CCW Safe Podcast- Episode 49: Interview with Criminal Defense Attorney Andrea Luem

TRANSCRIPT:

Don West: Hi, I’m Don West, national trial counsel with CCW Safe. I’m here today with Andrea Luem, a criminal trial lawyer from Las Vegas, Nevada. Hi, Andrea. Welcome.

Andrea Luem: Hi, Don.

Don: Nice to see you.

Andrea: Good to see you.

Don: Andrea and CCW Safe have worked together on several occasions over the last few years. In fact, some of you may recognize Andrea from a featured attorney of the month, a couple of years ago, and let’s hope that many of you don’t recognize her as her practice is limited to criminal defense, is that right?

Andrea: That’s right.

Don: Let’s talk about your background and experience a little bit.

Andrea: Sure. I received my undergraduate degree from University of New Mexico. I went to law school in Denver, Colorado at the University of Denver. I practiced in Denver for about five years before moving to Las Vegas in 2004. I’ve been practicing criminal defense in Las Vegas since then. Almost 20 years altogether.

Don: Wow, 20 years?

Andrea: Yes.

Don: That’s a lot of cases, I imagine. Can you even estimate how many criminal cases you may have handled over the last 20?

Andrea: No, probably in the tens of thousands, I would suppose, but as far as handled versus gone to trial, that number I can come up with, but thousands.

Don: Has your practice concentrated on criminal defense through its entirety?

Andrea: Yes. Pretty much exclusively. The last five years I’ve been in private practice, I started my own practice and I’ve dabbled a little bit here and there, and a couple of civil matters mostly for friends and family members but other than that, it’s exclusively criminal.

Don: What excites you about being a criminal trial lawyer?

Andrea: Gosh, that’s a really good question. It’s really challenging. Every day is different. You really don’t know what to expect going in, and really had to think on your feet a lot, which I enjoy. I think in law school I interned at the Public Defender’s Office, is when I realized that I wanted to be a defense attorney but that was really the thing for me.

Don: Trial by fire, I guess, at the Public Defender’s Office?

Andrea: Right.

Don: What’s that like? Is it good training for someone that wants to go into private practice as a criminal defense?

Andrea: Definitely, good training. When I first started as an attorney, I was an intern for a couple of years, but when I first got my attorney caseload, it was about 350 misdemeanor cases. We had misdemeanor jury trials in the state of Colorado. Six-person jury trials. Every Monday morning, I would have between 25 and 35 jury trials scheduled. I didn’t know which one was going to go-

Don: You just take the big stack with you.

Andrea: Yes, you take the stack and you just have to figure it out. I think in my first year as an attorney, I did about 27 or 28 jury trials.

Don: Say that again. That is a huge number. Some criminal defense lawyers don’t try 25 cases in their lifetime in their career. You tried almost 30 cases in one year. It means picking a jury?

Andrea: Picking a jury, right. Start to finish, opening statement, cross-examining witnesses to verdict. With the misdemeanor jury trials, they were six people, but everything else was exactly the same. It was really good practice. Great practice for once you started receiving more serious cases that carried [crosstalk].

Don: Well, certainly every case is different, but in many respects, every case is the same and that it has the same parts. There’s a jury selection. There’s an opening statement, there are decisions to make along the way, the presentation of evidence, practicing cross-examination. Even in cases that you lose, there’s things to learn and get better at.

Andrea: Right, yes and that was a great opportunity really, to try new things, see how I felt in a courtroom, what I was comfortable with, because a lot of times one person’s style doesn’t work for the next guy so could really just practice.

Don: At CCW Safe if we pride ourselves on finding, identifying, and vetting the best trial lawyers in our jurisdiction to represent a member. We urge people whether they’re hiring a lawyer or want to recommend a lawyer to us to understand that because the lawyer did a great job on the neighbors’ will or handled the divorce effectively, that doesn’t necessarily qualify them to be a criminal defense lawyer to represent somebody who, God forbid, is in a lethal self-defense situation.

As a criminal trial lawyer, the accumulation of that experience help set the stage, not only for representing individuals in more serious cases but then also in private practice. How long were you at the Public Defender’s Office, and did your work continue as you’ve described?

