Defending Pepper Spray Use – Pt. 2
An Interview with Attorney Penny Dean
Interview by Gila Hayes
Readers may recall that our April 2018 edition of this online journal told the first half of a story about New Hampshire Attorney Penny Dean’s defense of a Network member charged with assault and battery after self defense with pepper spray to prevent being choked into unconsciousness. If you missed the first part of this instructive interview, read it at https://armedcitizensnetwork.org/defending-pepper-spray-use, then enjoy the conclusion here.
During our interview, Attorney Dean has been intensely interested in feedback from Network members who had unanswered questions remaining after reading this report. A reader question arising repeatedly last month indicated that members were more than willing to develop the personal résumé Dean said was needed to prepare for a bail hearing and craft the rest of the legal defense, but readers asked what data they should provide. Before delving into the second half of this story, let’s wrap up that piece of unfinished business with Penny Dean’s answer to that question.
“Think of it as a cradle-to-now biography. Give details so that knowing the particulars of client case, the attorney can pick and choose what they think is useful. The attorney needs to know where were you born (city, county, state) and how does that shape you? What type of family did you have–how many brothers and sisters and birth order. How close is your family? What was your family members’ education level?
“All of this plays into a geographic history: at what place city/town/state did you live at each stage of your life? Where did you go to school and what was your life like? Did you play sports or take part in other activities in school? What was family life like? Did you do volunteer work or extracurricular activities in college?
“Are you married now? How long? Do you have kids? Have you ever been divorced? I want to know if you have a spouse and kids, I need to know all the bad facts about them. Do not even think that I won’t find out, because if you don’t tell me, I will learn about the bad secrets at the moment in court that will hurt you the worst and I will be caught flat footed. Remember, I get to go home tonight, do you?
“What do you do every day? Work history? Do you have a passport? Have you traveled internationally? If so, when? Where? What are your hobbies and interests? Do you have any medical issues?
“I also need several additional, separate documents for my use, as well. I want a résumé that is good enough that you would send it to an employer. I want a chronological list of addresses where you have lived–cradle to grave, and yes, I am serious. I want to SEE the person in my mind from these bios. This blends into a résumé; I want to connect them. I have to be able to answer any question. You want to try for pretrial release with minimum money and minimum conditions. Yes, I need to know it all, so I can fire back at a millisecond’s notice to advocate for reasonable bail.
“I also need to know how much money–cash, paper folding money–can you raise if necessary NOW? Can you prove where the money came from? (I don’t want to face a source-of-funds hearing so do not even try to “stack” family withdrawals of less than 10k now. Read more at https://www.irs.gov/businesses/small-businesses-self-employed/form-8300-and-reporting-cash-payments-of-over-10000 and https://www.irs.gov/pub/irs-pdf/f8300.pdf. If you try that, thinking you won’t have to report it, you will make my job much worse.)”
And now back to our story: When we closed the first segment last month, Attorney Dean had filed many
requests for various pieces of information about our member’s arrest, and was knee-deep in court hearings. She had obtained copies of the two calls for help our member made to 9-1-1, as well as the attacker’s 9-1-1 call after being exposed to pepper spray. Now, we return to our conversation with the attorney about additional steps she took, leading to the eventual dismissal of criminal charges against our member and why those efforts yielded the desired result.
eJournal: Moving beyond 9-1-1 recordings, you also requested a number of medical documents and law enforcement personnel records to gather information needed to defend our member. When I saw the documents request list, I wondered why those weren’t protected by privacy laws. Aren’t you denied access to certain private records?
Dean: I am allowed those records in order to present all favorable proof, as the Constitution allows me to do, and to provide effective assistance of counsel.
The prosecution had to prove that there was some sort of injury to the alleged “victim” and the hospital’s records were the best evidence. We wanted to know whether or not the person who claimed to be injured was injured. Sometimes, a patient who doesn’t understand that we are going to get these records, may make flip comments about not being hurt or brag, “I did this to that person.” Who knows what they’ll say? Sometimes it is amazing!
