Come Back With a Warrant
Episode 29: Privilege, Power & Prosecution: How Money Reshapes Justice
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Brandon: The justice system is not friendly to people who lack resources.
Monica: No, that's right.
Brandon: If you are coming into the justice system from a low socioeconomic position, meaning you don't have a lot of money, or really any money, and your social background is one of a certain type — and we'll get into that — you run a risk of having the justice system run you over. And it's not fair, but having money makes a massive difference when it comes to a criminal case and being charged in a criminal case. And that starts from the very beginning. In a criminal case, we always talk about, and we've talked about on this show before, that we start at some investigation. For somebody that has money and has resources, the moment that they become aware that they're the subject of an investigation, they can go out and hire a private attorney, and that attorney is going to start doing something on the case.
Monica: Yeah.
Brandon: Whether that's contacting the police or contacting the state attorney's office or contacting the media. It really could depend on the situation. But when you are someone that doesn't have money and you ultimately, let's say, will end up with a public defender, there is nobody to take early intervention for you on your behalf and do something. And frankly, for us, as private attorneys, when we are able to get involved in a case that early, it can have a huge impact. It can be the difference between a case making its way to the state attorney's office and someone being prosecuted —
Monica: Yes.
Brandon: Or not at all. The case going away completely.
Monica: Yeah. Sometimes I even quote my clients, like, as a pre-filing fee, and then if the charges get filed, then they would be charged, like, for the case. Because if I can get the case dismissed, that's the goal, you know, in advance of getting to the court date that's scheduled for the state to announce if they're going to be filing charges or not. And that then starts — we start our work, like you're saying, once we get hired on the case. When I was a public defender, we were appointed on cases sometimes in between, you know, first appearance and the initial case conference or the first court date before charges are filed. But because of the volume of cases, your attention is not on how I can get this case dismissed, because sometimes they do just go away by themselves. But other times you do have to get a non-prosecution affidavit signed. Other times you need to contact some witnesses or get some mitigation presented to the state, or maybe you can do some damage control in advance of the time that they have to actually file charges. So there's so many instances that I encounter just as a public defender where there were very few we would get assigned to, and it would be, like, almost right before that first court date. And we didn't have time to go through those cases and actually attack those cases in advance of that court date. So, obviously you get a public defender when you're at first appearance, but that's for purposes of the first appearance. You're not going to have that attorney represent you throughout the course of the case. You get assigned to a new public defender who is on the line if you're a felony line attorney or in misdemeanor — that would never happen, actually. If you were in county court, you would never get a case in advance of that first court date. You would get a case pretty much at arraignment and moving forward. So that was only a thing for felonies. Also, on top of that, the bail bonds system. Like, paying to get out of jail —
Brandon: Yeah. And we're absolutely gonna get to that, 'cause I wanna go in kind of order of what is happening. The life of a case, pretty much.
Monica: The life, right.
Brandon: Yeah. 'Cause I think if we follow the life of a case and explain where money comes in and money makes a difference, I think that really shines a light on the huge disparities between —
Monica: Yeah.
Brandon: The two. Because even in the example you're giving, you're talking about at arraignment. That's after they've been arrested. So a person is arrested. And I — you know, I'm sorry I interrupted you, but —
Monica: No, it's okay. No, it's not a problem.
Brandon: You get to the point where the person is arrested and you go before a judge —
Monica: Yeah.
Brandon: In most situations, or in certain cases, you don't necessarily go before a judge if there is a bond already presented to you.
Monica: Exactly.
Brandon: But if you don't bond out and you go before a judge, and a judge is going to assess a bond, now we have two systems where you have somebody that has no money, has a public defender assigned to them that's gonna represent them at that one hearing, that talks to them maybe for a few minutes before the hearing, and puts in an argument that's gonna be for the best bond possible, and hope for the best. If somebody hires a private attorney, that private attorney, before the first appearance hearing, is gathering as much information as they can.
Monica: Yeah.
Brandon: Speaking to as many witnesses as possible. Like you said, if there's a victim in the case and the victim is somebody that doesn't want the case to move forward, we can get an affidavit from them saying they don't wanna prosecute, and that can be used to try to drop the case initially. You have all of these different tools available before that first hearing, and then when a private attorney goes before the judge and they're addressing the bond, there are all of these additional things that we can tell the judge about the person's background, about the person's living situation, about the person's job. And somebody without the financial resources, or maybe with no job at all, they're not gonna be able to do that.