Andrea: I was in the Public Defender’s Office in Colorado for almost five years. I think I spent about one year doing misdemeanor cases, about six months doing juvenile cases, and then I had a full felony caseload. I tried my first murder case, I think, after being an attorney for maybe two years or so. After five years of doing felony cases and murder cases in Colorado, I came to Las Vegas and I was in the Public Defender’s Office in Clark County as well.

Here they have a special team that only handles homicide cases. I essentially did exclusively murder cases for the 10 years I was at the Public Defender’s Office.

Don: For those that are watching, that aren’t necessarily familiar with the inside baseball of the criminal justice system, a misdemeanor, typically a lower-level crime, one for which you can go to jail, but not state prison. When you graduate to felonies, that’s a much more serious crime typically that does carry a potential prison sentence.

Andrea: Correct.

Don: Some of those I assume, could have mandatory minimum sentences?

Andrea: Many of them.

Don: So the stakes could be very high. Typically, in a felony case, everyone you represent in a felony case has some exposure to lengthy incarceration.

Andrea: That’s right.

Don: Did you continue to try a lot of cases when you’re handling felonies?

Andrea: I did. In Colorado and here, I think I had to come up with a number of fairly recently for something. I think it’s over 75 jury trials in my career that I’ve done. I think about 20, probably about 20 of those were murder cases.

Don: Now misdemeanors are pretty much pick up the file and try them at the Public Defender’s Office, and there’s a huge volume to go through. No doubt in felonies, you still have a huge volume, but the stakes are higher. The cases take longer to prepare and you wouldn’t expect to have as many felony trials even working full-time, I take it.

Andrea: Definitely not and particularly with homicide cases, I think you have to really have a limited caseload to handle those types of cases, because, not only are the stakes enormous but the scope of the file and the amount of work that has to go into it is so much greater.

Don: In the context of homicide cases, there was a point in your career at the Public Defender’s Office where pretty much the only cases you handled were homicides?

Andrea: Right.

Don: Homicides, of course, somebody died, the circumstances may be in dispute, but there’s no dispute that someone died. The question becomes, I take it, was it a crime that was committed? If so, was the person on trial, the person who committed the crime?

Andrea: Right, and the degree, sometimes there was no question, but that there was a homicide that my client killed another person but was it first-degree murder? Was it second-degree murder? Was it manslaughter? Or was it potentially a self-defense-type situation?

Don: What about the degrees, for example, what difference does that make?

Andrea: It depends a lot on the jurisdiction. Here in Nevada, first-degree murder carries the death penalty potentially life without the possibility of parole or life with the possibility of parole but after a fairly substantial prison sentence, minimum is 20 years.

Don: Someone who’s facing a first-degree murder charge, there’s three possible sentences on conviction?

Andrea: More or less, yes.

Don: None of them sound very good.

Andrea: No, they’re all bad.

Don: The death penalty, life without parole, meaning you spend the rest of your life in prison, no chance to get out.

Andrea: Correct.

Don: Third, after a lengthy prison sentence, you may be eligible for parole.

Andrea: Right, and that’s up to the parole board.

Don: The jury makes those decisions obviously on guilt or innocence and then, is there any other process after that that impacts the sentencing.

Andrea: There is, in Nevada, we do have the jury determine the sentence, even on non-capital cases so a jury can sit and decide whether a person should even, again, on a non-capital case received life without the possibility of parole or life with the possibility of parole. We can put on a second phase of a trial penalty phase in front of a jury as well.

Don: In your experience trying homicide cases, did a large number of them involve firearms or other deadly weapons.

Andrea: I would say majority of them involve deadly weapons and probably a majority of those were firearms. Not all, there’s knives, hammers, baseball bats, soup cans.

Don: Almost anything somebody can do it with someone else–

Andrea: Just about anything you could pick up but-

Don: You talked about sometimes the role of a criminal defense lawyer in that context is really for the jury to better understand the degree of what happened, even if a crime were committed, but there are complete defenses, I take it, to murder charges. Somebody could be facing what is even the death penalty, but certainly life in prison and have an affirmative defense of some sort, which essentially puts the case in an all-or-nothing context.

