JDP: And always remember this. In this country, the US Supreme Court has said a man’s home is his castle; you cannot get into that castle without a search warrant.
JF: Now, come on, Jack. If you’re not guilty and you didn’t do anything wrong, only a guilty person wouldn’t let them in and only a guilty person would ask for a lawyer.
JDP: That’s why we have to be very careful in the selection of our jurors, Ms. Ford. Because we don’t want to have a juror on our panel that thinks like that, because in this country, our constitution says you are presumed innocent until found guilty beyond a reasonable doubt by a jury of your peers.
JF: So it matters not what the agent at the door says or thinks or threatens; you should exercise those rights so that you can best protect yourself.
JDP: That’s correct. If you let that agent cross that threshold, he could go anywhere in that house he wants to go. It’s a little tough to revoke your permission for him to go in when he’s got a badge and a gun. And he just kind of wanders around and looks in all of your stuff, and you think, “Well, he can’t do that.” But yeah, he can. You let him in. Don’t let him cross that threshold. You come outside and talk to him. They’re looking for evidence. And why are they talking to you? They want you to confess or tell them somebody is doing another crime or something like that. They’re very adept at their jobs.
JF: And they’re nice guys; they’re not mean guys.
JDP: Oh, they’ve got kids and dogs and houses and lawns and lawnmowers and a whole routine. They’re all nice guys. Some of these guys are my best friends. But if he thought I was doing something, if he sat down to have a conversation with me, then you always have to say, “Is this conversation for the record?”
JF: It’s always for the record with the feds, right Jack?
JDP: That’s exactly right. And it’s always for the record when you talk to a police officer. “Officer, I only had one beer,” and the officer says, “Yes, I can smell not very heavy alcohol on your breath. By the way, do you take those oxycontin for pain?” “I certainly do; my back is killing me.” “When’s the last time you had an oxycontin?” “I’ve had four today.” “Sir, you’re under the influence of drugs.” Be careful. They’re your friends until… Okay, now, if I have a problem and I need someone who makes a quick decision and takes no prisoners, I’m not calling a defense attorney. I call a cop. I want it done. “Help me, brother.” I have tremendous respect for our law enforcement guys in the field.
JF: I do, too.
JDP: But anyway, back to federal criminal defense at your arraignment. If you’re indicted by a jury of 16-23 people, you do not have a right to have a preliminary hearing. You do have a right to have a hearing for detention. Will you be detained or not? That judgment call is usually by a United States Attorney who says, “I want him to be detained; he’s a flight risk, and he is therefore a danger to the community.” You must always know what to do, and that’s why it’s important to have an experienced Oklahoma City Criminal Defense Attorney in federal matters like Ms. Ford and myself. It’s critical that you have somebody who knows which stage the proceeding is and what law is involved—how the procedure works. I can assure you within the sound of my voice, in Oklahoma, there are probably not more than a dozen experienced federal criminal defense attorneys. It’s just a field of endeavor that a lot of people don’t like to do. Maybe because of the 70-Day Rule. When they file their indictment, they’re ready to go to trial.
JF: Well, and you have to have a trial lawyer, too, because there’s no such thing as a plea agreement in federal court, right?
JDP: All plea agreements are blind.
JF: Which means the judge is making decisions. Litigation is going to happen. Whether you’ve agreed and admitted your guilt or not, you still have to argue to the court, so you have to be with a lawyer who is experienced in the courtroom, who is able and willing to stand up to the federal court judge or to a jury because you don’t get to agree to a deferred, and everybody goes home, and everybody goes on about their business. This not state court, so at every proceeding, you have to have someone who is ready, willing, and able to put 12 in a box. That’s why a trial lawyer is what you’re looking for.
JDP: A federal trial lawyer. There are a lot of good state trial lawyers, but they don’t come to federal court. Two reasons, it’s a rocket docket, and you’ve got to be prepared—you can’t take the time reading through Title 18 and see what the federal rules are and all of that; you have to know that stuff.
JF: You’ve got to know it and be ready to go on the fly.
JDP: That’s exactly right.
JF: That’s why I’m so glad I have you, Jack. I get to piggyback on the back of your 45 years of experience and have the benefit of learning about those sentencing guidelines from the best of the best.
JDP: Oh, those sentencing guidelines. You know, I actually was—that was in 1984, and I don’t even think you were born, then, were you?
JF: I was born in ’84. I’m not going to tell you how old I was then, but I was born.
JDP: Well, I was trying a case.
JF: I was not even in school.
JDP: That’s kind of what I figured. Well, when the sentencing guidelines were passed by Congress, and everybody was going, “Oh my gosh!” You know how government likes charts and menus.
JF: Oh, their demonstrative aids and towers of power!
JDP: And they go down through here, and it says this over part I and part B—that’s what the sentencing guidelines are. They were passed in 1984, they were ruled constitutional by the United States Supreme Court in 1987, and in the year 2003, the United States Supreme Court found the United States sentencing guidelines were no longer mandatory, but were advisory. And it gave the judges back the ability to look at a certain defendant who’s already paid back a couple of hundred thousands of dollars in a bank embezzlement case—no harm, no foul—and what a waste of time it is to put this guy in jail to the tune of $3,800 a year. Let’s just put him on probation, make sure he does all of these things, and when he finishes his probation, “Thank you very much. You can become a citizen.” Unfortunately, he’s already a convicted felon, but you can’t play—particularly when you get caught in a federally-insured bank. It’s very important—I cannot emphasize the experience of a federal criminal defense attorney such as Ms. Ford or myself. Federal criminal defense is no place to have training wheels on; it’s impossible. It’s the wrong place. Too much is involved. The crimes and penalties are too draconian. Right now, the emphasis is on human trafficking, a deplorable crime. We’ve handled some human trafficking cases.