I tell my clients to tell medical professionals only the information they need to treat you. They do not need to know things that have absolutely nothing to do with your medical treatment, like whether you were shot with a gun held in the left hand or the right hand. We have no reason to believe the doctors and nurses at the hospital have any connection to either party, but sometimes medical professionals do act as agents of the police, so from the first you have to presume that every word that comes out of your mouth will be used against you. Therefore, I tell people that I do not want one word other than, “This is where I was shot.”
At the same time, you also need to be very descriptive: “This other person hit me in the left eye; look at my left eye and take pictures. My left eye hurts.” That helps us in our claim of self defense. “The other person assaulted me: this is what they did. I sought medical attention for this injury. Here are the pictures of it. This is the evidence.”
In our case, other than our pepper spray expert’s report, the most powerful thing that got the court to dismiss the charges against the member was the fact that we had pictures. I had instructed the client to take pictures of the bruises every few days. The member promptly sought medical attention and took pictures the day of the incident and the day after the incident, and at intervals after that, so in our first pleading, I immediately raised the affirmative defense of self defense.
eJournal: I was impressed that our member went to the hospital after being released from jail. Seems to me it would be natural to seek medical care immediately after being attacked and injured. But if you are arrested, hours and hours might pass before you can have a doctor evaluate and document your injuries. I am afraid that in the time lapse between the fight and being released, a lot of people might just rush home and skip medical evaluation.
Dean: Actually, my client asked for medical treatment immediately and while incarcerated, but was told if taken to the hospital, the bail commissioner’s Friday session would be missed and the option to post bail would be unavailable until Monday, since that official doesn’t work on the weekend. My client declined, not wanting to stay there until Monday morning and you couldn’t blame anyone for making that choice.
eJournal: You need the weekend to get squared away with a lawyer so that you don’t have to go to the arraignment Monday without a lawyer or with court-assigned counsel.
Dean: My client was so stressed and so scared, as would be true of most people, so only the next day, after being released, did my client think, “Wait a minute. I am a member of Armed Citizens’ Network. I have help available.”
eJournal: I am afraid many armed citizens don’t plan in advance and don’t prepare their family or close associates to know whom to call. I know if I have to defend myself, I want my loved ones to call my attorney and say, “Hey, the police took Gila away. Please come help us!”
Dean: In addition someone needs to figure out where you were last so your lawyer can get an investigator to the scene to figure out why this happened. You would want two things: you’d want us to come and try to get you out, but you would be willing to sit there an extra three or four hours and let us spend our time at the scene gathering evidence which may help you later.
eJournal: Absolutely, and for myself because I live very rurally, I’m resigned to sitting silently until the attorney I want can travel the distance.
Dean: Therefore, you have decided that you want it done well, more than you want it done fast. I tell people, you can have it “good” or you can have it quickly. You can’t have both. The people you trust may have to do a couple of things before getting you out. A friend of mine told me, “I knew you would come and get me out, so I just sat here and tried to take a nap. I wasn’t going to go anywhere, so I just waited.”
eJournal: It is out of my hands at that point and if I’ve made advance preparations, now my job is to sit, wait and not talk to other prisoners.
Dean: In this case, my client was alert to that risk. You have to know that you are going to get put with the drunks and druggies. You must not speak to them! Many booking areas have only video with NO audio recording. If someone is trying to engage you, they may be “frequently flyers” who have been there many times before. They know if they can get something on someone, they can use it to get a better deal.
Sometimes, all we are going to have is the video. If someone sees video of you engaging with the other person, they are going to say you said something you did not. The only way to fight that is to have video of you just nodding with your lips pressed together. That is more likely to be believed!
Be prepared for other people you know to ask you what happened. For example, in our case, there were tons of people in the area who would ask, “What happened here?” I said, “You have got to zip your mouth. Tell them your lawyer said you can’t say anything and she’s so scary that you can’t talk.” I tell clients to put the blame on me. I am always happy to take it.
eJournal: I sympathize with wanting to explain why you defended yourself. If you just refuse to answer, the suspicion against you may grow.