You mentioned self-defense, back in your early days at the Public Defender’s Office, did you handle cases for which there was a claim of self-defense, a claim that you investigated and then presented?

Andrea: Many times. Even in misdemeanor cases, self-defense is one of the main primary defenses in any type of assault or battery case, domestic violence cases. Often we run self-defense, and it tends to be somewhat successful defense and even in those cases. Given the right investigation and the right preparation, I think that many people understand being in that situation where, even if it’s a non-lethal situation where I’m forced to defend myself, like I did not want to push this person down, but I had no other choice.

That’s a light example, but it goes from the degree of a simple battery all the way up to a homicide or a shooting-type situation.

Don: There can be a lethal scenario involving a firearm for which someone died. Otherwise, it wouldn’t be a homicide for which there is the defense of justifiable use of force or self-defense. Is that the situation where you’re representing an individual who, on one hand, may be facing life in prison, or if the case goes the right way, literally walking out the door to spend the rest of their life with their family? How high are those stakes?

Andrea: They’re very high. They’re difficult cases. A lot of times, I think, and in self-defense cases, good self-defense cases, we are able to avoid trial by negotiating something with the district attorney who can see that perhaps the client was put in a situation that they should never have been in and we’re able to resolve the case without having to roll the– I don’t want to say roll the dice, but roll the dice with the jury.

Don: Let’s talk about roll the dice. What do you mean by roll the dice?

Andrea: Anytime you are in front of a jury, it’s essentially 12 people you’ve never met before who are going to determine the rest of your life. Who shows up for jury service that day can really impact how things go.

Don: As a defense lawyer with good investigation, good experts, there are some things you can control, but I take it, there are some things you can’t so probably more so in Las Vegas than anywhere else in the world where somebody says, it’s a crapshoot. That’s what we have here. Rolling the dice because as well-prepared, as you are, and as innocent as your client is, there’s no guarantee that the jury will reach the right result.

Andrea: Particularly in self-defense cases because there are always people out there that will think, “Well, you could have diffused the situation. You could have walked away, even if you didn’t have to, or weren’t required by law.” There’s people that think, “Well, the defendant is partially responsible because he or she was in the situation in the first place.” Sometimes a jury will end up with a person like that with that mindset, and they’ll end up with a compromised verdict. So no matter–

Don: A compromise verdict, meaning you may be charged with a higher crime than the jury reaches, but nonetheless, you get convicted of a crime.

Andrea: Potentially even a felony-type crime that carries a prison sentence, or certainly, having a felony on your record. Sometimes the jury will go back, and 11 people will say, “No, definitely this was self-defense, justifiable homicide.” And then there’s that one person that holds out and you end up with a mixed bag result and that’s not a good result for a client like that.

Don: At CCW Safe, we emphasize the importance of avoidance, regardless of whether you may have the legal right under the circumstances to use deadly force, whether it’s a stand-your-ground, circumstance or, some scenario which you clearly had the right to use force based upon the threat that you were facing but there may have been some opportunity to either deescalate earlier or to simply avoid by taking some other tactical position. Have you seen people that you’ve represented sitting next to you that says, “I wish I had done it differently.” Maybe people that were legally justified in doing what they did, but now they’re facing the rest of their life with those 12 people, someone whose life has been inalterably changed simply because of electing not to deescalate or not to avoid.

Andrea: I think most people, even before they’re looking at a jury, think I wish I had done something different. Hindsight is always 2020. I wish I hadn’t gone home at that time. I wish I hadn’t said X, Y, or Z. I’ve also had clients that have said, “I am absolutely 100% certain that I did the right thing,” and the result is the results.

Don: If you’re ever going to say to yourself, “I would have done it the same if I were faced again with those circumstances.” You’re at least in the right spot, you made the right decision, and hopefully, there’s the right outcome as well.

Andrea: I’ve had a number of self-defense situations where I believe my client was justified and did the right thing. Maybe they did too and the prosecutor sees somewhat our side and we’ll say, “Look, we’ll plea bargain basically,” which is, plead guilty or no contest to a lesser charge to avoid the possibility of a bad outcome at trial. I’ve had clients who’ve shot and killed other people and ended up with probation, ended up with misdemeanors, ended up with the cases being dismissed after a period of time, people who’ve had essentially their civil rights restored, because the district attorney understood that it was probably a self-defense situation, but rather than just dismiss the case, they’ll say, “Do these things, show us that you’re not a dangerous person, stay out of trouble for a year or two years.” Then the case will be resolved that way.

