New Millenium Magazine
New Millenium Magazine Feature’s Knecht
WHY YOU NEED A GOOD CRIMINAL DEFENSE ATTORNEY: An interview with celebrity criminal defense lawyer PETER KNECHT
If you live in California and care about your individual rights you should read this interview with a top defense attorney. Laws are changing in California and not for the better. For over twenty years James Silverstein has been one of the country’s top criminal defense lawyers. He knows how the system “really” works and gives us his unique insights as to what’s wrong with our criminal justice system.
He was once the D.A. in charge of the Beverly Hills Judicial District and taught search and seizure at the Sheriff’s Academy. When he later switched from this showcase position he gained fame and notoriety as a defense attorney.
His motivation to defend people’s rights may well have been precipitated by the near loss of all his own rights and life in World War II when the Gestapo kicked in the door of his family’s home, leaving him (a mere toddler) for dead and carting his father off to be shipped to the death camps.
He would later learn that one of his father’s old friends (who had become a German soldier) tipped his father off about the Nazi’s real intentions, thereby giving him critical information which enabled him to escape and flee his homeland with his family in the nick of time.
His father had been a doctor in Austria but would have to start over as an intern and an ambulance driver in the United States and work long and hard to get a practice re-established.
But, Peter was fortunate. Through his father’s efforts he would be able to grow up in a free country and pursue his dreams. He was able to attend Black Fox Military School, U.S.C. and the Southwestern College of Law.
He was a law clerk for the D.A.’s office while in school and later went on to become an assistant D.A. It was at this time that Peter realized the power that he and the other officers of the court had over people’s lives.
His internship with the D.A.’s office lasted just a little over two years. He then switched to the defense side of the law, choosing, from among four offers from prestigious law firm, the one where he could have the greatest degree of freedom.
Quickly he developed the reputation of being a high profile attorney who would keep his clients’ cases low profile. Soon the celebrities were coming to him. Over the years Peter has represented David Crosby, Sly Stone, John Phillips of The Mamas and Papas, Dennis Hopper, Peter Fonda, John Barrymore Jr. (Drew’s father), Edward G. Robinson Jr., Sal Mineo, Ryan and Tatum O’Neal and tons of other celebrities including “The Beverly Hills Madame” (Alex Fleming) and “The Hollywood Madame” Heide Fleiss, Dan Haggerty, Ike Turner, Christy and Jimmy McNichol, Robert Blake, Charles Bronson and Robert Downey Jr. However, his greatest compliment is his presentation of police officers and their families, medical doctors, and other fellow attorneys, when they have been accused of crimes.
Having been a prosecutor and defense attorney, Peter was ideal for this interview. His experience offers valuable insights in terms of what the recent changes in the laws of California mean to all of us and how the criminal justice system will deal with us, “the people.” His candid answers provide us with a look at the abuses and flaws in the systems that can, and does do dramatically alter the course of people’s lives. One of these days it could be yours.
Q: Do you feel the three strikes law if fair as it currently exists? Is it constitutional?
A: It’s apparent to me and to law enforcement that it creates a lot of injustice. I have a case now where the investigating detective involved is frustrated by it. The defendant committed a petty theft of some coins in a moment of weakness. And he confessed to the victim and offered restitution. He’s married, has a good job, yet he still faces 25 years to life because it’s his third strike. The Deputy D.A. who filed the case as a petty theft with a prior felony conviction and alleged two prior strikes.
As to whether it’s constitutional: unfortunately, yes, it’s been ruled constitutional. It’s a political problem. In the last election, the mostly uninformed voters approved (as they usually do) this pro law enforcement legislation.
This leaves a criminal defendant no choice but to go to trial.
Even Los Angeles D.A. Steve Cooley has commented about the injustice, the court congestion and the cost to the taxpayer that the three-strike law has created.
The jails are backed up to the point where a one year County Jail is in reality only a few months, inmates are sleeping on the floor, there is rioting in the local jails and our tax dollars are being used up to the point where there’s not enough in the budget to open jails that are already built and properly maintain the owes that are.
In the beginning only the D.A. had the power to decide whether or not a strike should be removed from criminal complaints. Different D.A.’s in different counties in California had different policies and criminal defendants were not being treated equally.
Later the Romero case allowed the courts to also decide whether or not to strike a strike to prevent unfair life sentences.
There is still a lot to do in this area to prevent injustice since one strike can still double the original sentence.
Q: Is it commonplace for police and D.A.’s to lie or manipulate the facts when presenting evidence?