Dean: I give the client a way to say something that appears to be rational. They can say, “Look, this lawyer won’t let me talk to anyone. She says it can be risky; that we are still sorting things out. It might look like I’m lying because of the way the game of ‘telephone’ can twist things I might say.”
eJournal: There was another part of our member’s situation that you mentioned—inaccurate, incomplete and in your words, “sloppy” incident reports by responding officers. As the attorney who has to show a court what actually did happen, how can you fill in the lost truths?
Dean: You first look for logical conclusions. Before trial I send my investigator to interview the police officers, as I did in this case. He went to the police station and tried to interview two of the officers involved. Sometimes, investigators will even go to officers’ homes.
eJournal: You may get a different interview depending on whether your fellow officers know you are talking to a PI.
Dean: That’s exactly why I do it. I think in this case, by getting what little we got, we still got a lot. I thought it was a good use of money. Sometimes a private pay client will complain, “You sent an investigator out ten times!” and I’ll say, “Yes, and we got eight dry holes. If we knew which two holes contained information, we would not have sent him to the other eight.” I don’t know until I send the investigator out there. We are paying a lot of money for him to go to places that have no help for us. We cannot always predict where the information will be found.
eJournal: Are there other professionals you use besides the PI to look through the reams of documents to identify what you need to know to defend a case?
Dean: You may laugh, but sometimes I ask a nurse or therapist or an accountant to go through the files and I ask them, “What am I missing?” I’m not a registered nurse; I’m not a CPA, but I am smart enough to know what I don’t know. I know that I have to do something to find out what I don’t know. I am very, very fortunate that there are many, many senior members of the firearms community who are generous with their time. I call them up and I say, “If I had ‘this,’ what do you think was happening here? If I had ‘that’ what would you think had happened?” They help me out! They say, “OK, this is what I think.” They help me out because they know that I am working for the good of the firearms community, and they know that some day they may need my help.
eJournal: Last month you mentioned the run around you got due to frequent reassignments of our case to new prosecutors. Did the judges change, too?
Dean: Yes, until the end of this case, we seemed to have the judge du jour; we rarely saw the same one twice until the end of the case. Thankfully, we finally drew a wise, fair, seasoned litigator of a judge who basically said, “Why is this case in my court? And why are YOU, Attorney Dean, in my court?”
eJournal: I don’t understand why he was challenging you.
Dean: Because I was driving several hours each way, the judge asked me tongue in cheek if there weren’t any lawyers in this neighborhood so the client had to bring me in from many hours away at great expense. I told the judge the client liked me and my skills and chose to have me travel as was the client’s right. Judges will sometimes be prickly, knowing how much travel can cost a client, as well as “taking work from the local lawyers.” I always smile and try to make a joke and explain to the judge that there really is more to this “self defense” thing than meets the eye and the client believes I am qualified and feels comfortable with me.
eJournal: How tight was the timeline? Were you pressured to go to trial?
Dean: In the state in which this case occurred, trial dates are not set until all pretrial is complete, so there was never really a true trial date set. The timeline was IF pretrial is completed by date X, trial will be on date Y, but in this case, pretrial was never completed.
Courts have random timelines and I fight with courts all of the time when I want more time to prepare better. This court wanted to set a date two to four months out. I said no, I wanted further pretrial dates to make sure I was prepared and to have time to be sure the government had given me all of the evidence and information to which I was entitled.
eJournal: As you prepare to go to trial, what other personnel do you need to hire to ensure that better preparation?
Dean: Like we’ve discussed, you need a very good PI, but you also need a self-defense expert. In some states you better bring your own stenographer, which can cost up to $1,500 a day since the state’s record of the trial cannot be relied upon to be an audible record and you may need the written record to appeal certain rulings.
eJournal: Why did you hire Emanuel Kapelsohn as an expert?
Dean: First off, to go into a case of self defense without an expert is suicide. Period. I called Massad Ayoob, as I have used him in the past with great results, but Massad said he was no longer doing expert work on pepper spray cases and said Manny Kapelsohn would be best for this case.
eJournal: In what ways did this expert contribute to preparing for trial?
