Giving into absurd plea agreements

What do you do when you know you have done something wrong, and you willingly accept that you need to be held accountable, but the authorities want you to agree to something more? What do you do when they want you to agree to inappropriate probation conditions?

 If I present at the emergency room with a severed finger, I will certainly be given attention for that wound.

What if it is the hospital's policy to remove the appendix of everyone that comes into the emergency room. They do it as a preventative measure, just in case you might have gotten appendicitis one day. And, I would have to pay the medical expense for the surgery. In order to receive treatment for my severed finger, I have to also agree to have my appendix removed and pay for it. If I don't, they won't treat my finger and I'll have to find someone else to do it.

And, for the rest of my life, whenever I go swimming and someone sees the scar from the appendix operation, they'll say - oh, you had appendicitis, and I'll have to say, no, I just had it out. And, then, I'll have to explain why so they won't think I'm lying about having appendicitis. After all, people with an healthy appendix don't have it removed, do they?

It's not that the hospital didn't offer to treat my finger. It is just that they added a condition to it that satisfied their agenda, even though it has nothing to do with me.

So, I'm standing in the lobby of the emergency room, with a dripping, bloody rag wrapped around my hand. I'm squeezing a pressure point in my wrist to try to slow down the bleeding. My friend has picked up my finger and stuck it in a cup of ice. We're ready to go.

Do I go ahead and sign the release for the hospital to remove my appendix so that I can get my finger treated, maybe put back on, or do I leave, hoping I can find someone in time who is willing and able to treat my finger and leave my appendix alone?

I get frustrated and angry because it is unfair. I'm trying to do the right thing, and they want more. Fundamentally, that feels unfair.

Now, once I cast something in the role of being unfair, then I must become opposed to it. It seems really stupid to me. But, why? Why does it make me feel that I have to resist?

Deep down inside, I feel pain. I feel fear. It hurts. I have trusted someone and feel betrayed. I feel that someone is trying to take advantage of me, trying to exploit the situation to their advantage. Once the trust is violated, I feel that I am in danger.

I also feel that they are trying to control me for no good reason, when it is just their policy to treat everyone the same way. I resist people trying to control me. I don't want to be controlled by another when there is no good reason for it. I'm scared of that. Especially when giving into the control means doing something that makes no sense. I feel betrayed. So, again, I am back to the trust issue. Someone who wants to have control over a part of me and my life has proven untrustworthy by making unreasonable demands.

If I can't trust the other person, then I have to protect myself from them. My fight or flight mechanism has kicked in. All the danger flags are erupting. For anyone as old as I am, you might be able to see the Robot on lost in space shouting "danger Will Robinson, danger" while its arms and sensors flail and whirl around.

When I'm in danger, I'm no longer reasonable. I can't be. Because I either want to run and hide, to avoid the danger, or if I can't get away, I need to fight the danger - to neutralize the threat, maybe even destroy it if I can.

Anyone who comes along and tries to reason with me about it gets lumped into the danger group. In order to preserve myself I must resist them. My friend, holding the cup of ice with my severed finger in it, who says "just go ahead and do it, what difference does it make" becomes the enemy.

A sense of moral outrage that comes with the absurd unfairness of this condition rises up in me. And, so, I'm back to the anger and resentment, which comes from that sense of fear and mistrust.

What I wish would happen is that the hospital would change its policies. I wish that the hospital would realize that cutting out a healthy appendix for no reason other than it is their policy to do so makes no sense. I wish they could see that blindly following their rule is going to cause me pain, suffering and humiliation that I should not have to endure. Making me do it is inappropriate.

I want them to see me as an individual. I want to be treated as a person. I don't want to be seen as just a set of boxes on a piece of paper that need to be checked off. Yup, there goes another appendix, healthy, but who cares. We followed our protocol. So, we did our job.

I'm told I don't really need my appendix, but is that a sufficient justification to give into the hospital's policy and agree to an invasive procedure that is completely unnecessary?

Yet, does it make me a fool to walk out of the hospital lobby with a bloody stump on my hand just to save my appendix? That seems stupid, too.

So, in the end, I'm angry and resent the hospital for forcing me to make that choice. I'm hurt because I feel they don't see me as an individual with individual needs. I'm scared because they seem unable to treat me for my specific needs. And, I'm also scared because I do have a need that has to be addressed right now.

My only hope is that there is another, more reasonable hospital nearby. But, I don't know if there is. So, in going to look for one, I put my finger at great risk. Is it worth it?

I really don't know. What are your thoughts?