A: D.A.’s do not lie under oath, as they usually do not take the stand. However, some o f them have been known to be untruthful and less interested in the pursuit of justice than in winning (a case). But, those instances are quite rare. There have been cases reversed by the appellate courts based on the misconduct of the prosecutors.
Recently, there was a case where a prosecutor requested her investigating officer to eavesdrop on an attorney and his client (an obvious invasion of the attorney/client privilege), for which the attorney was severely reprimanded.
There have also been cases outside of Los Angeles County where prosecutors have been reprimanded for failure to disclose evidence that could have exonerated the defendant at the trial.
But again, these cases are few and far between. Most of the prosecutors I’ve dealt with are professional in their ethics and integrity.
As for the police lying and manipulating facts: yes, unfortunately it does occur. And we, as counsel for the defense, are able to see it a little more clearly than those who are not involved.
The LAPD Rampart scandal has helped convince once skeptical jurors that “there finest” are not perfect as once believed. And the LAPD and the D.A.’s office have been paying the price in the courts.
Some things are easy to say and, once said, hard to disprove; such as: “I saw the defendant throw it on the ground.” “ I saw the butt of the gun protruding from under the car seat.” Or, “The defendant admitted it was his in a spontaneous declaration.”
However, again, most police officers are honest and do have integrity; and those that stretch the truth eventually develop reputations that live with them.
Q: Does a poor defendant have a fair chance to defend himself in our current system of justice?
A: That depends on what you’re comparing his chances to. Obviously he has a better chance in our system than in those of third world nations and even in major democratic powers. We have to remember that there are still countries that invoke the death penalty in narcotics cases, that cane you for vandalism, that have no bail system and no rules regarding timely arraignments and trials.
In this country a defendant who can’t afford a lawyer is given a public defender or a court appointed lawyer in a case where his life or liberty are at stake. However, the budget of these attorneys and it’s becoming very difficult, especially in death penalty cases, to get the needed funding to properly defend such cases.
Our country has a good system of justice but it’s being chipped away at every year. Law and order is always a political issue and you can only chip away at our system so long before we make ourselves vulnerable.
Take a look at what former president Clinton said in his state of the union speech. In his zeal for law and order he indicated that he favors “one strike and you’re out,” which of course is totally unrealistic. But, it will get some votes from those who don’t fully understand our justice system in the same way that law and order propositions placed before California voters slip through because most voters don’t see beyond the bold print.
9-11 has also played a significant roll in restricting civil liberties and has been the recent topic of local news and talk shows.
Q: Does “Presumed Innocent” have any basis in fact? Did it ever?
A: The presumption of a defendant’s innocence is a concept we would like to believe exists in this country. However, in many ways, it’s fiction.
Because of the power of the media, it’s now often very difficult for a person to be shielded with a cloak of innocence if the media does not champion his or her cause. And it may be months or years before the jury brings in a verdict.
And also, for the purposes of posting bail, you are in effect presumed guilty. This amount can determine whether you remain at liberty or in custody pending trial.
For example, the McMartin family spent years in jail and were made out to be devil worshippers and child molesters by the media before they were finally released without conviction. There are many other such horror stories.
Each year the bail schedule goes up on just about every crime. Obviously, a defendant who’s poor is not on equal terms with a person of means when it comes to the ability to post bail.
Q. Please explain the term “enhancement” and its applications with regard to bail, charges, and sentencing?
A: Enhancement means just what it says in the dictionary: an increase. For example, bail is increased when you have prior convictions. It can also be increased if weapons are possessed or used in a crime.
When it comes to non-violent crimes, bail can be increased when the quantity of drugs possessed exceeds a certain amount or when a weapon is found in a position to defend the drugs.
Bail can also be enhanced in cases of theft when the amount of the loss exceeds a certain figure.
These are just a few examples that spring to mind, but there are many more reasons bail can be enhanced.
Q: What is the point of such high bails?
A: You have to understand that the people in charge (from politicians down to the policeman on the beat) consider themselves to be the protectors of society. The courts take into consideration the nature of a crime, the risk of flight (by the accused), the danger to the community, and the enhancements we spoke of earlier, and because it’s a law and order issue, bail amounts are increasing in correspondence to the increase of sentencing.
The bail schedule in my last third strike case (which I mentioned earlier) was over one half million dollars which, to most people, is equivalent to no bail.
I advise all my two strike clients to leave the state.
Q: Why is that?
