Sheboygan, WI—Like many criminal defense attorneys, Kirk Obear didn't get his start defending clients.  A veteran of the United States Air Force, the Wisconsin criminal defense attorney began his legal career as a military prosecutor.

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Initially, Obear told laws.com in a recent interview, he thought prosecution was his calling.  “The military puts a lot of resources into training prosecutors to achieve convictions and I was initially taken in by the thought that I was saving the world by putting people in jail.”  As his career progressed, though, he began to see things differently.

“As I gained more experience,” Obear says, “I was assigned more difficult cases, and it eventually occurred to me that the system is heavily weighted toward the prosecutor in many ways.  When I started having doubts about whether some defendants were truly guilty, and began to express those concerns to my superiors, I was told that the jury system will do its job and that I shouldn't be concerned about my conscience getting in the way as long as the jury found the person guilty.”

Unsettled by the answers he received from his superiors, Obear expressed his discomfort and moved into a defense attorney role in the Air Force.  “Since then, I have never turned back,” he says.  “Working with real people who have families, goals, and have often merely exhibited a moment of poor judgment has been the most rewarding aspect of defending people.”

In today's justice system, Obear says that he's troubled by changes that make it harder for criminal defendants to exercise their constitutional rights.  “There has been an ongoing, and in many ways unchecked trend toward plea bargaining in criminal cases.”  These plea bargains, he says, haven't been good for defendants.  “Looking at the universe of criminal cases that are charged nowadays, the vast majority of them are settled without a trial, including many that should not be resolved that way.”

The problems, as Obear sees them, don't end there.  “Another big problem is that there has been a marked increase in the charging of cases that are clearly being 'overcharged.'  This presents a problem because law enforcement and prosecutorial agencies continue to receive increases in funding and personnel, while the defense community seldom receives any increase in resources available to effectively represent our clients.  For example, in Wisconsin, the reimbursement rate for attorneys appointed by the court to represent indigent defendants has not meaningfully increased since the 1970s.”

This minimal funding, Obear says, contributes to an atmosphere in which deals are made at any cost—even when the defendant might have been able to achieve a better resolution by going to trial.  “In Kirk Obear's fictitious utopian world,” he said wryly, “every case would go to trial, even if the defendant wanted to enter a plea … Sure, it can be said that a defendant has the right to accept responsibility and should get credit for that, but when that becomes the norm rather than the exception, we run the risk of innocent people believing that they are powerless to exercise their rights.”

When a client is represented by Obear, he says that he prepares to take their case to trial no matter what.  “Of course, it's the client's ultimate choice, but I do my best to instill confidence in the client making that choice by being fully prepared to take every case to trial.”

Obear considers it important for both defense attorneys and defendants to seriously consider their rights when making a decision about bringing a case to trial.  “I think that if we, as Americans, cease to exercise our rights, then it is that much easier for them to be taken away because it is assumed that no one cares,” he says.

Raouf Hannachi

Raouf Hannachi is a former Canadian citizen whose current whereabouts are unknown. Raouf Hannachi came to the attention of Canadian authorities as a potential terrorist who was monitored prior to the events of September 11, 2001 as an apparent recruiter for jihadist activities.

Raouf Hannachi was born in Tunisia who moved to Montreal. In 1986, he was made a citizen of Canada and became an active part of the jihadist Islamic community there. Raouf Hannachi commonly recruited young men for the jihadist cause by telling them about how he had trained in a camp run by terrorist Osama Bin Laden in Afghanistan at an unspecified date. Raouf Hannachi described training that included instruction in the use of AK-47 firearms, as well as instruction in urban warfare and proper use of explosives. Raouf Hannachi would urge these young men to join the jihadist cause.

One of the young men whom Raouf Hannachi spoke with and influenced was Ahmed Ressam, who later attempted to detonate an explosive in the Los Angeles International Airport. Raouf Hannachi was named as a terrorist recruiter by jihadist Abu Zubaydah after he was captured and interrogated by American Authorities.