Monica: Yeah. Right. And also, touching on that point, if you get hired for first appearance at the time of arrest pretty much, or shortly thereafter, we can go see the client. We can talk to the family. We can bring the actual alleged victim, if they don't wanna prosecute, to court to tell the judge in court, we want this case dismissed. We don't want a no-contact order in place. We want this person home. Please release them. We can do so much in that 12- to 24-hour period, because first appearance is scheduled that next day if it's not a holiday. Actually, even on holidays.
Brandon: Well, it always —
Monica: It depends, yeah.
Brandon: Depends, yeah.
Monica: It depends when the person's arrested. It depends when the court is, you know, going on. 24 to 48 hours, I should say. But at that point, you can actually present so much stuff in front of the judge that could get that person released. Versus when you get there, the public defender's then appointed, talks to you briefly, and is not your attorney for the rest of the case. Then it gets transferred over to another person who has to then get reacquainted with you, reacquainted with the case, reacquainted with the alleged victim, and you kinda have to start over in that sense. But that is just one of many issues that come up for people who have resources or who don't have resources that can affect how their case proceeds and their actual bond setting.
Brandon: Exactly. So now the judge sets a bond and the bond amount is some sort of usually monetary amount, potentially with more conditions like, you know, maybe house arrest or some supervision requirements.
Monica: And that's the other thing, sorry, 'cause you said house arrest.
Brandon: Yeah.
Monica: House arrest, you have to pay for.
Brandon: Correct.
Monica: So that's another —
Brandon: Which is another —
Monica: Privilege of having money — is that to even have the option of house arrest is something that you need to be able to afford.
Brandon: Exactly.
Monica: You're paying for a monthly fee for it. You're paying for basically the installation of it. You have to have a landline, which nobody even has anymore. Most people, when they get on house arrest, I have to tell them, you have to get a landline. And it has to be with a specific provider. So there's so many different steps. And if you lack just basic resources or you don't have a job or you just have enough just to get by every month, or you're a parent with kids and you don't have the option or the luxury to pay for house arrest, now your option is to be in custody and pay a bond or a percentage of a bond, or in this pretrial release, which is different in every county — but also you still have to pay for that.
Brandon: Right.
Monica: So those options are not — there are alternatives, but they still come with a fee.
Brandon: Right. And if you are able to post that bond and you're able to get out, now you have some advantages because you can be out while the case is pending. You can still work, you can still maintain your livelihood, take care of your kids, take care of your family while the criminal case is pending. Somebody that doesn't have the financial resources is sitting in custody, they can't bond out, so now they are sitting there wondering, is there somebody working on my case? What are they doing on my case? And they're frantic because they have nothing else to do, while they're in jail, all they're doing is thinking about what's going on and they don't even know because they don't have necessarily one attorney that's working on the case. Maybe the public defender's office hasn't even assigned them an attorney yet. So they're just sitting there without the ability to do much of anything. Meanwhile, somebody with resources, like I said, they're out, they're working, they're maintaining their livelihood, they're contributing to their defense with their defense attorney.
Monica: Yes. I was just —
Brandon: They can speak with their attorney potentially, and can afford investigators, can afford to have the case worked up early.
Monica: Yeah.
Brandon: By their attorney and be out and be able to cooperate, be able to go in routinely to see their attorney and speak to them. Where someone, even if I have somebody in custody now, I have to set up different video conference or I have to go to the jail. I don't have the easy luxury of having communication with them whenever I want —
Monica: Yeah.
Brandon: Without doing something first.
Monica: Yeah. And not only that — when you say contributing to your defense, obviously depending on what the charges are, but if your case is, like, drug-related and you wanna show that you are, you know, rehabbing, you can go to rehab. You can do mental health, if it's a mental health situation that was related to it. There are so many ways to — like, with DUIs, you know, we often have our clients start with DUI school. That's just something that's kind of standard. And so there are things that you can do to kind of get ahead of the game by contributing to your defense, by engaging in some sort of mitigation in order to, one, prepare for negotiating with the state. And two, whatever it is — sentencing or trial, whatever your strategy is with your attorney. But at the end of the day, if you're in custody, you can't do much of anything other than engage in whatever in-custody programs they have, which have crazy wait lists and don't compare to the type of treatment or resources you would be getting while you're out of custody. And that's the other thing. You have to pay for those things. You have to pay for substance abuse. You have to pay for mental health. And while some of these places offer a sliding scale, you still have to pay out of pocket or you have to have insurance to cover it. And oftentimes, people who work, like, if you're working in construction or you're working a job that doesn't necessarily offer benefits, you're paying for those things out of pocket. So when people hear, you know, attorney fees — and then, on top of that, there's investigative costs, or, you know, if you wanna take depos, you have to pay for those. Things like that, that come paying for a case. On top of that, paying for whatever vendors, in terms of resources with mental health, substance abuse, investigation, like we're saying. Those are all things that come with paying for an attorney that you would have to essentially invest in. So, all that to say that that is, again, one piece of the reason that people who have resources are able to actually be placed in a better position when they're in this situation.