Dean: A good expert educates the attorney when necessary and acts as a second set of eyes and as a sounding board. To not have an expert in a self-defense case is, in my opinion, legal malpractice and suicide. I have been privileged to work with the best experts in the country, if not the world, in the area of judicious use of lethal force and sometimes not-so-lethal force–Massad Ayoob and Manny Kapelsohn. From an attorney’s perspective, working with a seasoned professional expert witness is a joy and an education. Each time I learn from them.
I remember one time I was representing a man charged with felony level criminal threatening (which is what one is likely to be charged with in a self-defense case of brandishing or displaying a firearm to ward off an attacker), when what I call my “knower” or gut told me the client was withholding some information in the matter. This was not necessarily about the event, but information that the client knew darned well would impact the case. During a meeting between Massad, that client and myself, I expressed my concerns that information was being withheld. Massad instantly boomed (in his made-for-radio voice), “If you ever lie to her, I walk!” Well, that sure got that client’s attention and the client told me certain things that impacted my analysis of the case. It turned out it was three things, just as I had “known.”
In our pepper spray case, as per my standard operating procedure I provided Manny with everything in my file, as well as my own perceptions, because I make it a practice to never withhold anything from my experts. I do not want them to be surprised while testifying and I want an honest and trusting relationship with the expert. The truth is what allows an expert to do his job.
Manny also interviewed the client. I found Manny’s questions thoughtful, showing that he clearly had read all of the file materials I had sent to him and mastered the facts and issues of the case. Trust me, that is not always so with experts. As is typical, at the end of the interview I asked the client to expound on particular issues. I wanted every bit of information to come directly from the client to Manny for several reasons, first the lawyer never wants to become a witness in her own case, and next I always want my expert to be able to testify that they learned all factual information from the client.
As a result, the value of the expert report that Manny wrote cannot be overstated. It explains in layman’s terms what the client did and why, but furthermore gives expert and rational justification for those actions. This report provides rationale for the client’s actions, based on Manny’s hundreds of cases and decades of experience. It educates the prosecution as to why the client was wrongly charged, but it also puts the prosecutor on notice that this is what we intend to tell the jury. The report also essentially negates any crazy ideas that people who know nothing about self defense say. For example, in firearms cases people say, “Well, why didn’t he just shoot the gun out of his hand?”
Most people do not understand that, with certain exceptions, “fact witnesses” may only testify before the jury as to what they heard, saw, felt, smelled, etc. Only those qualified by specialized education, training or experience and disclosed to the prosecution as “expert” witnesses are allowed to explain to the jury WHY something happened, or to give their opinion about what actions were justified and why or what might have happened had different choices been made.
Manny’s knowledge and experience with pepper spray cannot be overstated. As an added bonus he is a real trooper. Manny purchased the same brand and type of pepper spray from the same source from which the client had purchased the pepper spray used in this case. He prepared a video exhibit in which he was sprayed with the same brand and type of pepper spray used in this instance to show that effects of the pepper spray had been greatly exaggerated by the alleged victim.
Manny, who is also a licensed attorney, has a 57 page curriculum vitae (CV) that is chock full of impressive qualifications. He went to the area the event had occurred, of course, and took copious notes and photographs in order to prepare his expert report. No matter how good the photographs or the floor plan, there is no replacement for literally walking the path of the accused. There are many things that can be missed if a site review is not done.
As an expert witness, Manny would be able to show the jury that the pepper spray the client used to ward off an attack was not as disabling as the alleged victim claimed and that given the disparity in age, size and weight of the alleged victim and the client who is older, smaller and lighter, the client had no other choice but to use the pepper spray. In light of previous martial arts experience pepper spray was less force than the client might have used. Manny laid out all of this and why the client was justified in the choices made in a 40-page report. The report also gave Manny’s specific qualifications to opine on each portion of the case for which he was explaining what occurred.
In short, this report alone could make a prosecutor rethink a prosecution. It would show the client’s actions were justified and that the client should not have been charged. It also shows the prosecutor what he/she will have to go up against and makes them think where in the world are we going to find someone with equal credentials to testify against this expert at trial? (Spoiler alert: I do not think there is one.)
eJournal: Although I expect you were disappointed when Massad Ayoob turned down the expert witness work, I do believe that his recommendation that you reach out to Emanuel Kapelsohn was perfect.
