Book Review: Heinous, Atrocious & Cruel

Heinous, Atrocious & Cruel: The Casebook of a Death Penalty Attorney
By Terrence M. Lenamon with Brooke Terpening



I found out about this book at a seminar that I attended for trial lawyers in the fall of 2017. Terence Lenamon was one of our speakers, and had such powerful stories to tell about his work that I knew that I needed to buy his book. I picked this up on Kindle, and made a point to read only one chapter in a sitting so that I could really think about each of the stories. Each chapter is a story of Terence's interactions with former clients who were charged with murder and facing the death penalty. It was equal parts heartbreaking (for the victims of the crimes and for the defendants), and inspiring (in reminding me that clients are real people with real life stories and circumstances that have to be considered). I recommend this for lawyers and non-lawyers alike.

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What to do and know before your first meeting with a lawyer

Meeting with lawyers is often something that makes people anxious. I thought it would be helpful if I put together some tips for those meeting with a lawyer for the first time, based on my experience in working with clients. Some are dos and don'ts from meetings that have gone well or gone very poorly. Hope that you find them helpful.

1. Remember that lawyers are just people. There's no reason to be anxious or intimidated. We're here to help try to help you.

2. Schedule an appointment. Lawyers aren't Burger King. You don't get to just walk in and meet with a lawyer. Attorneys have other hearings and meetings, and projects to work on. Schedule an appointment so that you have the lawyer's full attention.

3. Know how long your appointment is scheduled for, so that you can be respectful of the attorney's time and other commitments.

4. Be on-time for your appointment. Again this is a way to be respectful of the attorney's time and other commitments.

5. If you can't make it to your appointment, or have hired another attorney, call and let the staff know that you are cancelling. Don't just no-show. It's rude.

6. If you think that documents, e-mails, text messages, photos, or anything similar are important to your case (or might be), bring them with you.

7. If there are particular people who know something about your case, bring their contact information (name, address, telephone number) with you, so that the attorney can get in touch if need be.

8. If your issue deals with a case already on file, bring the pleadings that you were served with. At a minimum, it is best if the attorney knows where the case is filed, and what the case number is.

9. Be respectful to attorneys and staff. Remember that we're all just people trying to do the best jobs that we can.

10. Don't be afraid to ask about the costs. But remember that attorneys may need to get some information from you about your case before they can set fees, retainers, etc.

11. If you don't understand what the lawyer means, say so and ask questions. Lawyers sometimes use jargon or terminology specific to an area of law, and may not realize that you don't understand.

12. Don't bring children, pets or other distractions to your appointment. Come ready to focus on the issue at hand

13. Remember that lawyers can't change the facts or the law. We can give you the best legal advice possible, and give you an idea of what you can expect. But we can't change the underlying facts or the law that applies to those facts, so we can't always give you what you want to hear.

What Happens if My Will Cannot be Located in Time?

I recently read a Nebraska Supreme Court decision, In Re Estate of Gilbert Fuchs, Deceased, 297 Neb. 667 (2017) in which Mr. Fuchs's will wasn't located until quite some time after he passed away. The Court had to decide what to do with this situation, and whether the will could even be probated.

Apparently Mr. Fuchs kept his paperwork in quite a state of disarray, with paperwork in vehicles, in totes, and all over his home. When vehicles would be sold, the buyers would package up all of the paperwork to be returned to Mr. Fuchs's Personal Representative.

The family was pretty sure that Mr. Fuchs had a will, but couldn't locate a copy after contacting local attorneys and the County Court (as Wills can be filed with the County Courts in Nebraska for safekeeping). Ultimately the Personal Representative, Mr. Fuchs's son, found the original will several months after he passed away, and several months after the probate proceedings had begun. This will differed substantially from how the law of intestacy distributed Mr. Fuchs's property. Unfortunately for Mr. Fuchs, and for his intended beneficiaries, the will was located too late. In Nebraska, the Uniform Probate Code requires that probate proceedings be commenced within 3 years of the date of death. Informal probate proceedings alleging that Mr. Fuchs died intestate (without a will) were begun shortly after his death. But a request to probate the will was commenced more than 3 years after his death. This subsequent request was denied as coming too late, and the Supreme Court upheld the lower court's finding.

It's an interesting case, but what does this mean for the rest of us? Well, it means that we need to make sure that our wills and other important paperwork is kept in a secure area, and that our loved ones know where this important paperwork is kept. Because if our loved ones cannot locate our will, then our wishes may not be carried out upon our deaths.

Oh No! My Loved One Was Arrested...What Do I Do?

This is a scenario that no one wants to find themselves in, but it unfortunately does happen. So your loved one is being/has been arrested, and you're trying to figure out what to do. Here are a few things to keep in mind and be aware of in the early stages of what appear to be likely criminal charges.

1. Don't interfere with law enforcement. If law enforcement is going to arrest someone, either on a warrant or because of conduct that they've been made aware of through an investigation, there is nothing that you can do to stop this. Don't hide a person that law enforcement is looking for, as that can be Obstructing a Peace Officer or Aiding and Abetting a Fugitive. Don't get in the middle of an arrest, as that can be Resisting Arrest or Obstructing. Let the arrest happen, and then deal with it after the fact. If you get in the middle of the situation, you can only make things worse, both for your loved one and for yourself.

2. Don't make statements to law enforcement, and advise your loved one not to either. I can't even tell you how many of my cases are proven largely by my client admitting to violations of the law, or by family members making statements that end up being harmful to my client. So the best course of action is to keep your mouth closed, and to advise your loved one being arrest to not make any statements either.

3. Hire an attorney as soon as possible. This should go without saying, but having an attorney involved at the earliest stages of a criminal case is important. Bond is set by the Court, and it's always helpful for the defendant to have an attorney to make a bond argument on his/her behalf. If there is no attorney involved, the defendant has to provide information to the Court directly, and could mistakenly make statements that can later be used against him/her. So the involvement of an attorney early on is important.

4. If the defendant can't afford an attorney, request a public defender as soon as possible. In most of the areas where I practice law, the public defenders are extremely qualified and excellent attorneys. So if a private attorney isn't in the cards financially, applying for the public defender is the next best option. And not delaying this application means that the public defender can begin working on the case as early as possible.

5. But don't think that a hired attorney or a PD can get a defendant out of jail in the middle of the night or on the weekend. In some low level cases, bonds are set by a schedule adopted in advance, so that people can post bonds and get out of jail right away. But for felonies or higher level misdemeanors, there aren't bond schedules. And it isn't required that defendants be brought before the Court for a bond setting until 48 hours. It simply isn't realistic to expect hired attorneys or PDs to be able to get defendants out of jail in the middle of the night or on weekends. Often we don't have the judge's cell phone number. And if we do, it won't do any good to make a call, as they're not going to set bond after a telephone call from one attorney. A hearing has to occur, where both the State and the defendant can make bond arguments. So don't expect middle of the night or weekend results. And don't buy into the hype from lawyers who tell you that they can achieve middle of the night or weekend results.

6. Be patient. I know that this is exactly the type of thing that people don't want to hear when their loved one has been arrested. But it's probably the single most important piece of advice. The wheels of justice turn slowly. Dismissals usually don't happen at the first hearing; and trials aren't immediate. It takes time to get discovery (police reports, photos, recordings, etc.) and plea offers. And it takes time for a criminal defense attorney to review this information and discuss it with a defendant. So even though it's terribly difficult, be patient.