Brandon: Yeah. And, you know, the public defender's office is still going to have the ability to have an investigator and have depositions taken, even though someone can't necessarily afford that, but let's talk about the quality of all of that. Let's talk about the investigator. Now, you may have a great investigator at the public defender's office, but how spread thin are they with all of the cases that they have at the public defender's office?
Monica: Yeah.
Brandon: The same thing with the depositions. You have an attorney that may be very skilled at taking depositions, but that attorney is spread thin as a public defender. We know that. That's just the way that it is. They have a ton of other cases that they're working on. A private attorney can take more of a streamlined approach and really zoom in on one case, work up that case the best way that they can with all of these extra resources, and be able to dedicate all that time, because private attorneys just have less cases than public defenders.
Monica: Yeah.
Brandon: That's the way that it is, and you can —
Monica: It's just the reality of the situation.
Brandon: You can dedicate more time to things.
Monica: Yeah. Unfortunately — when I would hear this as a public defender, I would get kind of annoyed because I felt like I was doing my best, and I felt like my best was really good considering kind of the workload that I was dealing with. And I would have clients validate that to me. They would tell me, like, how happy they were that they had me as their public defender, and that I oftentimes was not kind of what they expected because of the stereotype that comes with public defenders. But now that I am in private practice, the way that I am available to my clients, really, at any given moment, whether that's directly to me or to my support staff — that is something that comes — it's straight to my phone, and there really is very little downtime on me getting back to them. Versus, even when I would make it a priority as a public defender, it would still take me significantly longer to get back to people. And that's just the fact of the matter — that you are one person and you can only handle so much. And, you know, as a business owner, you can delegate as much as you want because you are the business owner. So, being in private practice, people answering phones — we're here doing the podcast, I have still somebody answering the phone and addressing my client's needs. Not to say that that's not happening at the public defender's office, but, again, you could get any one of the assistants on the phone who's not necessarily acquainted with your case. There is just a huge difference with the attention that you get on your case and with your specific client when you are in private practice. And not only that, a lot of people will limit their caseloads when you're in private practice. They'll say, you know, I'm at my capacity and I can't take any more. I know some people that have done that and I think that's really wise of them to be able to be like, you know, I can't, because they know that they can't address that person's needs or that they won't be able to because they already have enough on their plate. So, when you're a PD, you don't have that luxury. You are assigned the case and you're on the line and it's your turn to take the case and now you go about your day. So maybe a public defender might be listening to this and be like, WTF? But it's just the fact of the matter and the reality of the situation that you do get more TLC when you're in private practice. You do get to give more TLC to your clients when you're in private practice.
Brandon: Yeah. And this is not in any way a slight at public defenders.
Monica: This is just the reality of the situation, that one person can only handle so much.
Brandon: That's exactly like you said. And private attorneys can prioritize certain things and certain cases in a different way because they have the time to do that, and there are additional financial resources, and the ability to allocate.
Monica: Yeah. You're 100% right with that.
Brandon: The point, when it comes to like the PD clients versus the wealthier clients, or the clients who hire a private attorney — unfortunately, and this is the law, that when you are arguing bond, you are talking about this person, who they are, what they do for work, their ties to the community, their family ties, and really everything about them. And if you have more to lose, you are more likely to get out of custody. And maybe it might sting a little for some people, but it's just true and it's based on the law, and those are things that the court hears. And if you hear that, you know, maybe this person's a physician, or this person has a career as a teacher, has some sort of stable job and contributes to the community through their service or their job, versus another person who doesn't necessarily work or doesn't really do much for themselves or the community around them, then it's much harder to work with that when you're arguing before the court. So when you show stability, when you show that someone has ties to the community, you're showing that this person has more to lose, and if they are not released, they will lose all of this.
