The last myth I will discuss is the myth of the “other person” that every client knows. This other person had the same charge as the client or an even worse charge. And this other person either had their case thrown out or they were treated much more leniently than the client, and it was due to one of the myths listed above.

The basis in truth to this mythical other person who no doubt hangs out with The Reasonable Person (AKA The Reasonable Man),134 and Elvis is that depending upon the crime charged, the facts of the case, the defendant, the defendant’s prior record, the alleged victim(s), the police officers, the Judge, the prosecutor, the defense attorney, and luck, anything can happen in any case, and any myth can become a reality.

Then there is the person accused of any crime with a weapon who believes that since no weapon was recovered or introduced into evidence at trial, that he cannot be found guilty of having a weapon. Unfortunately, this is not the case.33 And ironic as it may seem, in certain cases where the so called weapon used is not a firearm or otherwise capable of causing death or serious bodily injury or not even a weapon at all, a defendant may be better off having the police finding the alleged weapon than not finding it.34 The reason being is that without the weapon all the jury has to rely on for the existence of the weapon is the witness or witnesses’ word versus the word of the defendant.

The basis in truth for the no weapon myth may come from the line of cases that state in a possession of a controlled substance case if the drug in question is not introduced into evidence the defendant prevails.35 In a forgery or uttering a forgery case if the document that was forged or uttered is not introduced into evidence then the defendant may also prevail.36

There are many myths attributable to the client’s prior record.  But before the client can espouse his mythical beliefs relating to his prior record, he first has to acknowledge that he actually has one. Many clients cannot or claim not to remember their prior record. And the longer the record is, the less they seem to recall. When they are confronted with their prior record their first response about each case is they thought it was dropped, sealed, or expunged.

Once they get passed this step and acknowledge that they do in fact have a prior record, the first myth that comes to mind is their belief that if adjudication was withheld the crime is no longer on their record (i.e. because it was dropped, sealed, or expunged), or because withholds just don’t count. The basis in truth for this myth comes from the fact that certain withholds can be sealed and ultimately expunged.  But a person is only allowed to seal or expunge one case per lifetime,88 it doesn’t just happen all by itself, and a sealed or expunged case can still be counted on a person’s scoresheet.89 A withhold for a felony charge prevents a person from losing their civil rights, which allows the person to continue to vote, serve on a jury, apply for Occupational Licenses, hold office, and bear arms.90  However, a person must still register as a felon,91 and wait three years after his sentence is over to apply for a concealed firearm’s permit, unless the felony case has been sealed or expunged.92

Some people have mythical beliefs about clemency and pardons.  They mistakenly believe that the former and latter take the charge off of a person’s record. Clemency gives a convicted felon most of his civil rights back. A convicted felon can apply for the kind of clemency that gives a person his civil rights back minus the right to bear arms as soon as his sentence is completed and complied with. But convicted felons have to wait eight years after their sentence is complete and complied with to apply for the kind of clemency that reinstates their right to bear arms.93 A person has to wait ten years until after his sentence is complete and complied with to even ask for a pardon.94 Only a full pardon includes the right to bear arms.95 But neither clemency nor a full pardon result in a convicted felon being eligible to seal and or expunge his record.96

There is also the myth that if the crime was committed along time ago it will no longer appear on a person’s record. Most clients cannot understand how their DUI from the seventies still shows up on their driving record. They think that after a certain amount of time it just magically falls off or just no longer counts. This myth has some basis in truth since some crimes can be deemed too remote in time to score on a person’s scoresheet,97 and too remote to be used for impeachment purposes.98 Also certain traffic citations that result in points on a person’s driver’s license stop counting towards a license suspension after three years,99 which may be why some people think certain crimes just vanish from their driving record.  And of course some people are lucky and certain charges do somehow get lost, destroyed or magically disappear.

Some people also believe that a person’s juvenile record will not count against them, and that all juvenile records are confidential.  For the most part this myth has for a long time been a reality, but the legislature has seen fit to make sure in certain instances a juvenile’s record is not so confidential100 or forgotten.101

Of course, the final response people give when they are confronted with their prior record and convinced it does in fact exist and count against them is that since they were already punished for those crimes they should not keep counting against them.  “That’s double-jeopardy. I already did my time for those crimes. I was already punished.”

Perhaps this is more wishful thinking than a myth, since most people when confronted agree that a person with no prior record should not be treated the same as a person who has a prior record. In fact, this is the very same argument these people made when they were first charged with a crime.  They even made this argument when their first crime was quite serious, and their lack of prior record really didn’t matter.

Then there are the myths that come from the people who are released from jail because the Judge did not find Probable Cause to detain them,102 or thirty-three days have passed without the state filing an information against them. 103

These clients naturally believe that their case has been thrown out by the Judge and they no longer have to appear in court. The reality is sometimes this ends up being the case, but it’s not for certain, which is why some clients end up with a warrant for failing to appear that quickly brings them back to reality.

Then there is the myth of the appeal. Now I’m all for defendant’s being informed of their rights, but perhaps the most deceiving information a defendant is given is the one that comes right after the Defendant has pled and been sentenced. That’s when he’s told, “you have thirty days to appeal your sentence.” He doesn’t know what, “for collateral purposes only” means. He doesn’t understand that for the most part these are mere obligatory words. That the chances of winning an appeal after a plea and sentence are highly unlikely to say the least. No, he like just about every other client is under the long-standing myth that he can appeal and he will win his appeal, whether he lost at trial or pled.

The basis in truth here of course is that a small number of people do win their appeals, and sometimes appeals are even won when the appellate attorney has given up on winning by filing an Andersbrief.132 For those unfamiliar with the term, an Anders brief is an appellate brief filed in cases where appellate counsel believes that there is no basis for an appeal. That an appeal in fact would be frivolous. An Anders brief is basically code for, “nothing here.”

The Appellate court Judges or rather their Law clerks then review the record on appeal to confirm that there is in fact, “nothing there.” But what if there is something there. What if appellate counsel missed something or was too lazy to even look for it because he didn’t feel like writing an appeal. Now, a lot can be said for getting other people, especially Appellate Judges and or their Law clerks to do your work.  But if they find something worth overturning on appeal, then shouldn’t the attorney who submitted the Anders brief be billed costs and reasonable attorney’s fees.