Following the events of September 11, 2001, Raouf Hannachi returned to Tunisia in October. Allegedly, he left Canada because he felt harassed by the Canadian Security Intelligence Service. Upon his arrival, he entered the custody of Tunisian authorities, who questioned him about his role in jihadist activities. Afterwards, he was released from their custody. The current whereabouts of Raouf Hannachi are unknown. Canadian investigations of his activities concluded that he was probably responsible for the recruitment of some of the dozen or so Canadian citizens who trained in Afghanistan terrorist camps.

NEW YORK, NY—A commitment to civil rights for all people started early for Robert J. Feldman, an attorney who has been representing criminal defendants for over 30 years.  According to Feldman, his “wild adolescence during the 1960s caused me to always be suspicious of government and to cherish freedom and civil rights.”

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A member of the Brooklyn Law School class of 1980, Feldman says that while he was earning his J.D., “it became crystal clear that the only areas of law that inspired me were criminal and constitutional law.  Protecting the rights of the accused—and especially trying their cases—is the greatest gig imaginable.”

While defending cases for clients accused of everything from violations to felonies, Feldman says that he has become skeptical about the need to incarcerate many of the people who have been accused of crimes in the United States.  “So many individuals are either unjustly accused or are unfairly prosecuted for minor transgressions that certainly do not merit criminal conviction or incarceration,” he says.  “In my view, humans should not be caged unless they are a danger to others.”

In addition to victimless crimes like drug possession, Feldman also says incarceration should be reconsidered in public lewdness cases.  “Public lewdness nowadays is code for two adults privately (or with like-minded people watching) having some fun in the sand dunes or in a remote park or lover's lane setting.”  This kind of consensual sexual activity, he says, doesn't need to be punished with jail time by the courts or focused on by law enforcement for undercover sting operations.

Recently, Feldman defended one of these lewdness cases in federal court.  His client, a retired police detective with the NYPD, was propositioned for sex in an isolated beach area by an undercover officer.  A judge ruled that the detective was not guilty of lewdness because there was no way for other people to see his lower body or genitals.  Feldman also claimed during the case that the undercover police officer had lied about the actions that took place between himself and the retired detective.

In addition to defending clients accused of criminal acts, Feldman also recently gained national attention for representing Lt. Dan Choi, a gay Army lieutenant who was discharged from military service because of his sexual orientation while the controversial “Don't Ask, Don't Tell” policy was active.  Choi's protests of the DADT policy led to selective prosecution during protest actions.

Choi's case eventually led to federal judge Virginia Phillips ordering the end of the “Don't Ask, Don't Tell” policy, which led in turn to its legislative repeal by Congress and President Barack Obama.  “At the end of the day,” Feldman says of Choi, “he complimented us on our superb representation.”

That representation leads more clients to come to Feldman's door than he can help.  “Hundreds of people contact me every year because they want me to represent them,” he says.  “I only take clients who I believe I can help.  If I can't envision success, I will not represent them.  I agree to represent about 50 to 60 percent of the people who contact me.”
To learn more about Robert J. Feldman please visit his official website www.newyork-criminal-defense.com

Alexandria, VA—For Christopher Leibig, a practicing attorney in the state of Virginia since 1996, a career in criminal defense started with clambering onto a roof.  

Leibig explains: “The summer after my first year of law school I got a job as an investigator for the Public Defender Service in Washington, D.C..  My second or third day on the job, my boss asked me to climb onto a row-house,” to see if police officers could really have seen a drug deal.  The police's eyewitness view of the drug deal was the biggest piece of testimony against the defendant, so Leibig was shocked when he climbed the house and discovered that the officers couldn't possibly have seen what they claimed to.

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“A few days after I testified at a jury trial about it … after that, I knew I wanted to be a public defender.”  After serving indigent defendants as a public defender for six years, Leibig switched to private criminal defense practice.