Monica: Versus, you know, this person's been in Palm Beach County for 25 years, they have two kids, they live with their mom, they struggle with substance abuse, and when they get out, they intend on getting some treatment. Which, it's not a bad argument, but a lot of the arguments I made as a public defender were very standard in that way, because that was really all I had to work with. Versus now — I don't wanna say it's always like this, but now it's like when people reach out to me, they oftentimes are better positioned in life, and it's almost easier to advocate for these people.
Brandon: Yeah. That's fair. I think another topic — kind of changing gears just a little bit — but media and how media plays into cases. Every night you could turn on the news and you're gonna see that there was a different murder, there was a different robbery, there was something that happened, some sort of serious case. The majority of the time when you're watching those news stories, those are not the people that have the top-paid private attorneys representing them. That's usually not the case. And one of those reasons is because when you have a private attorney on the case, you can also hire, potentially, a PR firm, and you can have somebody that's talking to the media, and you can have people that are going onto social media and trying to run campaigns that make you look like the best person — or scrub social media to take away the things that don't make you look like a good person. There are ways that a person can have part of their fight made in the court of public opinion, and that's done because they have the financial resources to do it. Whereas somebody who may be charged with a really serious case and they're sitting in custody, they have nobody that's gonna speak for them. The public defender is not necessarily making comments about every case that's in the media, or, you know, whatever their policy is on handling cases like that, but it's very different. You see that when you have a media case where there is a high-profile attorney that comes on and gets involved and engages with the media, and then you see cases where it's just an individual that doesn't have resources, is charged with some serious offense, and that's it.
Monica: Yeah.
Brandon: And the news will, in a few months, when that person comes into court, the news will give you an update story.
Monica: Yeah.
Brandon: Whereas somebody with money, their attorney can be on the news that night and say, this is what we think, this is what is wrong with the case, and we are happy that we're gonna have our day in court to fight it out.
Monica: Yeah.
Brandon: Now, the media is always a double-edged sword.
Monica: Yeah.
Brandon: Because you don't need to ever address the media. And there are a lot of attorneys — I heard one on another podcast recently saying that his position was, you don't need to talk to the media unless it's absolutely necessary.
Monica: Yeah.
Brandon: And I can agree and see why that is the case, because let the case get fought out in court, and —
Monica: Yeah.
Brandon: Don't, whether it's you or your client, open up more issues than there are. I can understand that.
Monica: Yeah. I oftentimes see it done at the end of the case too, and that's something that's to bring attention to a really big injustice that's happened after you've won a case, and you're like, we want you to bring attention to a really big injustice that's happened after you've won a case and you're wanting to bring attention —
Brandon: Well, yeah, it's a lot easier to go on the news —
Monica: Yeah.
Brandon: After you've won a case and say, look how messed up it was that the prosecutors —
Monica: Exactly.
Brandon: Or the police were doing what they were doing, and we prevailed because the state has dropped its case. Every attorney would like to be in that position because that's really easy to do, is to go in front of the media when you have that situation. It's not as easy to do that when you —
Monica: During the case.
Brandon: During the case, and while a jury is potentially gonna be looking at this case and you have a jury pool out there watching the news, it's not the same thing.
Monica: Yeah.
Brandon: But —
Monica: That's true.
Brandon: Yeah. And, you know, everyone's gonna have different views on media, but the point being for this podcast episode is just, there are two systems of what the media can do to a case. One is, you know, you hear about it on the news and that person never has anyone that's their voice in the media, and the other is, you have a whole team that is the voice in the media for somebody else that's being accused.
Monica: And they often start the — like, the media headline will be the crazy fact about the case, right? Like, with Jenn's alligator case —
Brandon: Right.
Monica: You know, Man Threw Alligator Through Wendy's Drive-Through Window.
Brandon: Right. And it'll be the worst —
Monica: Like, the worst thing ever.
Brandon: The worst information, right.
Monica: Yes. So I also wanted to mention, you also have more, kind of, leeway with — we talked a little bit about investigation, but not necessarily, like, experts or parts of the case where you can explore a little bit more. And by that I mean, for instance, I had a DUI earlier this year and it was a felony DUI. And so with a felony DUI in Florida, it's mandatory adjudication, so you're required to become a convicted felon, which destroys people's lives, especially if all you have on your record is a DUI, which is the position my client was in. And not to dismiss DUIs, but, you know.
Brandon: Understood what you're saying.