JF: Yes, we have.
JDP: Before that, it was the HIDTA—high impact drug enforcement—that basically worked with methamphetamine. They were after that. Before that, it was the section 924©. Guns. A convicted felon in Oklahoma can possess a long rifle for hunting purposes. Shotgun or rifle.
JF: That’s the state law.
JDP: That’s the State of Oklahoma law. You can’t have any pistols. A convicted felon under the federal system cannot even possess ammunition. No gun involved, just ammunition.
JF: So not only is the punishment sometimes harsher, the procedure sometimes harsher, but also the constitutional rights you walk away from are much greater than what you might see in state court. And that’s another reason there’s such a difference between a state court lawyer and a federal criminal defense lawyer.
JDP: I get a kick of these people who say, “Oh, he got off on a technicality.” Very few people realize these technicalities are fundamental rights. They are constitutional protections that were given to us over 200 years. “Here, they can’t have a warrant until they come into your house. And it’s got to be issued by an impartial magistrate upon probable cause. We’re not going to let you cross that man’s threshold at all.” That works for the feds as much as it does for the state. And it’s more important than people understand—their constitutional rights are granted to them in federal courts in bigger portions than in state court. And I’m not saying that state court doesn’t care about them; it’s just the volume of people who are charged in state court. Ms. Ford, how many times have I told you what the conviction is for a federal criminal defendant?
JF: Several times.
JDP: And what would that number be?
JF: 98%
JDP: 98% of the people charged across the United State; 98% are convicted. What have I told you about the 2%?
JF: There aren’t very many of them around.
JDP: And what is the 2% club?
JF: Those who have received an acquittal in federal court. It is a badge of honor.
JDP: Ms. Ford, you and I are in that category, aren’t we?
JF: Yes, sir. We are. We’ve had a lot of good luck in federal court.
JDP: Nobody understands the 98% and the 2% club because people just go merrily on their way, going to the movies, and they’re in theaters, and at concerts, and this, that, and the other. And they never think about the federal government. Ms. Ford, do you know what the federal government did—they told you when to get up this morning?
JF: Apparently they did, Jack. Tell us why the federal government told me when to get up this morning.
JDP: Did you ever hear of Daylight Savings Time?
JF: I have.
JDP: And who established that?
JF: Is that the feds?
JDP: That’s correct! And, Ms. Ford, when you go to the ladies’ room, do you know the federal government tells where you can go to the ladies’ room?
JF: Man, I haven’t ever thought of the feds when I was in the ladies’ room, but tell me how they control that, too, Jack.
JDP: Did you ever hear of the EPA?
JF: Yes, sir.
JDP: And have you ever looked at your water bill at your home or apartment where it says, “Unfunded federal mandate.”
JF: I’ve always wondered what that fee was.
JDP: Basically what that is is the federal government has said, “You build this kind of sewer system” or “You build this kind of a waste water system” and we don’t have any money for you.” It’s just “You build it, and we don’t care how you build it.” That’s why it’s called federal unfunded mandate. So there’s just two examples of how the federal government has encroached in our lives now. When you get in trouble with the feds, you’ve got to have someone who knows what they’re doing like Ms. Ford—knows what questions to ask and specifically knows what to do. People in state court—I cannot tell you the admiration I have for any attorney that goes in front of a jury, their peers, 12 people, and actually tries a case on the behalf of a defendant. But it’s not that easy to take that person out of a state courtroom and put him into a federal courtroom.
JF: Well it was a hard transition for me when I moved from state court practice to federal court practice. It is a very different beast, if you will. I’m enjoying it, learning the ropes, but it is quite different than anything I’ve ever done before as an attorney. And it’s very different to even talk to my friends and colleagues about it. They oftentimes are shocked at the pace, at the rules, at how bound we might get up in the rules. And it’s a difficult thing to move forward with, and I think our clients are very lucky because when they come here, they don’t just get the benefits of the energy and the mouth and the fire, but they also get you with the great experience. I think it’s okay to tell our listeners that, oftentimes, federal court cases (almost every one of them—not every one of them, but most of them) we do together, whether they’re your clients or my client. I think it’s an incredible service they get—they get both your experience and my youthfulness, but together they’ve got a lot of attention, a lot of love, and a lot of dedication to what’s going on in their defense.
JDP: I would not be associated with you and our staff if I did not believe that wholeheartedly. It’s a journey you and I began together, and hopefully we’ll end together. Anyway, I think that’s enough.
JF: Thank you so much, Jack, for talking to us today. I know you’re going to talk to us again soon, and we’re going to do more on federal court practice—the ins, the outs, what our clients need to know, and what people need to know about federal criminal defense here in Oklahoma City. So thank you very much, Jack, for joining us today.
JDP: You’re quite welcome.