Is there a right or wrong decision here? Is there another way out?


Bob Vogel
Attorney at the Vogel Law Firm
rlvogel@robertvogellaw.com
www.robertvogellaw.com

Plea Offers - Too Good to Turn Down?

My client, we'll call her Sue for our purposes of discussion, was charged in a sale and delivery indictment in a school zone in a neighboring county. She was facing a minimum of 8 years at 100% because of the school zone. She had at least one prior possession charge and the current charge violated her probation, so she was in jail serving out her last sentence. It didn't matter, because she couldn't make bond, anyway. She had two children living with her mother.

The State's case consisted of two, recorded buys. What that means is they send in a undercover person - in this case, a well known drug addict and small time dealer who was familiar with my client and her roommate. Call him Bill.

Bill gets money from the detectives. They give him a cell phone to use. They record the calls he makes. He calls the house where my client lives and makes a deal with someone else to come there and buy a couple of pills. This is recorded. The police pretend to search him to see if he has any pills on him before he goes to the buy location. Supposedly, he does not. But, they let him take a friend in the car with him and they do not search the friend. The do a cursory search of the car.

He goes to the residence. He is wearing a wire (in this case, it is a digital tape recorder). He goes in and supposedly engages in a drug transaction. The voices that are on the recording are his and some third party in the house, not Sue's.

When he reports to the police, he names Sue as one of the people who sold him drugs. He does this again.

Based on that, she is indicted. The State is going to try put her in jail for 8 years on the word of a druggy who benefits from helping the police: he gets charges dropped and he makes some money for himself. The didn't even control the situation. They let an unsearched person go with him in the car.

Several months later, after she has sat in jail, we appear in court. The prosecutor offers to drop the school zone and let her plead to a six year sentence for which she would get probation after serving 30 percent. My client says no.

I'm kind of happy, because I'm ready to try the case. I think the evidence is minimal and that they can't prove beyond a reasonable doubt that my client did anything or participated in anything.

We set the matter for trial. Two months later, we're ready for trial, and the State can't go forward. They come up with some excuse and the judge, over my objection, gives them a continuance. Now, my client's sat for five months. In one more month, the misdemeanor she is charged with is flattened and she could get out, but she can't make bond on the felony.

Never the less, she does not want to plea. I tell the DA we're going to trial. We're going to put them to their proof.

Two months later, after seven months in jail, the DA says to me: "we're having a fire sale, we'll plea Sue's case down to a misdemeanor, one year, time served, probation for a couple of months." Quite a way from 8 years, I think, but I think I can get her an acquittal if we go to trial. Still, it's a good offer.

Sue says no. Silently, I applaud her. She says there is no way she'll plea out to something she didn't do. She knows the proof, we've discussed it, she knows they have very little evidence. And, she knows the guy, and knows him to be a liar and a thief, as well as a drug addict and part time dealer. She says she's bought pills from him in the past.

The DA is visibly upset when I refuse on behalf of my client.

"That's a great offer," he says.

"I know, but she's innocent."

"Alright."

"Let's go to trial."

The next trial date is three months out. I go and see her in jail to tell her about it.

She's really mad and justifiably so. She'll have sat for almost a year by the time her case goes to trial for a crime the state can't prove.

She decides to take the misdemeanor plea, we get it with no probation. Why?

The DA knows he can't prove his case. Why doesn't he dismiss the case? I don't know. There is certainly the influence of local law enforcement. They think every arrest is a good one and people ought to be going to jail. Political pressure is put on the DA to get a conviction on every case.

Since their officers can't admit a mistake, neither can they. So, its either lose a case or dispose of it for something, anything, and get a conviction. Conviction it is.

It was impossible for Sue to say no. The offer was too good. She could get out of jail that day. She could go home to her kids after about 9 or 10 months. Or, she could wait another couple of months for a trial (there is essentially no speedy trial clock in TN. It is not statutory, so it is whatever a judge says it is as long as it's not unreasonable.) 

The offer was too good for Sue to turn down. I can't tell you how much I see this. When people are in jail, when they want to go home, the nobility of insisting on a trial fades away to more practical concerns. The State knows this, and they will continue to run this game until we can figure out  a way to get our client's out of jail on a reasonable bond - which is also a problem.

I would rather take a case to trial. I trust a jury. I believe in 12 citizens. They may start out in the wrong place - most people think that if you got arrested there must be something going on. But, even with that consideration to overcome in voir dire, I like juries. My clients are scared. And when they see a carrot in front of them, are more likely to take it.