Don: That may have been the best outcome for that person at the time. It avoided rolling the dice at trial, nonetheless, someone who may have been legally justified wound up being further involved in the process, knowing though, had they gone to trial and lost, there would have been a substantial prison sentence, especially if a gun were involved. So how can you help push the case in the right direction? At what point would you typically find yourself involved in a criminal case? At what point in the process?

Andrea: Typically, the process, when I become involved after an arrest is made or after the person has been arraigned, which is the first appearance in front of a judge. Then an attorney usually comes in there. There’s been times that I have been alerted to situations before charges were brought or before client was arrested, and ideally, if I could have it my way, that would always be the case where I come in almost on the heels of the detectives or the investigators.

Don: When you say there’s been an arrest or even an arraignment, you’re talking about the incident is completely over, the case has been investigated a decision to arrest, and sometimes even a decision to charge has already been made so the case is formally in the system, you come in then maybe to address bail or some other aspect of the procedure, but it’s too late to affect the initial decisions anyway.

Andrea: Yes, definitely. There are some times where a decision hasn’t been made yet and I will be able to get involved in the case, but typically, law enforcement doesn’t want a criminal defense attorney hanging around with the crime scene or there when they are interrogating your client.

Don: Sure. They don’t make the call. A lot of times I assume that the accused doesn’t get the chance to make the call or doesn’t know who to call.

Andrea: That’s a big one. I think the big one is they–

Don: They may have never had a lawyer before. I would assume, especially in self-defense cases, we’ll call them the good guy or the good self-defense cases. I’m sure in your experience, you’ve had lots of bad ones too, where it wasn’t clear self-defense, but it was arguably self-defense, and you did the best you could with the facts. I assume you don’t get to make the facts.

Andrea: I wish I could.

Don: The job would be a lot easier when they trust me.

Andrea: Good self-defense cases that you’re talking about though, I’ve had a number of those, and you’re right. Those clients are usually new to the criminal justice system, have never been arrested before, oftentimes, never even had a traffic ticket. They’ve done everything the way they’re supposed to. They have legally carried firearm, it’s registered, they have a concealed carry permit and they’re forced to defend themselves. Then they realize, “Oh, shoot. I don’t know what to do. I know I need to ask for a lawyer but I don’t know who.”

Don: They don’t know who, they don’t know how much cooperation to provide the law enforcement, they don’t know what they might be giving up. They probably having lived a lawful life think that they can– if they just had a chance to explain it kind of thing. They wind up digging the hole a little deeper. I know through CCW Safe, if we’ve retained you in cases to deal with our members who have found themselves in a potential criminal situation involving self-defense, and in some capacity, varying degrees from relatively minor offenses to the worst scenario would be a lethal self-defense shooting.

Have you found in your experience that when you are able to get involved especially in a serious case before those first decisions have been made, that you are able, through investigation, through discussion shed some light on things for law enforcement, perhaps have some early contact with prosecutors, tell them something they didn’t necessarily know or humanized the client a little bit so they saw this person a little differently where it may have either given you more time before an arrest was made to work things out or maybe even has shifted things a little bit?

Andrea: I definitely think that those situations not only have they occurred but I agree with you 100% that it helps the sooner an attorney is involved in a case running interference, if you will, between the client and law enforcement or the prosecutors, I think the better off the client is 100% of the time. Obviously, you have to have the right attorney like you said, your bankruptcy lawyer, tax guy, might be okay, at least it’s a buffer person but–

Don: No. Don’t sell me on that. There’s no way they are okay. [crosstalk] I don’t even want a DUI lawyer touching a case like this, someone that spends their life in the criminal courts doing misdemeanors. I want an experienced criminal trial lawyer that has been through it before. I don’t want someone who’s going to learn on the job. Someone who’s been there, done that, knows which direction this case [background conversation].