Dean: Marty Hayes had also suggested that Manny would be a great fit for this case. It turned out that “great fit” is a British-style understatement. Manny is not cheap, but worth every penny he charged and much more. Manny is bigger than life with unbelievable credentials, knowledge and humility: a consummate professional. What is most notable here is Armed Citizens’ Legal Defense Network was paying and not only did Marty NOT try to steer me to someone cheaper,
Marty thought I made a great choice for my client and never once did he mention the expense of using an expert of Manny’s caliber.
eJournal: In your experience as a criminal defense attorney of many years’ experience, have you defended other clients for whom an entity, not the client, funded your work efforts? Was that an unusual experience for you and your law firm?
Dean: Not really but sort of. I have many cases where friends and family members pay the legal bills and sign my fee agreement to be legally obligated to do so. I explain that just because the mom pays a son’s legal bills, that does not mean she gets detailed invoices so that she “knows what is going on.” She agrees to pay me and agrees that I tell her nothing other than what the son instructs me to tell her. But I have never been paid for a client’s defense by an “entity.”
I did something on this case that I typically will not do: I took a case without the full retainer in hand. I do not “invoice” clients, I get cash up front. In the case of the Armed Citizens’ Network, I obtained advances and when I ran out (or knew I would be running out), I told the Network how much more I needed. I did that because of my trust of Marty and Gila Hayes and their word. They never broke my trust.
I have nothing but great–not just good, great–things to say about Armed Citizens’ Network in this regard. Marty told me he never wanted to see a client plead guilty simply because they could not afford an adequate defense. Never did Marty or Gila question my invoices but rather said, “Thank you for taking care of our member.” Never was I told there was a formula whereby this case should cost X and it should take X hours per month for each task. Marty did ask reasonable questions about estimates of case costs, and each time using many lawyer weasel words, I gave him my estimate, explaining that sometimes cases can blow up much bigger than expected.
I handled this case as I would for any private pay client. My charges were not questioned, my choice of experts and their charges were not second-guessed; the Network simply paid the bills. I do not claim to be the cheapest attorney as I believe in bringing in other professionals and that costs money.
I cannot say enough good about Armed Citizens’ Network. Over the years, many organizations and various types of membership groups and prepaid legal services have approached me. I have refused virtually all of them. First, they want me to invoice them, and that is not happening! Cash up front or no work! Next, the others have formulas about how much time I should spend for every task, how much I may spend on experts, and the others have third party administrators to “check” my work. This would not result in the type of legal services I would want if my freedom were on the line!
eJournal: Thank you for commenting on how it worked from your side, Penny. We never, ever heard anything but satisfaction from the member about your efforts. Getting back to our story, let’s go to the point where you’ve communicated to the prosecution some unsavory details you were learning about the assailant. What response did you receive?
Dean: Initially, it was the typical cocky prosecution retort, “We’ll let the jury decide that.” Well, that is not good for justice or for the client! Many innocent men and women have heard a single word verdict: “Guilty.”
A good judge helps so much! When we finally got the experienced litigator judge, he saw me doing lots of work and he clearly saw that a plea was not going to happen. The judge logically asked, “What’s up?” I told the court, “Do you think this client hired me to travel all these hours and do all this work because the client thinks they are guilty and going to plead? Look at this case, look at these facts!” The judge did that and then, in so many words, asked the prosecutor, “Is this the hill you want to die on?” Good judges can lean on both sides to make them face reality and avoid waste of court time and keep the defendant from unfairly being tried and going through a trial that is senseless based on the facts.
eJournal: What did you communicate that got the charges dropped?
Dean: I showed them that the alleged “victim” had really big Fifth Amendment issues of his own and that he needed court-appointed counsel pretrial to see if he was going to risk testifying.
As we discussed, when released from jail, my client immediately went to the hospital. We had that hospital report, and the client had taken pictures of the injuries at regular intervals after that. I brought these to the
government and said, “I have said all along my client is the victim and should never have been charged. See? My client is injured, too, and I think you should charge the alleged ‘victim’ with assault.”