I don't know what the happy compromise is. So, for me, for now, I'll just keep trying case and beat the State every chance I get. It is the best thing for me to do for my clients.

Bob Vogel
rlvogel@robertvogellaw.com
www.robertvogellaw.com

What's New at TLC: 4-0 for NOT GUILTY verdicts since graduating from ...

What's New at TLC: 4-0 for NOT GUILTY verdicts since graduating from ...: TLC Grad Bob Vogel (July '13) writes the following.  Congratulations to you Bob, and to your client.  He was very fortunate to have you...

Please click on the link above to review the article on the TLC website.

Bob Vogel: rlvogel@robertvogellaw.com

Criminal Defense Attorney - The Vogel Law Firm - Knoxville, Tn : Other

Criminal Defense Attorney - The Vogel Law Firm - Knoxville, Tn : Other



Learn more about the services of top criminal defense attorney Robert L. Vogel.

Stop Government Oppression

by Robert L. Vogel

In my last trial, there were several instances in which the government tried to misuse its power. I defend people accused of crimes because the government does this. They will come after you with all their power to crush you. There is a mandate, handed down by the U.S. Supreme Court that says that a prosecutor is to "Do Justice." They may strike with a heavy blow, but not an unfair one.

Yet, time and again, from the arrest and investigation, through the trial, there is an abuse of power. We NEED trial attorneys willing to step up and fight for individuals against the power of the State. We need trial attorneys who will defend the little guy, the guy who can't plunk down a years pay, attorneys who will work for the $40 per hour the State of Tennessee pays (they haven't raised the rate in over two decades, I believe), or the $125 per hour the Federal court's pay and still be willing to believe in their case and fight for them.

We need attorneys out there who are willing to take the government to the mat and say "PROVE IT", prove your case or let my client go. We need attorneys who are not going to compromise their clients because it is easier and expeditious to do so.

We see government abuses everyday. We see police who don't respect the 4th amendment. We see trial judges who won't suppress illegally obtained evidence. We see prosecutors and judges worrying about the electorate and the vote they will get next time instead of doing the right thing on a case by case basis. We see prosecutors rewarded by the number of cases prosecuted and sentenced.

Nobody is out there looking for justice. Who will do it. It must be the trial lawyers, the solo practitioner, the small firm, the guy who starts out taking appointments because he believes in helping people. We have to stand up to the machine that would grind us and our clients into the dirt they use to build more of their for profit prisons.

I'll leave you with a video of one of my personal heroes and one of the most respected trial attorneys in America.
Gerry Spence on Government Oppression

Robert Vogel may be contacted at his law firm in Knoxville, TN by calling 865-357-1949 or by emailing rlvogel@robertvogellaw.com

www.robertvogellaw.com

What's Wrong with Our Courts in America? Not enought trials and not enough trial lawyers.

We need two things to fix the system: more trials and more specially, qualified trial lawyers.

If we are going to fix our system of justice, civil and criminal, we need to adopt a system like the United Kingdom and have a special class of lawyers, trained beyond law school, and properly prepared to enter the courtroom and try cases. And, they must be dedicated to the jury system.

Then, we must set deadlines for the prosecution of cases. Either get them to trial or dismiss them if they are not gotten to trial.

I was in court the other day and the Judge was dressing down two attorneys who had let their case go three years without getting through the discovery process (investigation and exchange of evidence). The Judge was justifiably frustrated and gave them a deadline. Get it ready to try or I'm going to dismiss it for failure to prosecute, he told them. Great, good for you Judge. But, he waited three years to tell them that. That should be the message from the day the case is filed.

We don't need more rules. We don't need tort reform. In fact, tort reform is the opposite of what we need. It keeps cases away from the jury.

We need anyone who is preparing to enter into the legal system to know they will face a jury in a reasonable amount of time. This will slim down the ranks of cases. Now, defendants in both the civil and criminal realm know that they can count on cases hanging around for years. Thus, the guilty, those who injured people and those who have broken the law, can rely on a system that will let them evade and then bargain for a result.

Let twelve citizens at them instead, I say. Let their peers hear the case and decide what justice ought to be. That is what the Constitution provided. That is the expectation of the jury system. Have a contest to determine who is right and what justice looks like.

The power of that system remains in the hands of the people. It gives the people a chance to decide what justice looks like in their society. It is an amazing and wonderful system that is currently being abused and misused.

The universal complaint is that our court system is bogged down. There are too many cases. That is followed often by the corollary that those cases are mostly frivolous. That assumption is untrue, as are most generalized assumptions, but, there are likely some weak cases out there. And one can always find an example of a case that seems absurd. But, the majority of cases brought have some merit.