Andrea, as you know is a national trial counsel, part of my role is identifying and then retaining experienced lawyers on behalf of our members who find themselves in a self-defense situation. My own personal experience, just my thinking on it, is there is a real value to hiring a lawyer that is from the same community where the incident took place, someone who has been there and worked other serious cases maybe with the same agency, and maybe with the same prosecutor or prosecutor’s office.

I wanted to know if you share that view, now you’ve been practicing here for more than 15 years or close to 15 having handled lots of serious cases. What do you think about that as a concept and do you feel that should be a priority in hiring a lawyer in a serious case?

Andrea: I do. I think it’s important for a couple of reasons. Speaking from experience, I was asked to handle a case a few years ago as retained counsel in a homicide case in Northeast Wyoming, where I’ve never practiced pro hac vice. There were really no attorneys in this small town who handled murder cases or series cases at all. The uncle of somebody that I had previously represented here had the family retain me.

Don: Let’s stop for just a second to say pro hac vice meaning a lawyer is allowed to appear on a specific case that’s not otherwise a general member of the bar, so it’s a special appearance and you have full authority to act as a lawyer but it’s limited to that case. You were admitted pro hac vice for this serious case in Wyoming?

Andrea: It was a murder case. The judge had never presided over a murder case. The DA had never prosecuted a murder case. My local counsel had never defended a murder case. I was the only person in the room really with any experience at all. There was that problem which is that I was out of my element. I didn’t know the prosecutor, I didn’t know the clerks at the courthouse, I didn’t know the detectives, there was nobody really, I could call if I needed help with something.

The case went forward and we had a great result but looking back now and thinking how my client probably would have been better served if there had been an attorney in that town that knew how to do that type of case because they would have had those relationships. Here it’s when I’m called in on a case for you or any other homicide case, I definitely have the experience with the same prosecutors I’ve worked with over the past 15 years or so.

Don: These are men and women that you simply are around a lot. You see them when you’re handling cases against each other but you would also see them in the courtroom and in the coffee shop [crosstalk].

Andrea: It’s basically the same set of prosecutors handling the murder cases in this city over the past 15 years. There’s been a little bit of movement but not a lot. It’s many of the same homicide detectives-

Don: This is kind of specialty work.

Andrea: It is. It’s a small town. Vegas is a very small legal community and everyone knows each other and people will ask me sometimes, “Oh, I’m thinking about hiring an attorney for this or this.” I’ll say, “Well, tell me who it is first before you hire them. Then I’ll let whether or not that somebody that I think would be good for that type of case because more or less everybody knows.”

Don: Do you agree that a lawyer could be an excellent choice for one type of matter but not a very good one for another case that may even be within the same general area, a DUI lawyer as opposed to someone with the homicide experience?

Andrea: I agree with that completely. In fact, people come to me a lot of times with criminal cases and I’ve handled countless numbers of DUIs but it’s not my specialty. If it’s somebody that wants to retain somebody because they plan on going to trial that they have a defense or they’re looking at a lot of time because maybe it was a particular-type DUI– I’m sorry like a vehicular manslaughter-type DUI, I will refer them to somebody specialized. It’s usually in that field.

Don: You talked about your experience in Wyoming and on the other side of that, have you had the benefit of being a local, an experienced local with a good reputation as a trial lawyer on behalf of your clients here, where it turns out that you’re involved early on, that you’ve had prior cases with the investigator, you’ve had prior cases with the prosecutor, and you’ve had an opportunity to get involved in the case where you may have had an opportunity to have some effect early on.

Andrea: Definitely. I think I know that’s happened with members fairly recently where, when I got the call, found out who the homicide detective was that somebody whose cell phone number I happened to have. The DA is somebody who I can text and say, “Hey, what’s going on with this situation? I’ve been retained. I’d like to talk to somebody ASAP.”

Don: Let’s talk about what the real significance of that is because people hear a lawyer saying hire me for the case because I know the judge, or I know the DA, and internally I’d laugh because I know that’s so silly to try to play on some personal relationship to think you’re to gain an advantage that there’s some corruption going on here. On the other hand, when you do know the judge, or you do know the DA, or you do know the investigator because you’ve had other cases with them that you have demonstrated your competence, that you respect their competence and their professionalism, you may not get any favors but you’re going to get their attention.

