08:18, June 27 57 0 abajournal.com

2019-06-27 08:18:06
Do people really try to take the rap for someone else’s criminal charges?

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History is cyclical. The longer I write this column on law and pop culture, the more I realize the same series seem to bring up legal issues that relate to the common practitioner, as well as your average person. It was over a year ago that I first wrote about Grey’s Anatomy and its cross-references between medicine and the law (in the context of prisoner organ donations).

Well, here we are again. The last two episodes of the series’ most recent season (one of my wife’s favorites) had an interesting legal twist to it, as well.

Spoiler alert! Everyone’s favorite physician, Dr. Meredith Grey, experiences yet another existential dilemma: A young immigrant living in the country illegally who’s seeking asylum is in desperate need of medical assistance. The girl and her father do not have any insurance, though, and Grey commits insurance fraud by using her own daughter’s name and information in place of the actual patient’s.

In the second-to-last episode, another doctor, Dr. Andrew DeLuca (who just so happens to be Grey’s current love interest), decides to play hero and take the fall for the insurance fraud allegations. He’s then arrested and hauled off to jail in the season finale. The finale prompted my wife to ask me how often those situations happen in actual practice.

When I first started working at the Oklahoma County public defender’s office as a licensed legal intern, I met a veteran attorney by the name of Mitch. Mitch still practices, traveling the state defending capital cases. When I first met him, I was assigned to assist with motion work for a death penalty client he was representing.

I don’t remember exactly how it came up, but I overheard him talking about the “SODDI Defense.” I had no idea what he was referring to. In fact, and I never told him this, I actually thought he was talking about the “Saudi Defense.” I immediately jumped in the conversation like the eager pup I was. I inquired about the defense and was quickly informed that it’s actually an acronym for “Some Other Dude Did It.”

The defense goes by many other names, as well, including the “third-party perpetrator” defense, the “third-party culpability” defense, and the “alternative perpetrator” defense. Regardless, that memory has stuck with me ever since, and the theory itself has proved valuable in my practice.

Law enforcement doesn’t always get the right person, and there are times when the best defense is showing that your client must be innocent because someone else is guilty. Still, most courts are skeptical of the defense, and it has received disfavored treatment across the country to varying degrees.

In Oklahoma where I practice, third-party perpetrator evidence is generally admissible so long as there is some “quantum of evidence” rising to more than simply suspicion and innuendo that a third party committed the crime. Nevertheless, it is not uncommon to see judges exclude this type of evidence from the defense.

One of the things I’ve noticed in contrast to the SODDI Defense is the “Patsy Problem” (I’m pretty sure I just coined that phrase). Whereas the SODDI Defense requires an indisposed individual, the Patsy Problem arises from a willing witness.

The Patsy Problem happens when a gullible individual is dumb enough (or devoted enough, depending on your perspective) to take the fall for another’s criminal wrongdoing. To many laypersons’ surprise, it happens all the time.

In my experience, the Patsy Problem often happens in relation to drugs or guns. I cannot count the number of times a client or potential client has put possession in question in a case. And sure enough, many times a person will come forward—speaking with me as a witness—and swear on their oath that they are the one to blame.

In regard to the Patsy Problem—as it relates to firearms—I’d wager the majority of cases involve a felon accused of “being in possession” of a firearm after conviction. Very often in these situations, a friend or family member will step forward and claim that the firearm is theirs, and they left it in the home or vehicle unbeknownst to the accused. When it comes to drugs, I see plenty of patsies claim the contraband when the accused is still on probation. Perhaps it’s just a coincidence.

Regardless, I firmly believe that many people who take the blame for another person’s crime are telling the truth. However, that cannot always be the case. There are no absolutes. So, as an attorney handling that situation, what do you do with that information?

If you find yourself in this position, you are likely a criminal defense attorney, and you know that the prosecution is already going to receive your defense with a bit of skepticism. How can you head off their arguments? More importantly, how do you make sure that you aren’t supporting potential perjury?

Truth be told, a lot of times it comes down to common sense. No matter how careful you are in choosing the clients you represent, it’s always possible that the Patsy Problem will rear its ugly head. When the situation arises, the first question to ask yourself is simply: Does this make sense?

Does the potential patsy’s explanation seem plausible? Sure, there are plenty of rational justifications for how a relatively small quantity of drugs or a handgun could have escaped the detection of an unknowing person merely in proximity of the contraband. Is it a firearm that was kept in another person’s vehicle that your client just so happened to be borrowing? That’s plausible. Is it an assault rifle in the back seat of your client’s car, titled and insured to them? You’re likely stretching at that point.

In my home state, defense attorneys have the ability (and the obligation) to speak with and interview witnesses. A potential patsy definitely fits that bill, and the only way you can gauge their admission is to listen to what they have to say. I try to meet with them in the presence of my private investigator, or if they are willing, I simply have my private investigator interview them and take their statement.

Using this method, I have an actual witness to the potential patsy’s disclosure. If they change their story, or if it comes to light that they lied, I have a professional to vouch for the circumstances of the statement and I have an individual who can provide impeachment testimony if necessary.

When I do decide to use a third party’s admission in my client’s defense, I ask them to fill out a sworn affidavit explaining the declaration. I make sure the affidavit is prefaced with the fact that I do not represent their interests, they are making the statement on their own free will, and they have every right to consult with their own attorney before filling out the affidavit.

Taking these steps shows you are doing your duty to avoid any appearance, or the possible inference, of impropriety. At the end of the day, the most valuable tool an attorney has is their reputation. I’m not merely referencing one’s reputation for results. I’m talking about our reputation among peers, those judges we practice in front of, and the administrative bodies that govern us.

As such, it’s imperative to proceed with the utmost caution when presenting a defense of this nature. Cross every “T” and dot every “I” to make sure you don’t fall victim to a lie.

Adam Banner

Adam R. Banner is the founder and lead attorney at the Law Offices of Adam R. Banner, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.