The types of evidence being used in criminal trials today are changing with new technologies, and Leibig has kept up.  He has been actively involved in litigation about warrantless tracking with GPS technologies, and has taken classes about DNA and other scientific topics at the Forensic Science Master’s Program at George Washington University.

Even with these new technologies though, Leibig believes that “many cases turn on the same things they ever have: what happened, and why, and a lot of those questions will always be about emotions and not science.”

With his increasing name recognition in the Northern Virginia area, Leibig attempts to keep his volume low. .  “I think it's important not to make yourself too busy,” he says.  “You have to learn to turn cases away so the people you do represent get enough of your time".

Handling cases that are followed closely by the press can create challenges for defense attorneys, according to Leibig.  “Those cases put everyone, including prosecutors and judges, under a different sort of pressure.  As a defense attorney, the main thing is to never do anything that is not strategically designed to help your client.”

In addition to new technologies, Leibig says that criminal defense work is heavily affected by   the increase of mandatory minimum sentences.  “Lots of pleas happen because the laws force the client to risk too much to go to trial,” he says.  “This is the problem with mandatory minimums, the fact that juries are not allowed to know how harsh the punishment will be when they are deliberating about someone’s guilt or innocence.”  Because of these sentencing rules, for many criminal defendants, a guilty plea can be the only decision that makes sense from a risk avoidance perspective.

Perhaps it was his start as a public defender that makes him more sympathetic to certain kinds of cases, but Leibig doesn't necessarily demand that every single client have enough money to afford his services.  “A few times a year I will meet a client who I want to represent even if they can't come close to affording it,” he says.  “Sometimes you just see a case and think, if I'm not gonna do this, why am I even a lawyer?”

For more information about the Law Offices of Christopher Leibig, see www.chrisleibiglaw.com.

Scott Lee Peterson

Scott Lee Peterson is a convicted murderer currently incarcerated in California. He was tried and convicted in a case that began in June of 2004 and ended in March of 2005.

The murder case against Scott Lee Peterson began on Christmas Eve of 2002, when his wife Laci was reported as missing to the police. During the initial stages of the police investigation, her family stated their belief in the innocence of Scott Lee Peterson. However, police investigators when they learned that Scott Lee Peterson had been conducting an extramarital relationship with Amber Frey, a local massage therapist.

When police questioned Amber Frey, they learned that Scott Lee Peterson had misrepresented himself to her as a widower. Alarmed by this information, Amber Frey agreed to cooperate with the investigation and taped a number of phone conversations in an attempt to get Scott Lee Peterson to admit to his role in the disappearance of his wife. However, she was unsuccessful in her efforts.

In April of 2003, the upper half of the body of Laci Peterson and her fetus were found in a location north of a marina where Scott Lee Peterson had gone boating on the date of the disappearance of his wife.  An autopsy determined that Laci Peterson had had her ribs broken prior to her death. However, due to the advanced decomposition of the torso, it was impossible to determine the precise cause of death.

Scott Lee Peterson was subsequently arrested and charged with the murder of his wife. A police search of his boat determined that the only physical piece of evidence directly tying him to the death of his wife was a piece of her hair found on his boat tools. Therefore, the prosecution focused on the circumstantial evidence and testimony against Scott Lee Peterson. In presenting his motivation, they charged that Scott Lee Peterson murdered his wife in order to inherit her money and then marry Amber Frey. Expert witnesses called by the prosecution included a hydrologist with particular expertise in tides, who created a model timeline for how Scott Lee Peterson murdered and disposed of his wife on the water.

Defense attorneys called upon witnesses including Dr. Charles March, who testified that Laci Peterson's fetus died a week later than claimed by the prosecution. However, cross-examination revealed that the basis for this claim was anecdotal. The defense advanced several theories as to who the murderer was, including a prostitute who had been stealing checks from the Peterson mailbox, as well as advancing the hypothesis that Laci Peterson had been killed by a cult of Satanists. The defense also stressed the lack of direct evidence as making it impossible to convict Scott Lee Peterson with certainty beyond a reasonable doubt.

