Saturday, November 15, 2014

When Lawyers Go (way, way) Wrong... Denial of Bond and Why Everyone Needs Independent Legal Representation / Michael A. Haber, Esq. **ARRESTED / **305DUI

Meet Andrew and Alicia Schmuhl of Fairfax, VA.  That is their mug shots below:

They are both being held in custody on the most serious of charges, without bond.  Admittedly I know know nothing about VA law or procedure so I cannot explain why they are both ONLY charged with "malicious wounding, abduction by force or intimidation", but I do know why Alecia faces additional charges of "obstruction of justice without force and eluding or disregarding police", but we'll get there.  (First I have to explain the inexplicable.....)

Both of our heroes are lawyers (soon to be disbarred lawyers, but that's another story).  Andrew served his country as a Navy JAG officer and after his discharge he, presumably anyhow, practiced some sort of law as a civilian until such time as he became among the ranks of the unemployed.

In the interim, Andrew's wife Alicia, also an attorney, was, also for reasons unknown, fired from her position as a lawyer with the Arlington, VA law firm of Bean, Kinny & Korman on October 28th, 2014, and that's when this husband and wife lawyer team, again inexplicably, went all Quentin Tarantino / Oliver Stone / Woody Harrelson / Juliette Lewis....

After a silent alarm was tripped by one of the victims the cops responded to the home of Leo Fisher and his wife.  Turns out Leo was the managing shareholder at Bean, Kinny & Korman (Alicia's very recent former employer), and that he and his wife had been tortured and beaten by Andrew.  Leo and his wife described their assailants and what had happened to the cops, prompting a BOLO, a 4 mile car chase and the ultimate capture of the Schmuhl couple, with Alicia driving the "get away car". That said, here is what the cops pieced together and how the ensuing charges were levied: 

Alicia drove Andrew to her former boss' house and Andrew, allegedly posing as a cop and armed with zip-ties a knife and a stun gun, gained entry into the home.  He zip-tied both victims and, for reasons unknown, tortured them, tasing them both, repeatedly stabbing Leo in the head and neck and stabbing Leo's wife once.  Leo's wife provided most of the information to the cops as Leo could barely speak as a result of his head wounds, but cops say that there's nothing wrong with his hands and that he has been writing up a storm (in fact, if he decides to write the true story it might read like a Stephen King novel).

Again, the motive for this vicious criminal spree is either unknown or undisclosed, but from the sound of it there must have been some form of intended home invasion robbery.  I can't explain VA's penal code but down here in Florida, under facts such as these, Andrew and Alicia would surely have been charged with Attempted Felony Murder, Armed Home Invasion, Armed Robbery, Armed Burglary, and a host of other "PBL" (punishable by life) offenses.  

So, here's what happened post facto:  The cops stopped the get-away vehicle, found Alicia behind the wheel (ergo her charges of "obstruction of justice without force and eluding or disregarding police"), they found Andrew in the passenger seat "naked, except for a diaper" and they discovered Andrew's "blood soaked clothes" and a "bloody knife" in the back seat.  The couple were (obviously) arrested and booked, and both were denied bond.  However, Alicia's lawyers have now asked for bond claiming that her husband "made" her drive the car and that she had no idea what he was doing. Sadly for Alicia, but as a plus to society and the VA legal system A) the Judge was not, and B) the Judge did not believe that Alicia was...

I don't presume to know what happened here, although were I a betting man, then I'd say that this was either some form of home invasion robbery or a deranged revenge plot.

Regardless, there is a lesson to be learned for the Folks, and it deals with a few ethical issues relative to client representation in criminal cases.  The first issue deals with "confidentiality" (in Florida, Rule 4-1.6 of the R.R.F.B. - Rules Regulating the Florida Bar) and the second deals with "conflicts of interest" (Rule 4-1.7).  

Many times multiple folks get arrested fore the same crime.  In these instances they are called "Co-Defendants", and such cases can prove ethically challenging.  While one lawyer can represent multiple defendants in a given case, it is generally frowned upon, as the potential for a conflict of interest is inherent where there is dual representation.  Take this case for instance:  A husband and wife team, jointly arrested, both facing serious charges... Can they share a common lawyer?  Should they?  

The only time that this works is where the co-defendant's are truly "on the same page", soup to nuts, standing behind one another, in silent agreement, and this usually happens only where the stakes are low (i.e. in less serious cases).  But even in these rare instances the potential for conflict exists, and by not having independent counsel everyone is skating on thin ice.

When I am asked to represent multiple defendants I almost always decline, requiring all defendants to retain their own counsel.  I will work in tandem with co-counsel, and will happily enter into a "joint defense agreement", whereby participating defendants intend to share equally in all aspects of defense preparation ( i,.e. depositions are taken jointly, costs are split evenly, motions are prepared and filed together, etc), but when I do so it is done by written agreement, signed off on by all parties (clients and lawyers alike), together with a written "Waiver of Confidentiality" and a written "Acknowledgment of Potential for Conflict of Interest".  Only after all of this is clearly discussed, agreed upon and pen is out to paper will everyone be protected.  Why?  Because there is only one guarantee in litigation (and in life), and that is that anything can happen.

Here Alicia is not, or is no longer anyhow, standing by her man, and that is exactly, precisely my point.

Although co-defendants may start out with complete intention of supporting one another, for a variety of reasons things do not always end up that way.  Sometimes the State incentivizes one defendant to testify against another (by way of agreeing to a reduced sentence or even immunity), other times one person, for any of a incalculable number of reasons, simply has a change of heart.  Whatever the case, it is almost always bad form to have one lawyer represent multiple defendants in the same case. When it comes to criminal court, help your friends if you can but always look out for yourself  and beware of the potential for conflicts of interest.

Established in 1991, Michael A. Haber, P.A. has an unblemished record of providing creative, effective and zealous representation to clients, primarily in South Florida, on a wide variety of criminal matters ranging from DUI to drug trafficking and from misdemeanors to first degree murder. 

At Michael A. Haber, P.A. "Its all about reasonable doubt"!

Michael A. Haber, Esq. is prepared to speak with you about your case!

1-888-SHARK-8-1, 305-381-8686, 305-798-2220, **ARRESTED, **305DUI, **MIAMIDUI, **MIAMILAW or **HABERLAW.

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