have been convicted and sent to prison. They relied upon their lawyers.

2015 Addendum:

This is all fine and good for pretrial issues, but what happens if the assurances that you have been given by your lawyer are not acted upon in court? Given the implied consent of having a lawyer representing you in court, any actions taken (or not taken) are assumed to be consistent with your consent and are binding. In other words, your rights to raise certain legal issues are lost if they are not raised at the proper time.

To break this consent, you must fire your lawyer. As I understand this, you can do this quietly and unobtrusively by telling your lawyer at the defense table that he or she is fired. But it might be more effective if you stand up and tell the court that you are firing your lawyer.

Once you have done this, you are unrepresented. Your consent to your lawyer's current actions disappears. This means that any actions that your lawyer failed to take in the current proceeding do not abrogate your rights to have those actions taken. As I understand it, this is not retroactive to previous proceedings, but I suspect that the judge has lattitude to call previous proceedings into question if such issues are raised at the time of non-representation, at which time the judge is supposed to be taking responsibility for your rights as an unrepresented individual.

Firing your lawyer is not necessarily an irrevokable act. You can state that you are concerned that concerned that a promise by your lawyer appears to have been broken and that you want to discuss the situation with your lawyer before making the decision final. After meeting with your lawyer, you can come back into the court and re-affirm representation.

Firing your lawyer may also not mean writing off any retainer you have paid. In some situations, the fired lawyer has to share the retainer with the new lawyer you will hire.