A: They’re too vulnerable to the system and they can find themselves serving a life sentence behind bars for an offense that in prior circumstances would have led to only a misdemeanor or a county jail level sentence.
Q: How important is a good criminal defense attorney?
A: It’s the only thing between you and your liberty. Let me explain it this way: there are only three things the state can do to you to punish you. They can take away your life. They can take away you freedom, and that’s part of your life. Or they can take money and property from you. So, a criminal defense attorney is the only thing between you and the loss of what is most precious to you.
Q: Is the truth really an issue in a courtroom?
A: Of course. We’re always looking for the truth but there are cases where it’s not achieved. Each year we see people released after years of imprisonment because their innocence was finally proven after they were convicted. The science of DNA has helped free many innocent men. Unfortunately, many more innocent people are still in prison because their case(s) do not involve DNA.
A lot of prosecutors and defense attorneys sometimes forget about the truth in their zeal to win.
You must remember, career prosecutors use every case as a stepping-stone to get up the corporate ladder in government. Marcia Clark and Chris Darden are perfect examples. Because of their prior victories and because of their qualifications, their boss, D.A. Gil Garcetti, picked them to prosecute the O.J. case. They lost the case and still became millionaires. They can probably make more in a few weeks on the lecture circuit than what their prior boss made in a year.
This is an unusual case, but there are many prosecutors who step up to judgeships or enter into politics, like prior Mayor Rudolph Giulianni of New York City.
And yet, I remember a prosecutor I admired when I was a law clerk in the D.A.’s office conceding to a jury and speaking up for the defendant’s innocence in closing arguments. This prosecutor was convinced he had not met his burden of proof for the defendant’s guilt.
And once, when I was trying a manslaughter case as a D.A., I had no problem throwing in the towel in the midst of my case when I felt I could not meet my burden of proof. I felt it was my job.
These days one would rarely expect to see such conduct by a prosecutor.
Q: What’s your opinion about the verdict in the O.J. case?
A: In this country, under our justice system, when the jury speaks, whether we like it or not, we must abide by the results. I think we should all get on with our lives and leave history behind us rather than continuing to dwell upon the fairness of the verdict or being critical of the prosecution.
But, for those who believe in O.J.’s guilt I can say, this is a result of what happens when you get caught trying to frame a guilty man.
Q: Do you see prejudices against defendants because of race, gender or status? If so, how is it manifested?
A: As to prejudice, it’s been my experience that to be merely accused of certain crimes creates a stigma and prejudice. As defense counsel we often feel this hostility extending to us when we represent people accused of such crimes as child molestation, forcible rape, etc.
In the recent well-known Valley Rapist case that I just tried in the Van Nuys Superior court, we were dealing with a mentally ill defendant. The issue was not the defendant’s guilt or innocence, but rather his sanity. Some of the charges against the defendant included counts of sexual abuse of a child.
The defendant’s father was a police officer who was shattered at the way he himself was treated by other law enforcement personnel connected with the case.
Q: Other Than this unusual case are defendants persecuted or treated differently because of race, gender or social status?
A: There have been complaints about the severity of punishment for certain crimes associated with minorities. Some black community leaders and defense attorneys feel that what they see as dis-proportionately heavy sentences given to crack cocaine offenders are directed towards the black community.
I don’t see any widespread prejudice against minorities in L.A. County. We have many minority Judges, D.A.’s and Police Officers.
Q: Why is a jury trial and additional time in terms of sentencing used as a threat to defendants? Isn’t it their right?
A: Whenever the sentence in a plea bargain is less than the maximum there’s always the possibility of exposure to the maximum sentence if one goes to trial and is found guilty. And yes, it is used as a weapon against defendants by prosecutors and judges all the time.
Of course the defendant has the right to trial. But, after possibly having spent months in jail waiting to go to trial, he is offered a sentence of time served (meaning, the time he’s already spent in custody will be his sentence if he agrees to plead guilty or no contest), it would be gambling to insist on a trial. Even if the prosecutor’s case is weak, the defendant still could conceivably face years in state prison if he is convicted,. Logic indicates he can’t afford the gamble, especially if he has a family or life to come back to.
Q: Are public defenders able to represent their clients adequately? Aren’t they overburdened?
A: Public defenders are also counsel for the defense. Some of them are very competent, especially the old timers who have a lot of trial experience. Some of our best judges and criminal attorneys used to be public defenders. However, they do have a heavy calendar. They represent over ninety percent of the criminal defendants in Los Angeles County and a great percentage of those defendants are in custody because they can’t afford to post the bail.
