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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1627
Experience:  Experienced and knowledgeable criminal defense attorney.
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I'm having a problem with my red attorney and it's

Customer Question

I'm having a problem with my hired attorney and it's causing me a crippling amount of stress. When I had a consultation with him before hiring (one of 5 consultations I had with various lawyers) I hired him primarily for the reason that his strategy for my domestic battery case, which I'm accused of, was to create a very strong affidavit of non-prosecution signed by the alleged victim with her cooperation, which would "create overwhelming inconsistencies with the police report." The alleged victim has been extremely cooperative and willing to basically sign whatever she needs to keep me out of jail and prevent this case from getting filed at all. The affidavit that he drafted up yesterday has created virtually no inconsistencies with the police report. It was basically a bland statement that the alleged victim did not want to prosecute with one additional statement about me being "good-natured" and about her being an "alcoholic." There was nothing that mentioned her being intoxicated at the time. Now, my wife, the alleged victim saw just how deathly stressed I was over this last night, barely being able to sleep and not being able to get out of bed this morning until now, almost 1 PM, and she woke me with a new affidavit that she hand wrote herself, which included statements that she suffers from "bipolar disorder," which is true and that she is often and easily "confused and easily scared and paranoid." She goes on to say that she "believes at times I cannot easily tell between reality and confused thoughts" and that she is now "seeking out the help through medication and rehabilitation." She closes with saying that "through counseling and healing all of this will guide me into goodness and sobriety."1) Please tell me if you believe that my lawyer has been negligent up to this point. I have a suspicion, because of the way the retainer of payment was spelled out, that he is trying to make this go to trial so that he can procure another $2,500 from me in addition to the $4000 I've already paid him.2) Also, I would like to know if you believe this new affidavit that my wife drafted up will have a significantly greater impact.Thank you very much in advance.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 11 months ago.

Thank you for the opportunity to assist you.

Q) Please tell me if you believe that my lawyer has been negligent up to this point.

Perhaps. He was supposed to draft the affidavit in a certain way to help you convey facts to the prosecutor in an effort to get the charges dropped without going to trial. He failed to fully develop the facts in the affidavit so that it would have maximum potential for convincing the prosecutor of your position. That was probably careless on his part, which is part of the definition of negligence.

Have you called the attorney and talked to him about this? i.e. Asked, "What happened to the affidavit we talked about? You said you'd include facts X, Y, and Z!" Tell him about the issues your wife has brought up (bi-polar, perception issues, paranoia, confusion, etc.) and show him the new affidavit. Hopefully that will solve the problem and the attorney will get the affidavit fixed up for you.

Q) I would like to know if you believe this new affidavit that my wife drafted up will have a significantly greater impact.

It sounds like the second affidavit you've done will have more impact, yes. It's more than just, "Oh this was an accident ... a one time thing ... he's a swell guy..." etc.

Keep in mind that the prosecutor can still take this case to trial if he believes there is probable cause to believe you committed a crime. I'm assuming that your wife said things to the police at the time of the alleged domestic assault which caused them to believe you committed a crime. Now, later on, she's realized she may have been wrong and it may not have happened the way she remembered or believed.

However, when a witness or victim makes contradictory statements, that's an issue at trial for the judge or jury to determine when or if the witness was telling the truth. If I were the prosecutor I'd certainly look at the affidavit and say, "Well, my case is sunk." But some prosecutors will not do that. They will simply stick with what the alleged victim said at or near the time of the alleged offense and go to trial with that.

I'm not trying to be negative, I just want to warn you of this possibility.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. I'll get back to you as quickly as I can, although I may not be online at the moment you respond. Otherwise, I hope you will rate my answer positively as that is the ONLY way I receive credit for my work, and doing so will NOT cost you an additional fee.

Best wishes to you,
Shuband