The problem is most cases are never tested in front of a jury. The jury system is not working because people are not using it. Instead, they throw paper at each other for a couple of years, jockeying for advantage. When there is no paper left to throw, then they settle the case. They may have a couple of hearings, but no one wants to try the case in front of a jury.

Either they don't trust the very system that in which they agreed to serve, or, they know their case won't pass muster in front of 12 citizens.

I did a stint working for a mid-size firm. I didn't like it very much. I like working directly with clients and other lawyers. But, the lawyers at the firm were fine people, honest and kind to me. They knew the law well. But, for them, litigation did not mean trials, it meant lots of paper, motions, mediations, negotiations, settlement conferences. Bidding the case back and forth.

I was told in no uncertain terms that getting out of my seat to go argue a case was not cost efficient. Everything today is about cost and profit. Law is a business.

Which stinks, because law is not a business. There are books out there that teach you how to run your law practice like a McDonald's franchise. But, it's not. It's supposed to be a noble, time honored service profession, where learned men and women take the time to care about their client's case. If a trial is in order, then a trial should happen. A trial should be the first choice, not the last.

I have had lawyers say to me that if a case goes to trial, you failed. Trials are the last resort, to be avoided at all costs. That idea is exactly backwards.

Trials are the point of a lawsuit. They are the point of a prosecution. Yet, today, most cases, criminal or civil, settle and never see a jury. I'm not talking about half or three quarters, but well over 90 percent of all cases brought - whether civil or criminal - settle. The controversy never sees the light of day. The people never get a voice in the matter.

And that is what a jury trial is all about. The power of a jury trial is in the hands of a jury. We have to have enough faith in our position to hand the decision over to twelve fellow citizens.

Now, here is where we clean out the chaff of the cases - if you don't have the guts to let your fellow citizens see the case, hear the case, review the evidence and decide your controversy, THEN DON'T BRING IT IN THE FIRST PLACE!

If the case is not worthy of the trial, it is not worthy of the courtroom.

Yet, so many cases are settled today that it has become the expectation.

We also need lawyers who can take cases to trial. Most lawyers have little or no experience in front of a jury. That has to change. We need a system in which the dwindling number of experienced trial lawyers out the take the inexperienced under their wing. And the inexperienced might have to second chair a few cases, maybe for a reduced fee or pro bono, to get the experience. We need an organized system to teach them.

Law schools do not prepare you for court. They don't have the lawyers in them teaching that know how to go to court. This is not a criticism of law school - it is necessary to the practice that lawyers become well trained in their knowledge of the law - you can't be a trial lawyer if you don't know the law and the rules.

But that is just step number one. Next, you have to learn how to prepare a case for trial and how to try it. And, you have to believe in the system. You have to have faith in the jury. Have faith in your case. You have to trust people to care and to think. You have to let them properly exercise the power given to them by the Constitution.

If you can let go of your case, hand it over to twelve people, well that's when the magic happens. If you've done your job as a trial attorney and communicated your client's story well, you can feel safe in the hands of a jury.

But, this is the artistic part of practicing law. This is where we discover ourselves, where we learn to connect with others. At the trial, when we are vulnerable and open and willing to ask our neighbors for help - we will find it. There is a connection we all can feel. A spirit of justice that we can tap into.
And, when we do, we connect with each other on a guttural, primal level - the way our ancestors did around the fire, knitting together their lives with one another - trusting one another.

That, in the end, is what a jury trial is about. Believing in your case, communicating your case, and then trusting your neighbor to decide fairly - to give you justice. That's all you can ever ask for. And a good trial, conducted by an experienced and skilled trial attorney, is the only place in America that you will find it.

Attorney Robert Vogel is a available to represent people in both civil, plaintiff cases and criminal defense matters. He represents individuals who are being oppressed by the government or corporations. Contact him via email at rlvogel@robertvogellaw.com or call 865-357-1949 for a free consultation.

Visit his website at www.robertvogellaw.com

Beware of Forced Arbitration Clauses

Attorney Bob Vogel can be contacted at rlvogel@robertvogellaw.com or by calling 865-357-1949

 

By opening a credit card envelope in the mail, making a call on a cell phone, or even

taking a first sip of coffee, millions of American consumers are unknowingly giving

 

up their rights and protections established by more than 200 years of constitutional

law. Instead they unwittingly “agree” to the terms and conditions of a corporate backed

privatized system designed to ensure consumers can never hold corporations

accountable for causing harm, no matter how abusive or horrific.