Monica: You know what I mean?
Brandon: Yeah.
Monica: Like, when you think of a convicted felon, you're thinking of —
Brandon: Something worse than a DUI.
Monica: Yeah. Or a lot of DUIs.
Brandon: Yeah.
Monica: And so — his — no breath, he got his blood drawn via warrant, and it was above the legal limit, and I was like, this is, like, almost — I didn't know what the defense would be if we went to trial because I was like, what is the science behind the blood levels and all those things? So I consulted with an expert, and the only way I was able to do that was because my client paid for it. And I was like, what types of arguments can I make based off of what you see here in these blood readings? And he was completely honest with me. He was like, most likely it won't be a successful argument, but this is the best thing we got. And so having that information helped me so much, 'cause I was like, okay, I need to take a different angle. And I ended up getting a really great result. He got misdemeanors, and it was because I filed a motion to get the warrant suppressed because I said it was a bad warrant, and then the state was like, fine, we'll just give you a misdemeanor. And I was like, okay. But if it wasn't for my client being able to pay for my consult with that expert, I wouldn't have known how to advise him accordingly, like which direction we need to go in. And so, we're lawyers, we're not doctors, we're not scientists, and sometimes we just need to consult with people who are in that field, and the experts that would be testifying at trial for and against whatever the science is in that case. So that was just an example that I encountered personally that I was like, wow, that's really crazy. If I was at the PD's office, I don't know if that would've happened that way, and I'm the same —
Brandon: Yeah.
Monica: Like, it would've been the same me. You know what I mean? It's just a matter of resources. Yeah. That was just another thought that came in my head that I was like —
Brandon: Yeah. And I think of, you know, accident reconstruction experts that are crucial in DUI manslaughter cases —
Monica: Yeah.
Brandon: Where you have to be able to, you know — the state is gonna have a lot to prove. And if you can hire an expert that can come in and break apart their case using the science, using the accident reconstruction, using — I saw it on one of my own DUI manslaughter cases. It was incredible how the science came in, and when the accident reconstructionist went back to the scene and did a drone overview, and did all of this science and math and reenacting, and when he was done and came up with his report, his report said, basically, that the accident, in our case, could not have been stopped whether or not this person was sober or not. In the case that I'm talking about, there was a bicyclist that came out into the road while the person was driving, and our client struck the bicyclist and killed him. But the science behind the case saved our client.
Monica: Yeah.
Brandon: And she wound up resolving the case still with a DUI, but, you know, not a DUI manslaughter, and didn't wind up going to prison.
Monica: That's huge. That's amazing.
Brandon: And that's only because —
Monica: Yeah.
Brandon: We were able to have the accident reconstructionist do what they did, and this family was able to afford to do that —
Monica: Yeah.
Brandon: For our client.
Monica: Yeah. Otherwise, you know, you don't have that — that's a game changer in a case, especially one like that —
Brandon: Yeah.
Monica: That's that serious. Yeah. For sure. That's amazing. Yeah. I had a situation similar to that but it was leaving the scene of an accident causing injury, or causing death, and we had to hire an accident reconstructionist. And it's things like that where it's like, we are never gonna be — also, it's another way to get a third party's uninterested opinion on the facts to present to the state, and then negotiate. So obviously in my scenario, it wasn't good, so I just ignored and advised my client, like, this isn't good for us. But for you, that was probably something that you were able to actually go to the state attorney's office —
Brandon: We did.
Monica: And show them, this is the science, this is what it is, and if we go to trial, this is what we will present. And the state, especially when it comes down to making decisions like that, they have to consider that, because they know that this is going to actually be presented at trial. So, that's amazing.
Brandon: It was, yeah, it was a very interesting case. It's very tough to work on those cases because there's, you know, no matter how you look at it —
Monica: It's a tragedy, for sure.
Brandon: There's not really — it's a tragedy. And our client has to live with what happened, and so does the family —
Monica: Yeah.
Brandon: Of the deceased, and it makes it difficult. But ultimately, where the law comes in is to assess this person's level of guilt, and then the punishment comes with that. But that's one thing that having financial resources in a case can get you, is a tremendously different outcome —
Monica: Yeah.
Brandon: Than one that you might've been looking at.
Monica: But the other thing is that surveillance is only held for, like, 10 to 30 days, depending on the place that you are seeking surveillance from, like a private business. Obviously some businesses can opt to have it for longer than that, but for the most part, if you go to them after that window, there's a high chance that those videos will be —
Brandon: Overwritten, yeah.