The jury convicted Scott Lee Peterson, who was then sentenced to the death penalty. A new appeal was filed in July of 2012.

Queens, New York—Some criminal defense attorneys start in the public defender's office, defending clients who don't have the money to afford their own lawyer.  Some, however, start on the other side of the criminal law fence, in the prosecutor's office.  Rochelle Berliner, a talented rising star in the criminal defense legal world, has been bringing her expertise from working with the D.A. to her job defending clients from all walks of life.

Berliner knew from the time she was in law school that she wanted to work in criminal law.  “The initial reason,” she said in an interview with laws.com, “was that criminal law offered something different each day.  Instead of working on a small piece of a very big case over a very long period of time, criminal law would allow me to be involved in multiple cases where the effects are almost immediate.”

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The instant gratification afforded by criminal practice was something that Berliner first encountered while working for the District Attorney's office for New York County, in the office of Special Narcotics.  Berliner felt that she was “making a contribution to society” in her prosecution job, while also having the opportunity to handle different cases every day.

Her switch over to the defense side of the law came in May 2005.  Opening her own criminal defense practice in Queens was a decision Berliner says she made for philosophical reasons.  “I knew I was ready to become a criminal defense attorney when I realized that the people I was prosecuting were human beings with families and futures,” she said.  “I realized that I could make more of a difference helping people repair their lives.”

Berliner says that it's hard to tell what percentage of potential clients who walk through her door she ends up defending, but says that there are things she won't do to get a client.  “I never sugar coat the truth,” she said.  “Those folks who want to be told what they want to hear—even if it is not the truth—will usually hire the person who tells them what they want to hear.  Folks who want the truth will trust me.”

As a criminal defense attorney, Berliner says she's happiest about “being able to fight for a person's rights and future and being successful at it.”  Her proudest moment on the defense side of the courtroom came when she represented two brothers who had been accused of selling drugs to undercover officers working for the New York Police Department.  

Berliner and her co-counsel brought video evidence to the court showing that the undercover officers had been lying about the events of the evening.  The video evidence resulted not only in the brothers' case being thrown out, but also the successful criminal prosecution of the police officers involved.  “The brothers then successfully sued the city for false arrest and other claims,” Berliner says—another example of how her firm is able to put things right when people have been unfairly prosecuted.

Providing representation for clients throughout the New York City area, Rochelle Berliner is an active member of the Queens County Bar Association and both the National and New York State Association of Criminal Defense Lawyers.  She also belongs to NORML, which attempts to lobby for the repeal of marijuana related criminal penalties, and the National Police Accountability Project.

To learn more about Rochelle Berliner please visit: https://www.rochelleberliner.com/

On November 9, 2012, the Department of Justice announced that a former Special Agent in Charge for Immigration and Customs Enforcement (ICE) in Miami was sentenced to 70 months in prison for the transportation of child pornography.  The man’s name is Anthony Mangione, and he is from Parkland Florida.  

Mangione was sentenced by U.S. District Judge Kenneth A. Marra.  He pleaded guilty to one count of transporting child pornography, and he was indicted on September 27, 2011.  After he gets out of prison, he must undergo 20 years of supervised release.  

Court documents indicate that Mangione used a computer and other electronic devices to download and transport images of minors engaged in sexual activity.  He performed the illegal activities from March 2010 to September 2010, and he set up numerous AOL email accounts to transport the images. In one case, Mangione transported images of minors engaged in sexual activity to a man in Delaware.  

Mangione was working as the Special Agent in Charge for the ICE’s Miami Office the whole time he transported the images of the minors.  After the ICE knew of the charges, Mangione was placed on administrative leave and eventually retired.  