Forced arbitration is Corporate America’s Trojan Horse – a campaign to eliminate access

to the courts and individual rights and replace them with big businesses’ own dispute

mill. Though most Americans remain largely unaware of forced arbitration and its effects

on their rights, more than half a billion arbitration provisions infi ltrate our everyday lives.

Forced arbitration clauses are bad news for consumers, patients and workers.

Arbitration can be an effective solution in business-to-business cases, when

corporations with vast legal resources and knowledge voluntarily agree to settle

with arbitration. But in the David versus Goliath context of an individual taking on a

corporation, forcing people into arbitration is little more than stealing their right to

justice. The otherwise benign-sounding idea of arbitration is actually a severely biased

process in which you can almost never win, and from which you can never escape. As

Senator Elizabeth Warren once said, forced arbitration is “Darth Vader’s Death Star--the

Empire always wins.”
Most Americans have “consented” to a wide range of forced arbitration clauses without

ever knowing it.

 

Forced arbitration eliminates all of the checks and balances of the civil justice system,

including the right to a public forum, the right to demand information from a

corporation, the right to a written record, and, most importantly, the right to trial by jury.

Arbitrators are not bound by law and their decisions are not subject to any meaningful

judicial review.

At every stage this Trojan Horse has been pushed by the fi nancial and lobbying might

of the U.S. Chamber of Commerce. Through its legal reform front group the Institute

for Legal Reform (ILR), the U.S. Chamber has been at the forefront of a heavily-funded

campaign to eliminate corporate accountability, even for massive violations of state and

federal law. For decades, this has primarily revolved around high profi le PR campaigns

to portray the civil justice system as beset by frivolous lawsuits. But where a billiondollar

tort reform campaign has not succeeded in closing the courthouse door, its more

stealthy compatriot – forced arbitration – has gone a long way to shielding corporations

from accountability and replacing the courthouse altogether. 
Consumer forced arbitration clauses have surged in the last two decades as

corporations have pounced on the opportunities they present. To Big Business, the

boilerplate clauses are the ultimate out. Accountability for all misconduct and violations

of law has been eliminated by a paragraph of fi ne print that is rarely ever read. Without

realizing it, the majority of Americans have consented to forced arbitration multiple

times.1

These clauses are buried in the fi ne print of credit card

and cell phone contracts, in the packaging of every

imaginable retail product, and in mountainous pages of

nursing home care and employment contracts. Often,

consumers are unaware that they have agreed to a

forced arbitration clause. Corporations conduct extensive

market research to design these notices in a way that

makes them easy to ignore, with headers such as “there’s

nothing you need to do.”3 Researchers have shown that

it is next to impossible to see these forced arbitration

clauses before applying for a credit card or purchasing

a product, which means just by “receiving” the product

or service, one is “agreeing” to sign away all legal rights

and protections. Nor do consumers gain anything from

“agreeing” to waive their rights. Consumers do not get

better rates, faster service or enjoy any other form of

passed-on savings.

Even using a website can bind you to forced arbitration.

Sites such as PayPal, EBay, and Instagram use broad

forced arbitration clauses. Instagram’s forced arbitration

clause went so far as to ban users from participating

in actions by state attorneys general. Under such a provision, site visitors whose credit

card details were leaked would be unable to benefi t from any intervention by state

authorities.

Arbitration’s defenders claim it is more effi cient and less costly than the civil justice

system. If this were true, arbitration would not have to be forced on mostly

 

unwitting consumers. The truth is the U.S. Chamber’s forced arbitration campaign has

been nothing less than a rights grab of unprecedented sweep. Millions of Americans

 

have had their constitutional protections stripped away by boilerplate fi ne print slipped

into every imaginable contract.

With their accountability eliminated, corporations have found themselves free to cheat

and abuse customers and employees, encouraged by the fact that such abuses have

gone unchecked. And without a public record of theses abuses, Americans will have no

way of knowing just how much danger these products and services pose. When no one

is accountable, no one is safe.

 

While courts across the land have attempted to stand up to the unfairness of forced

arbitration, such attempts at preserving protections have been stymied by the U.S.

Supreme Court. The Court’s consistent message has been that individuals, groups, and

states will not be allowed to circumvent the FAA no matter how virtuous their cause.

This means that any respite from the abuses of forced arbitration lies with Congress and

federal agencies. Without Congressional action, corporations will use forced arbitration

for what it is – a license to steal.


Contact Attorney Bob Vogel for information about your rights. rlvogel@robertvogellaw.com