Monica: Yeah, they're gone. And so if you hire a private attorney early enough, you can get that surveillance footage, or you can preserve that evidence. Versus when you are at the PD's office, oftentimes — sometimes I would get it, but sometimes it would be like I would get assigned after, like, a significant time period after, whether it's a matter of weeks or whatever. And we would still try to get it, but they would be like, it's gone. So it's just like, things like that, where I know that's kinda just a random thought that came into my head, and I was like, shit, like, I totally forgot about that. But no, that's important. Those are things that — it's just a matter of timing, too. Being able to get an attorney to look at your case ASAP is a matter of controlling the narrative. Because sometimes all you have is the police report, or maybe an eyewitness that — their vantage point wasn't great. But if you have a surveillance footage that'll disprove something or that'll show that that's not necessarily what happened, that's going to change the game. Just going to change the way the case goes. So, just another thought I had.
Brandon: So, we've talked about how the public defender comes into play when you have a situation where you have somebody that doesn't have money, and we talked about, you know, obviously the differences between having a private attorney and a public defender on the defense side. But let's talk about some of the benefits that come into play when we're looking from the prosecution side. Where is there more of a benefit as far as the prosecutor's concerned when there's a client with more money versus somebody that doesn't have it? Obviously, I can speak from experience and tell you that it didn't matter whether or not somebody had money or not when it came down to what the charge was, what the facts were, the victims in the case — it didn't make a difference to me. And I think most prosecutors are like that, where it doesn't come into play. But there are some things that I think do come into play. As far as I'm concerned, it's not that prosecutors give rich defendants a second look, but they are presented with more information about —
Monica: Yeah.
Brandon: People with money from their attorneys. Things we were talking about. Mitigation, presenting all of the facts and information for why a client should face lesser charges, should have a better outcome, should get a better deal than what's being offered, or should be facing no charges. Presenting evidence about the person's life that led up to this incident, presenting all the facts and circumstances surrounding the incident — things that maybe the prosecutor's not getting from just looking at the police report or the body-worn camera or listening to the statements or hearing from the victim. There are things that a private attorney can tell the prosecutor, and that now is gonna change the way the prosecutor looks at the case, which I think is fair and reasonable.
Monica: Yeah. I think it's the same idea as the bond argument that I was saying. You just have — you're showing that this person has more to lose. It's not more money that they have to lose, it's more in their life that they have to lose if they end up going to prison for X amount of time, or, you know —
Brandon: Right.
Monica: Whatever it is.
Brandon: And, the example you gave before, a doctor with a family that has not been in custody before that has a solid job and a house and is a member of the community, has more to lose than somebody that has no job, that lives in a low socioeconomic area, and doesn't participate in the community, or isn't — they have more to lose than that person does.
Monica: Yeah.
Brandon: And that's unfortunate. And a lot of times, that person in the lower economic group was not given the same opportunities —
Monica: Yeah, 100%.
Brandon: And just because of the culture that they grew up in, or because of where they grew up, or because of how they were raised, or where specifically, they just were not given the opportunities to grow and become this other individual that has these opportunities and has all of these things to lose. And that is just the way that it is.
Monica: Yeah.
Brandon: It's not necessarily a matter of being fair, but somebody that has more to lose just, simply put, has more to lose. And that is gonna be presented to a judge and, really, to the state. And if it's done effectively, it's going to give them a better outcome in their case.
Monica: Yeah, and not only that. So, restitution.
Brandon: Exactly.
Monica: That's a huge part. So, restitution is a way to make the victim whole again. So, if there's any sort of financial loss or injury in the case on the part of the victim caused by the defendant, that is something that, if the defendant is able to pay back or make the victim whole again, in a sense — like pay for their medical bills, pay for, you know, if there was a crash and there was no insurance covering, if they're covering the cost of fixing the car, whatever the case is, if it's a fraud case, paying the money back — those are reasons to keep somebody out of custody. And oftentimes, the state will just straight-up ask, can they pay restitution? Is this something that they can do? 'Cause if they can, that changes — this person can go on probation. This person can pay it upfront and then take a time-served sentence. You know, there's so many different creative ways you can get there, and it's just by having the ability to make some sort of payment. And so, oftentimes — and that's even in the sentencing guidelines for the felony sentencing guidelines in Florida — if you have the ability to pay restitution back, the judge can say that this is a reason for downward departure, for you to not have to go to prison if you score prison time and have a community-based sentence. And so that is something that I think is not overlooked. It's not — this is something that happens frequently. This is a way to get out of custody. I am almost confident every time I have a conversation with my client that if they are able to pay any sort of restitution, that we are able to reduce the sentence or have the upper hand in negotiating at that point. So, I just think that is a huge, huge part of negotiating and even sentencing.