The case was investigated by the Broward County Sheriff’s Office and the FBI.  The Department of Homeland Security, Office of the Inspector General also assisted with the investigation.  Deputy Chief Alexandria R. Gelber and Trial Attorney Michael W. Grant were in charge of the prosecution.  

The case against Mangione was part of Project Safe Childhood.  The initiative was started across the nation in 2006 by the Department of Justice to confront child exploitation as well as abuse.  The Project pulls together federal, state, and local authorities and resources to investigate those who exploit children.  

Source: U.S. Department of Justice

John Walker Lindh

One of the most unusual Taliban fighters on record, Washington D.C. born John Walker Lindh came to national attention after being captured by American troops in Afghanistan in November of 2001. After a normal suburban upbringing, his family moved to Marin County, California when he was 10. At age 12, John Walker Lindh first became in the religion of Islam after watching the movie "Malcolm X" and converted to the religion five years later in 1997.

 In 1998, John Walker Lindh continued to pursue his interest in his new religion by traveling to Yemen in 1998. He studied there for nine months or so, returned home to California, and then returned to Yemen in February of 2000. In October, he went to Pakistan and subsequently became involved with the Islamic terror group al Qaeda. During his training, he met Osama Bin Laden.

 However, following al Qaeda's attacks on America on September 11, 2001, John Walker Lindh regretted his decision to join al Qaeda. In his telling, he was fearful of the consequences if he left. Subsequently captured along with other al Qaeda members by Afghanistan Northern Alliance forces cooperating with American military forces, John Walker Lindh came to the attention of a CNN reporter, who was the first to discover that he was actually an American citizen.

 While in American custody, John Walker Lindh was involved in a series of violent fights between Taliban prisoners rising up against their military captors. When the uprising was put down, John Walker Lindh began a series of transfers between various military facilities and prisons. In 2002, he was indicted by a grand jury on a number of charges related to terrorism and conspiracy to murder American subjects.

 However, the prosecution of John Walker Lindh became more complicated when it was found that some of the testimony he had given could be perceived as having been resulted during torture, and hence inadmissable. To find a compromise solution, the head of the U.S. Department of Justice proposed that John Walker Lindh be offered a plea bargain. As part of these claims, John Walker Lindh would be prohibited from profiting in any way from books or other media related to the charges against him and would be required to drop any allegations that he had been tortured by any American government officials.

 John Walker Lindh agreed to accept the terms of the proposed plea bargain. Following sentencing, John Walker Lindh began serving a 10 year sentence in 2003. In 2010, John Walker Lindh returned to headlines when he sued the Federal Bureau of Prisons, claiming that his right to conduct group Islamic prayers was being violated. In response, the Federal Bureau of Prisons claimed that these actions posed a security risk. The case came to trial in 2012 and has yet to achieve a resolution. John Walker Lindh is scheduled to be released in 2019.

SEATTLE, WA—Criminal defense attorneys usually have a relationship with law enforcement that can be described as antagonistic.  Anne Bremner, one of America's best known legal analysts, made her name as a defense attorney with a twist: she worked to represent police officers and law enforcement agencies when they were accused of civil or criminal offenses.

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“I always had an interest in criminal law,” Bremner told laws.com in a recent interview.  “My father is a psychiatrist and worked with offenders and as a forensic expert.  His work fascinated me.  I followed criminal trials, read true crime, and read up on famous criminal trials in history.”

After getting her undergraduate at Stanford and law degree at Seattle University, where she describes herself as having been a very liberal student, she began clerking for a trial judge, then working for the D.A.'s office prosecuting sex crimes.  Her remarkable record of success—over 200 wins from 1983 to 1988—led to her leaving to pursue a career in the private sector.

In defending criminal cases, often for law enforcement officials, Bremner says she's found her calling.  “As a criminal lawyer,” Bremner says, “you are involved in helping people and potentially changing their lives.  I also took drama classes as a young child and oratory speech events later in high school and college.  They say criminal defense attorneys 'howl with the coyotes and bark with the dogs.'  It is a bit of an insular and renegade profession—I can't imagine doing anything else.”

