Interviewer: Let’s talk about the judges themselves. What have you seen in the courtroom that makes judges more likely to listen and work with defendants versus what makes them not want to work with the person? Specifically are there any things that you’ve seen that people can do or that you can do in court that helps them in front of the judge?
In Arizona, DUI Convictions Do Carry Mandatory Minimum Sentences
Brian Sloan: For the most part I think judges are impartial. Unfortunately, most judges tend to be former prosecutors. It’s just the nature of the beast. Once they put on that robe though, I do believe most of them do try to treat both sides fairly. However, in many instances, the judges’ hands are tied, especially when we’re talking about DUIs.
Even a First Conviction Will Result in a 24-Hour Incarceration
There is a required sentencing range. A person who is convicted of any type of DUI has to spend at least one day in jail. If it’s a misdemeanor the maximum is six months. If they’re charged with felony DUI also known as aggravated DUI, they’re looking at a minimum sentence of four months in Department of Corrections, and a maximum sentence of 3.75 years if they are convicted because the judge’s hands are tied. They can’t be extra nice and decide that the person will receive no jail time.
Your Defense Attorney Will Try to Establish Credibility
I think the judges respect honesty, just like a jury also respects honesty. What I try to do is get credibility in front of the judges and in front of the juries. I think that is to the best benefit of my client.
There are some attorneys that will go in front of the judge and make the same arguments every time. There’s one attorney that is known for arguing that their clients requested an attorney. In every case that they have they argue that their client’s constitutional rights were violated because their client requested an attorney.
No one believes this person. The judges don’t believe it. This attorney will not win a motion. Maybe they look good in front of their client but they’re not going to win a motion and the judge is really not going to believe anything that that attorney says.
I go into court and I try to be very credible. I only argue issues that I legitimately see. I back it up citing case law. I think that credibility helps my clients. I don’t believe I’ve ever received anything more than a minimum sentence on felonies or misdemeanors, and I’ve been able to argue motions that are the first of its kind and get judges to really consider what I’m arguing and not just dismiss it outright as a frivolous motion.
There Are Occasions When It Is Best That the Defendant Does Not Testify
Interviewer: How else do you build credibility? Can your client help to build credibility in the courtroom?
Brian Sloan: It depends on if they are able to take the stand. There are a few issues that will prevent someone from taking the stand. They can accept or reject my advice. Basically one of the constitutional rights of a person is to take the stand and testify if they choose to do so. I cannot prevent them from doing that. I cannot require them to take the stand and neither can the prosecutor, but there are some reasons why a person may not want to take the stand to testify.
The Defensive Sniper Approach: Do the Charges Always Fit the Actual Offense?
The way that I argue in front of a jury is what I call the sniper approach. There are a lot of attorneys that will go up there and argue what I call the shotgun approach. “My client wasn’t drinking. My client wasn’t driving. My client didn’t know the license was suspended.” Basically, they just throw everything out there to a jury, hoping that something sticks. I don’t think that establishes credibility with the jury.
What I like to do, any chance that I get, is explain to the jury all of the elements of an offense except for one and explain to them, “This is why you have to find my client not guilty”
I’ve handled many trials where I will go in front of the jury on something like an aggravated DUI case and tell them, “Yes. My client was driving and yes, my client was drinking and yes, they were impaired, and you should find them guilty, however, they are charged with aggravated DUI, which requires that the prosecutor prove that he knew his license was suspended or had reason to know his license was suspended. My client did not know that. If you find him guilty, find him guilty to what’s appropriate.”
I think I establish a good deal of credibility and it’s not going to save my client from walking out of there scot-free but if it saves my client from a felony conviction. I think they’ll be very happy with that. If I can get up there and honestly tell the jury, “Believe me, this is what this case is all about,” I think it really helps my client achieve a much more favorable outcome.
Interviewer: I can see why they would respect that because you’re not just flat out denying everything. You’re not saying that the police are crazy or the whole thing’s impossible. You’re being very specific and methodical and it makes sense.
Can Attorneys Be Perceived as Overzealous? In Attorney Sloan’s Experience, It Pays To Be Calm and Collected During the Trial
Brian Sloan: I’ve also had some luck in just basically telling the jury that, “I’m with you folks. I’m just learning all this for the first time. I understand your concerns. I understand the evidence that’s been presented to you and that it’s confusing. It doesn’t make sense.”
Rather than being the defense attorney that’s making an argument at them, I’m trying to be just another person who’s listening to the testimony the same as them. “I’m one of you. I’m not the one trying to present an argument to you. I’m not arguing at you. Let’s just talk about this. Let’s figure this out.”
I think there’s a certain level of success in doing that. The prosecutor can get up there and yell and scream and I can sit there and be nice and calm and quiet and say, ‘This just doesn’t make sense,’ and I think the jury is more inclined to side with me as the person who’s really trying to get to the truth, not the person who’s trying to argue a side.
You Have Certain Constitutional Rights Before and During Your Trial
Interviewer: Touching back on defendant’s testifying at their trials, if clients ask you, “If this goes to trial, or even if it goes to court, will I have to go up on the stand?” You can tell them, “No. You don’t have to,” no matter what, right?
Brian Sloan: Correct. When we’re talking about the client, the client has certain constitutional rights. They do have a right to plan their defense. They have the right to testify. They have the right to put on evidence and subpoena witnesses to present the evidence on their behalf.
When it comes down to it, the attorney does have a lot of control, I’ll say. The defendant is able to decide whether they want to testify. That is completely their choice and an attorney can’t force them. The defendant is the one that decides whether to take a plea agreement or go to trial. Defense attorneys cannot their force their client’s decision for one or the other option.
How to Defend a Case Is The Decision of the Defense Attorney But It Has to Be a Defense the Client Is Comfortable With
How to argue a case is really up to the defense attorney. The client doesn’t necessarily have a say in what the arguments will be. I can tell you that in my practice, I do not like the idea of forcing a certain defense on my clients. This especially is true because I like to do the sniper approach.
I like to say that, “My client did do this, or my client is guilty of this, but did not do this.” Even though it technically is completely my decision, I do not like the idea of telling my clients, “You are going to accept responsibility for this, or you are going to allow me to say that you’re guilty on this.”
I like my client to have input, but the decision of how to defend the case is really the attorney’s decision. The defendant is simply limited to, “Do I want to testify, and do I want to take a plea or do I want to go to trial?”
That’s why I went to school. That’s what I’ve been training to do all these years and the defendant has options. If the defendant doesn’t like the way that the attorney is approaching the situation they can always hire another attorney, they can attempt to get a public defender or they can represent themselves. It’s always their choice.