Brandon: I think another thing, just along the same lines with negotiating, is, in my experience, private attorneys are more creative with the pleas that they come up with and the resolutions that they come up with and the ways that they are willing to, you know, even specifically with restitution —
Monica: Yeah.
Brandon: The way that they are able to say, okay, well, I understand that the offer was this, but if we're able to do restitution, and he's going to write a letter to the victim, and he's gonna do certain classes and make certain donations, can we do this type of, you know, diversion program where the charges get dismissed? Or can we do this where the charges will get dropped ultimately? And that is enticing in certain circumstances because the prosecutor's getting exactly what they need, which is some sort of punishment and the restitution for the victim, and they are getting a successful prosecution statistic on the case by resolving it with some sort of —
Monica: Yeah.
Brandon: Plea like that.
Monica: Yeah. It's like a win-win in both scenarios.
Brandon: Right.
Monica: And not only that, because they have to consult with the alleged victim in situations like this because of Marsy's Law, and what alleged victim's gonna say, no, I don't want my money back?
Brandon: Right.
Monica: That is the general thing that most victims want first, is to be made whole. They want their car fixed, or they want the products that were stolen back —
Brandon: Yeah.
Monica: Or they want this person to stay away from them for a certain amount of time.
Brandon: When there's a victim involved, as far as I'm concerned, as a defense attorney, I know I have some negotiation power, because if I can make that victim happy, that is going to satisfy —
Monica: Yeah.
Brandon: Something for the state, and that is going to ultimately give my client a better result.
Monica: Yeah, I think it's just knowing what the other side wants, in general, is the tool to negotiating, but yeah, especially knowing that restitution is owed or is likely to be owed, and if your client has it, that's kind of like a done deal in my mind.
Brandon: Yeah.
Monica: So —
Brandon: That's — getting restitution paid upfront is always a huge bargaining chip whenever you have a case where there's a victim involved. It satisfies everybody on both sides —
Monica: Mm-hmm.
Brandon: And that's the name of the game.
Monica: Yeah. 100%. Some prosecutors were schmoozers with the elderly private attorneys, and I was like, are they, like, hoping for a job after this? Like, what is it? So, that's definitely true.
Brandon: Okay. And I'll tell you what I think is really going on. I don't think that there is this necessary fear of going against better or more talented or more experienced attorneys. I don't think that's what it is. I don't think it's about, you know, oh, if this person likes me, that's better for my chances at this job, or makes me look better in front of the judge, or it is going to get me a job. I don't think that that's a thought process. I was somebody that was eventually going to go into the defense world. And I thought it was important to have a good relationship with all of these other attorneys, not because of the job that it could get me, but because I was gonna keep having cases with them. And if I switched sides, I was going to be among their peers and I wanted a reputation that would be good amongst all of those attorneys. And there's a few attorneys I can think of off the top of my head, I wasn't looking at some of these guys that handle really high-profile or really expensive cases and thinking to myself, you know, let me give them a better deal or a sweet deal.
Monica: Yeah.
Brandon: Or thinking to myself, like, be intimidated because they're on the case.
Monica: Yeah.
Brandon: That was never part of my psyche, but I definitely see relationships that prosecutors have that are — they're good with —
Monica: They're, like, friendlier more so.
Brandon: They're friendlier.
Monica: Yeah.
Brandon: And I'm friendly with a lot of prosecutors that I worked with or —
Monica: Mm-hmm.
Brandon: That I'm still friends with. But there's a professional aspect, too, and there's a line that I don't cross.
Monica: Yeah.
Brandon: And I didn't cross it. I didn't cross it when I was there and I don't cross it now, where because of that relationship, I'm expecting something —
Monica: Yeah.
Brandon: Or expecting something different.
Monica: Yeah.
Brandon: The only thing that I think the relationships I have buys me, or has bought me, is a little bit of credibility and a little bit more access.
Monica: Yeah.