Bremner has seen her star rise after working as a legal analyst on several television news networks, including CNN, MSNBC, and Fox News.  She says working in front of the cameras as part of these networks' press coverage of trials has been “the biggest learning experience of my career … I learned at the feet of the masters through this work.”

One of the most high profile cases Bremner has worked on recently has been the Amanda Knox case.  Knox, accused of a murder in Italy, was imprisoned for four years before efforts by Bremner and others working in the United States caused her murder conviction to be overturned.  While the Knox case is in legal limbo again after the Italian Supreme Court overturned her acquittal on March 26, Bremner says the case shows that “injustice anywhere is injustice everywhere.”  Bremner, who took the case pro bono, says “I believe that every private person has a public responsibility and that we lawyers have an obligation to make a difference.”

Bremner says that her commitment to defense comes from the very fundamentals of her personality.  “I am a real people person.  And my family has always been service oriented.  What I like most about criminal defense is the ability it gives to help people, and, at times, to right a wrong.”

Even so, the responsibility of being a criminal defense attorney can weigh heavy—even on a star attorney like Bremner.  “The biggest challenge about being a criminal defense lawyer is knowing that you potentially hold your client’s future in your hands. I am honored by the trust my clients place in me and always do everything in my power to earn that trust and to achieve justice for them,” she told laws.com.

Summary of Intention (in Criminal Law)

Intentionally is often synonymous with purposely, knowingly, recklessly, or negligently.  States define intentionality differently, but the definitions more or less the same when compared with the Model Penal Code. 

A general example of intention (in criminal law) is larceny.  In order to perform larceny, the defendant needs to intentionally steal property with intent to deprive the owner of the property permanently. 

Mens Rea

Mens rea address the mental intentionality of a crime.  Mens rea was broadly defined when laws started to address criminal intent, but now jurisdictions define mens rea after it meets the requirement of intentionality, knowledge, willfully, negligence, or recklessness. 

Intention (in Criminal Law)

A defendant in intentionally cause a crime if he consciously desires to cause harm and has knowledge that their actions will cause social harm.  The best example of intentionality is murder.  The defendant intentionally commits first degree murder if the crime was premeditated.

Intent can be transferred in criminal law as well.  For example, if the defendant murdered a person and accidentally killed another person during the crime, there is transferred intent.

Willfully committing a crime applies to intentionality, but there is usually an evil or malicious motive along with intentionality. 

With Knowledge (in Criminal Law)

The concept of intentionality is applied when a defendant has knowledge that an offense is occurring or there is willful ignorance.  For example, if sexual harassment occurred in an organization and the president or an executive failed to report the incident, they may be tried for willful ignorance.  The same applies if there is a high probability of the crime and the defendant failed to notify an investigative body. 

Negligence (in Criminal Law)

Negligence is similar to intentionality because the defendant has taken a serious risk that has caused harm to another person or property.  Negligence occurs when it is probable the harm will occur from the defendant’s conduct and the defendant is still engaging in the risk.

Recklessness applies to negligence, but recklessness requires that the defendant knowingly ignored the risk of his or her actions.  The line between negligence and recklessness is not always clear, but negligence usually requires that the defendant should have known they were taking a risk.  Recklessness occurs when the defendant was undeniably certain their actions were risky. 

An example of negligence occurs in personal injury law.  For example, if a municipality is aware that a section of a walkway is damaged and could cause injury, it may have to pay the plaintiff compensation if the defendant was injured. 

An example of recklessness involves drinking and driving.  The driver knows they shouldn’t drink and drive, but if they drive drunk and injure another person during an accident, they recklessly caused a personal injury. 

There are different degrees of intention (in criminal law), but all of the degrees indicate the defendant voluntarily or involuntarily intended a crime to occur.