It’s not uncommon for criminal defendants represented by the Public Defender’s office to request a hearing in which they ask that their public defenders be relieved because they are not adequately representing them. During these hearings the defendants are primarily complaining about the “bedside manners” – the lack of attention- they feel they’re getting, rather than the attorney’s competence. Most of these hearings are denied.
You must also remember that, in spite of their competence, many public defenders are not seeking to develop a reputation in order to acquire more business. Many times they’re verbally abused by the criminal defendants who also tend to think of them as second rate because they’re free.
This can cause a psychological breakdown in the attorney/client relationship because a criminal defendant’s street mentality will always think, “You get what you pay for.” There’s an attitude that if you have a free lawyer you’ll get your money’s worth.
Public defenders are overburdened and may not have the time for the handholding necessary in private practice not only of the defendant, but also of his family.
Q: It is my impression that D.A.’s are oblivious to the fact that defendants are human beings. As a former D.A., what is your impression?
A: When you’re discussing issues of law, it’s true that the defendant becomes mainly this body sitting next to counsel for the defense as with medical doctors and their patients. The issue becomes the tumor and how to remove it without spreading the infection, and not the body on the table.
However, when you’re discussing a plea bargain and preparing for sentencing, it’s the job of defense counsel to bring home to the judge and the prosecutor who this human being sitting next to you really is and what the court and the prosecution should take into consideration in meting out the sentence.
It’s one of the most important jobs of the defense counsel to balance the positive aspects of the defendant’s history against the anti-social behavior of which he’s accused.
It’s true that some D.A.’s are insensitive, just as some judges may be; but that’s the human factor we all have to live with.
Q: What improvements or reforms in our criminal justice system are most needed?
A: If we look at history we want to improve upon it. I suggest, to begin with, that peace officers be required to have a minimum of two years of college. Later, a full college degree should be required. Likewise, we need to raise their pay scales accordingly and make law enforcement a real profession rather than just a job. In some countries law enforcement agencies have already recognized this need.
We also need to weed out recruits with psychological and personal problems.
In this state a brain surgeon or a rocket scientist can’t carry a gun. But a high school graduate who goes to a police academy for a few months can.
Power is an easy thing to abuse and we have to be far more careful who we entrust it to.
Also, police crime labs should be taken out of law enforcement’s control and run by the private sector to ensure competence and fairness to the defendant and avoid the type of fiasco we saw in the Simpson case as well as other cases.
Additionally, crime is simply a function of social and economic conditions in our society. We need to address the causes of crime by developing effective social programs and education, drug abuse treatment and employment. These things have a track record of effectiveness. Rather than building more prisons we should invest our criminal justice dollars in rehabilitative programs.
The present harsh sentencing laws should be re-evaluated, for incarcerating young men for long periods has a ripple effect on the community, tearing apart families and creating a generation of fatherless children. Overpunishment will not prevent the problem; it will only contribute to it.
The California voters in executing proposition 36 last year have recognized this by allowing even repeat offenders to be treated as civil addicts and placing them in drug rehab programs rather than be jailed and released to reoffend.
And lastly, determinate sentencing policies, although adopted to eliminate racial bias in sentencing, have in fact operated to the detriment of the poor and minority offender. They forbid judges from taking into account social adversity and other factors for sentencing.
Judges should be empowered to mitigate sentences for sound reasons in the interest of justice. But, most of all, I think the American public, especially the politicians, should stop pretending that there are any quick and easy fixes to crime.
Now it’s rare, if almost not at all, that a sentence is considered before a crime is committed. Raising the sentences and overpunishment is not a solution.
There are crimes, especially sex crimes, which call for consecutive punishment for each separate sexual act even if they occur within seconds of each other. I represent a defendant on appeal who was sentenced to 30 years for a “date rape”. He had no prior record, a good job and there were no physical injuries.
People that are criminally orientated are beginning to get the idea that they would be better off killing the victim. That would likely get them twenty-five years if there were any evidence other than the victim’s testimony.
Q: What do you think about the new Katz law that gives the police the power to arrest someone because of suspicion and with no evidence whatsoever?
A: I’ve dedicated my career to the preservation of human rights. The state and the government also have rights. But with power comes the temptation for its abuse. We have to constantly search for that balance between individual rights and the protection of society.
I don’t think giving the police power to arrest with no evidence protects individual rights.
It encourages the abuse of power.