I said, “When we go to trial, if the alleged ‘victim’ admits to certain facts or takes the Fifth and refuses to testify, you will have to dismiss this case against my client. If the alleged ‘victim’ admits what he did to my client, you should charge him with assault. If that happens, we will have all wasted lots of time and tens of thousands of trial dollars! Why not have a pretrial hearing now and, because his lawyer cannot be the prosecutor, get a court-appointed lawyer for the alleged ‘victim.’” The judge we drew at the end, the experienced litigator, not only suggested this, but supported the idea of a pretrial determination!
We needed to see what the alleged “victim” was going to choose. And this is what happened: right there in court, the “victim” chose to assert his Fifth Amendment rights in a hot second and the case was dismissed. The good trial judge was instrumental in this happening. The prosecution was ready to say that the government cannot proceed, so the judge dismissed the case on the spot.
eJournal: But the legal wrangling was not over yet, was it? Even after the court dismissed the charges, you continued working, implementing precautions to prevent the arrest from haunting our member later–be that impingement of the right to buy, carry or possess firearms or other freedoms that an arrest record could ruin. Why do you routinely obtain court certified copies of the dismissal after charges are dropped?
Dean: I obtained certified copies of every court filing. I also obtained copies of the final court audio dismissing the charges because as time goes by, humans make mistakes. Courts get rid of paper files and scan them. They have young, inexperienced staff doing data entry of old files and then shredding them. It is very easy for the person doing data entry to put an X in the “Guilty” box instead of the “Not Guilty” box. If that happens, after the files are shredded, the official court record shows a felony conviction!
Other times, someone with the same name as you, whose file is next to yours, has their conviction entered under your name and date of birth. The court automatically transmits the information to the local state police and the state police transmit the information to the FBI. If that happens, you now have a felony conviction on your record because the dismissal was incorrectly checked “Convicted.” When you go to purchase a firearm, the background check comes back denied.
You may have to hire an attorney and spend thousand of dollars to find out why you were denied, but like many people, you think of your family expenses and think, “Maybe I will wait.” Meanwhile, the denial has triggered an ATF investigation because supposedly a convicted felon tried to buy a gun. Local police are called and depending on how ambitious they are, they may come to your home and arrest you as a felon trying to purchase a firearm.
Other times, at the worst possible timing during a standard motor vehicle stop, they put out a bench warrant and arrest you and tow your car. When you ask why they are doing that, they tell you, “You know why!” Maybe you protest that you had those charges dismissed, but the cops say, “Sure you did! Tell it to the judge.” So you say, “Here–I can show you the papers. I have saved some that the lawyer gave me throughout the case,” but if they are just photocopies, not certified copies from the court, the papers you kept are worthless.
So the court says, “Let me get this right–you think the trial court had some sort of vendetta or conspiracy against you? The official court record says ‘conviction,’ why would they lie? The state police record says ‘conviction.’ The FBI record says ‘conviction.’” So you say, “Call my lawyer, she was there!” This, of course, assumes your lawyer is still alive, still in the area or can be easily located. Even then, the court wants records, not your lawyer’s words.
Instead, imagine that you can say, “Oh, but I have a court-certified transcript of the dismissal and court-certified files of everything in the case.” Now, they have egg on their face, so they say, “Surely there must be a mistake…Oh! You have certified copies? Let me see them! We’ll get to the bottom of this!”
The certified copies are more precious than diamonds and should be treated as such–I hope you kept them in a fireproof safe! Others might have said you did not need court-certified copies and had wasted your money. Some lawyers say, “What you’re trying to prevent only happens to one person in a thousand.” I say, “That’s right, but if you are the one it happens to, how important is that to you?” It happens rarely, but when it does, it is cataclysmic for the client and you could have prevented it for $500-$1,000.
To anyone who says they’ll wait to get certified copies, I say, “You are going to bet your freedom and your life and a whole bunch of inconvenience, that somebody at the courthouse isn’t going to shred that file early, before you decide to get the certified copies?” I do not think that is a good bet. I would not bet that way. You just don’t know.
eJournal: I’ve come to understand that many, myself included, have incorrectly thought that the aftermath is shorter than reality proves. After a critical incident, the aftermath is present to one degree or another for the rest of the survivor’s life.
