By Sabra Barnett
Prior to working in private practice, I was an Assistant Federal Public defender. In this role, I received cases long after charges had been filed. Meaning, the opportunity for many of my clients to avoid being charged had long since passed. Grand Jurys had convened, statements were recorded, and the case had inertia ever before I met my client. Working in private practice affords me the ability to get ahead of cases by acting as advisory counsel to clients, helping them either avoid criminal charges altogether or to at least get better footing in the possible criminal action.
It might seem odd to hire an attorney before formal charges are brought. Often, people ask me if hiring an attorney is a sign of guilt. This is a grossly inaccurate assumption, and I have personally witnessed many people suffer based on a failure to obtain counsel earlier. An investment into a pre-charge/pre-indictment counsel can drastically change the outcome of the investigation or the criminal litigation. Not only does having an attorney so early in the investigative process provide peace of mind, but it is also the opportunity to take certain strategic steps that may shut down the investigation or set the client up for a better outcome later in the process. Early in a police investigation is also the time where people who are unrepresented may make statements that are taken out of context and used against them in the proceedings—having an attorney at this stage can help ensure these statements are either not made or are immediately mitigated.
In the context of what we do at Woodnick Law, the pre-charge/pre-indictment conversations often involve persons being investigated for serious sex and child abuse crimes. Under these circumstances, it is easy for anxious clients to make statements to investigators that are then used against them in the criminal and/or dependency action. Even something as minor as a parent acknowledging that they have administered medicine to their child through a suppository can get distorted into something malignant.
As pre-indictment/pre-charge counsel, my job is advisory, but it is more than just repeatedly telling clients to invoke their 5th Amendment right to remain silent. In child abuse matters in particular, that invocation can backfire in later DCS/dependency and Family Court proceedings as, in Arizona, civil courts can make a negative inference based on an individual’s decision to remain silent. The 5th Amendment is only applicable to criminal investigations. Pre-charge advise is about helping a client with:
- Navigating interactions with Police and/or DCS
- Social Media
- Family and friends
- Gathering data
- Interviews with investigating agencies
- Polygraph requests from state agencies
- Handling any media requests
- Coordinating with family court counsel when warranted
Even after more than a decade of legal practice, I still watch the occasional crime show. When people ask me if these shows are accurate, I typically explain that most of what a person sees does not reflect reality. This is true for many of our pre-indictment clients as well as the only experience they have is through watching these shows. They do not know that the system can be much harder to navigate than what they see in the “Lincoln Lawyer” or an episode of SVU. One of the most important lessons people find surprising is that, in the investigative process, the police have the legal authority to lie. They can threaten to place a person’s children in foster care or claim they have proof of wrongdoing without any truth to these statements. Most police/investigators are well intentioned, but they also have a job to do and they are not infallible. They will use the tools that they have learned to “solve the case.” Unfortunately, when they get things wrong, the collateral consequences can be dire.
I’ve learned that sometimes the most important work we do as defense attorneys happens long before formal charges are brought, in the pre-indictment/pre-charge phase. Unfortunately, I have seen many people wait too long before seeking legal counsel and their well-meaning efforts to try to deal with the situation themselves causes more legal woes. It might be an interaction as benign as the client chatting with a DCS caseworker that shows up at their door to discuss a hotline report or as invasive as a City of Phoenix detective stopping by someone’s place of work. In these instances, pre-indictment/pre-charge representation can make a critical difference in the outcome.
Sabra Barnett is a second-generation attorney with extensive criminal defense experience at the state and Federal levels. She is licensed to practice in Arizona and Alabama.