Brandon: I can access the prosecutors a little bit easier and reach out to them, 'cause I'm a little bit more approachable because I was on their side. And when I start talking, I have some credibility with what I'm saying, because I wasn't full of shit when I was there with them. I'm not full of shit now, and I'm never gonna do something on one case that is going to risk my ability to keep representing people or be known for the type of integrity that I have. It's not worth risking it.
Monica: Mm-hmm. It's funny that you brought that up, because I was thinking that we would talk about it — whether or not certain private attorneys get better deals because of their relationship —
Brandon: Yeah. It really is not like that. I don't know if I — I honestly don't think I've seen that because of who is on the case.
Monica: I think it was likely because of the circumstances surrounding the case. But I did notice just a change in demeanor towards specific people. And I'm not talking about you specifically. I'm just saying with certain ASAs or prosecutors, that I was like, huh, are they, like, looking to fish for a job after that, like, for an opportunity or something? I don't know, it just kind of went through my mind and I was like, I don't know, whatever, but —
Brandon: I will tell you that I think it goes the other way, though.
Monica: That they're poaching for a —
Brandon: No. No, no, no, no, no, no.
Monica: Associate?
Brandon: I think when a prosecutor or prosecutors don't like a specific private defense attorney, I think they go harder on that attorney and I think they all talk about it. And I think that it ultimately is — you don't wanna be disliked by that office, by the state attorney's office. You don't wanna be the one that, when new attorneys are being trained, they all say, hey, if somebody like — insert this attorney's name here — comes up to you and tries to —
Monica: Tell you that A is for apple —
Brandon: So bad.
Monica: They're actually lying, and they are a habitual liar, and they will always lie to you. So that is legit, and —
Brandon: I mean, that's just, I think, in any legal —
Monica: Yeah.
Brandon: Industry. But that is to say that if that private attorney takes a case, it's not to their client's benefit —
Monica: No.
Brandon: That they are the ones that's representing them.
Monica: Yeah.
Brandon: That client may have had a better shot with a non-private attorney —
Monica: Yeah.
Brandon: With a public defender.
Monica: Depending on who it was.
Brandon: Depending on who it was.
Monica: That's so true. And I think that, in general, the legal industry is so, like, especially as you get niched into a specific area in law, you start getting acquainted with who practices in what area. And I feel like criminal's so much smaller than other areas. And, you know, even when I was in insurance defense — I wasn't in insurance defense for long — but there was a handful of plaintiff lawyers that we knew were just going to come to court and talk out of their ass and likely be convincing. So we would have to be prepared for that. And that just came to my mind because of what you're saying. But I think also you just learn as you practice, like, who does what and people's patterns. And if you see that someone is a habitual liar, they don't deserve the reputation of having credibility. They didn't earn that. So, if you are someone that — maybe you're someone that fights hard for your client but you're always honest, that's something that people will remember, because we're in a space where we are always communicating and using our voices to advocate for people — our word holds a lot of weight. And that's in negotiating inside of court and outside of court, whether it's with the judge or the prosecutor, your colleagues. It doesn't matter because everybody ends up talking, and, you know, lawyers love to network and go to happy hours and talk, and this is something that wasn't on my radar when I first came out of law school. Not that I felt like I was ever not credible. But I just feel like maybe when I first started practicing, I was maybe a little bit more hot-headed and I was, like, ready to fight every little thing, especially as a PD. And I realize that your reputation, your credibility, and the way your opponent views you is something to consider. And not in a way that's like, oh, I care about what people think, but more so, like, your word is really all you've got. And if you know that you're being honest and honorable in whatever it is that you're doing, that's all that really matters. But that's good insight that you're saying, 'cause I'm like, okay, well — so, be nice.
Brandon: Listen, I try my best.
Monica: Be nice to the prosecutors.
Brandon: I'm always smiling. You don't have to kiss ass. You don't have to be fake.
Monica: Yeah.
Brandon: But just be nice, be respectful. There's no — yeah.
Monica: I think —
Brandon: My wife always tells me, you catch more bees with honey.
Monica: Yeah, I like that. It's real. So.
Brandon: It's true.
Monica: I will subscribe to that, I guess.
Brandon: Hell yeah.
Monica: And speaking of subscribing —
Brandon: I was gonna say that.
Wrap-Up
Monica: If you like listening to our show, make sure you like, comment, and subscribe. We are on all platforms, ComeBackWithAWarrant.pod. Subscribe to our weekly newsletter to get all the gems and give us a five-star review. And if you didn't like listening to us —
Brandon: Come back with a warrant.