Dean: I’ve learned some interesting things from past clients. I told one, “You have a lot of acquaintances, and you have a lot of business associates, but very few true friends. People also have sunny-day friends, who the minute something goes wrong, will act like they do not know your name.” I told that client, “You are going to find that out in this case.” You will learn whom you can rely upon. You also have to plan ahead and have extra money put away in case you lose your job after an incident.
eJournal: Evaluating competing plans, potential members sometimes ask if we, too, pay for their days in court. Our answer is no, since we place the highest priority on funding the legal defense expenses. I view the $500 a day for every day in court as a distractionary sales device to take the attention away from just how little some competitors provide up front for attorneys, experts, investigators and other critical team members to keep the member out of jail.
But here’s an idea: since Network dues are much lower than traditional insurance-backed programs, our members should bank the savings in an investment account as protection against the bigger problem of losing a job, as you have identified.
Dean: The self-defense insurance options won’t cover you for loss of a job, either, only for days in court. I am talking about a total job loss. You cannot insure against loss of employment because there are all levels of earnings, from the guy making $20 an hour to the guy who makes $5,000,000 a year. I have always believed that people should keep their financial house in order so they are less likely to make bad plea decisions. Sometimes people think, “I will just plead guilty to this it will be over and I can move on.” You can never move on! I’m sorry to say, a plea will follow you all the days of your life.
eJournal: And the financial aspect is only one part of the aftermath.
Dean: You should never underestimate the level of bitterness that clients are going to have afterwards. They are going to be bitter about this whole thing and sad, too.
eJournal: Well, the bitterness can come from many sides. In addition, let us remind readers that bitterness that can come from a plaintiff whose false claim that you hurt him has been thwarted. That is why we have exercised such caution in this discussion to shield our member’s identity. It is my belief that our member, who kindly allowed us to talk about this case, has exercised a very smart, reasonable caution in requesting that we not give details that could lead to identification. I believe the member remains rightly concerned about civil litigation and employment issues.
Dean: I think so, too. Even when you have done nothing wrong, an arrest leaves a stain, and there will always be people who say, “I bet you were guilty but you just got a fancy attorney.” That is really unfortunate, but that is how the public thinks.
eJournal: I am frequently pestered by “shoppers” who say they have no intention of joining without being able to talk to people who have received membership benefits. It is my unfortunate responsibility to help folks understand the incredible privacy concerns attached to each of the 17 member-involved incidents. Besides, I can’t imagine letting a curious stranger rip the scab off a member’s recently healed emotional wound just so that we could sell one more Network membership.
If the member wants to tell his or her story, then we approach it as we did in the January 2016 edition of this journal, but usually, I will not bother members who are trying to heal up and get their lives back on an even keel. That takes time.
Dean: I respected how long it was taking to get the chance to talk about this case, but having said that, I also thought that we owed something back to Network members, who can learn from what happened. What this member, my client, went through was really bad. If we can, we would like to prevent some other person from going through that, or at least we would like to alleviate their pain. I don’t know if we are going to accomplish that. I don’t claim to know what the right answer is, but I do know that we have to do the best we can.
eJournal: We adhere to the Hippocratic oath, “First, do no harm,” and that means balancing education against privacy in this situation. I hope we have accomplished that and I really do appreciate your help on this article.
Dean: I am always happy to help, if we can make it better for someone else.
Attorney Penny Dean is a well-known name in Northeast U.S. gun rights litigation, and has been a Network affiliated attorney since 2008. She practices law in NH, ME and MA and is admitted to all federal and state courts in those states as well as the First Circuit Court of Appeals, the United States Supreme Court and the D.C. Circuit. In addition to her busy law practice, Penny is a frequent media consultant on gun rights and firearms issues, and is well known by students of firearms courses at which she teaches the legal segments of the instruction. Enjoy her blog posts at http://www.pennydean.org.
To read more of this month's journal, please click here.