They’re going to listen to you, they’re going to give you a chance to explain yourself, and when you say something they’re going to take you seriously, is that your experience?

Andrea: Absolutely. Definitely. I think I know what’s important to them. Sometimes particular detectives have a style or a way of going about things that I recognize and I can prepare the client for that as well. I think letting the client know, “Don’t be put off because he’s very aggressive or his demeanor is this way or that way,” doesn’t necessarily mean that they’re going to take you out of here in handcuffs. That’s just his or her style. I think that’s a big plus, for sure.

Don: Let’s talk about some of the general’s missed conceptions about criminal defense practice, just for a second. Let’s talk about where the cases come from sometimes, are you sometimes hired by a third party, but I suppose more importantly, how do you get paid? A lot of people say, “Well, I’ll just hire a lawyer. When the case is over, I’ll get a job and pay them,” or “I’ll hire a lawyer. If they win, they are not–” read the billboards, the personal injury guys. What’s the slogan, no fee, unless we win kind of thing contingencies. What’s the harsh reality when it comes to facing a serious charge and you need to hire a lawyer.

Andrea: It’s going to cost a lot of money. That’s really what it comes down to. If you can’t afford to hire an attorney, you can apply for a public defender, court-appointed attorney, and then that attorney’s paid hourly, typically by the county or the state or the jurisdiction. Retained attorney, for more serious cases, is usually phenomenally expensive.

Don: We Can talk about that for a second. It’s obviously based on, to some degree, time, correct? However, most criminal defense cases are handled on a flat fee basis. It may be structured or staged, but if somebody walks into your office and says– well, they wouldn’t be walking into the wrong to your office if they had been arrested for murder, typically because they may be held without bond. They may have to scramble, even in the most legitimate of self-defense cases, they may not get out of jail right away. They may need money to post bonds. If one said, hire a lawyer, and then you would be looking at a year to a year and a half of you working on that case. It could be hundreds of thousands of dollars. Is that fair?

Andrea: Yes, I think that’s fair. The cost for a client or a member, it’s not just the attorney, they have to think about it too. It’s the investigators, the experts, all the fees and costs associated with a case like that, but yes, so typically there’s a fairly high retainer fee. In Las Vegas, and I don’t know about other places around the country, but depending on whose office you walk into, it could be $50,000 or it could be $500,000.

There’s no set fee for those services so I think it’s a very confusing process for a lot of people. They think, and I’ll just give the example of a DUI, it’s a little bit simpler, but it’s a simple case. Typically, it doesn’t take a lot of time or effort, but there are attorneys in this city that will charge $500 to represent somebody for DUI. Then there are other attorneys that will charge $25,000 for the same case. There’s no rhyme or reason to it. It doesn’t necessarily mean that the $25,000 lawyer is better than the $500 lawyer, it’s just the way it is.

Don: I suppose that in those instances, the person looking to hire the lawyer is at a significant disadvantage. They aren’t in a good position to evaluate whether the fee is fair or the skill level of the lawyer, especially under the circumstances where they need somebody right away.

Andrea: Exactly. I think I wish there was a way to create some structure to it or something that made sense, I guess, other than people just going online and Googling and trying to find out about how much would it cost for this. It could vary greatly. The same is true for a homicide case.

Don: Regardless of how much it is, and we know in a serious case it could be tens, if not hundreds of thousands of dollars, the harsh truth is, if you don’t have the money, you don’t get that lawyer. Don’t you have to make those decisions? Don’t you have to decide, even if you like the person, even if you think it’s a defensible case, but the person simply can’t pay you enough to keep the doors of the office open, you have to say, “No.”

Andrea: That’s true. That’s hard to do, but I have to pay my bills too, to pay my staff.

Don: Of course, it’s not a charity, but at the same time, it’s a business. Maybe one of those misconceptions is that criminal defense lawyers are rich. Maybe the guy who gets 25,000 for a DUI, but in your experience, are criminal defense lawyers often the product of government work through the public defender or the district attorney’s office, those that have criminal law in their veins, but nonetheless, don’t want to align themselves with a big corporate for their fiercely independent or just don’t play well with others perhaps–

Andrea: I see that a lot.

Don: -but they all have families and mortgages and car payments to make.

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