44. What Criminal Defense Really Looks Like Behind the Scenes

HD 44 Shane McKeen final audio
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[00:00:00] Shane McKeen: The reality is that 99% of cases do end up settling and not everybody is gonna be happy about it. But when it comes down to the day of trial where it's time to make a decision, a lot of people really don't want to take, take the risk of going to, if it's a misdemeanor, county jail, or of a felony actually potentially going to prison for a year.

[00:00:23] Bobby Steinbach: Welcome to Hot Docket, the show where we talk about winning marketing strategies that have built the most successful law firms. 

[00:00:28] Andrew Nasrinpay: Join us every two weeks for the latest trends and tactics to grow your law firm. 

[00:00:33] Bobby Steinbach: Hey everybody. Welcome to the Hot Docket Podcast. Uh, today we have with us Shane McKeen of McKeen Law out of Atlanta, Shane practices criminal defense.

[00:00:43] Bobby Steinbach: And, uh, we're really excited to chat with him today about all things criminal defense.

[00:00:52] Shane McKeen: Hey. Hey. Good to talk to you guys 

[00:00:55] Bobby Steinbach: in the world of DUI. I know that's probably. Where the majority of your cases kinda lie. I can imagine stuff like this that's more complex in nature is probably less of a concern, and there's, I'm assuming things like, you know, um, proper procedure on the part of officers and kind of like making sure that chain of evidence or, or what have you.

[00:01:23] Bobby Steinbach: Is kept intact. There's probably more like procedural things that you care about when you're working, the cases that you're working, but I'd love to hear, uh, I mean, I'm just making that, that I'm making that guess. Uh, as somebody who's not a lawyer and knows nothing. If you could walk us through kinda like what is important in your cases and kinda what typically hinges a successful or an unsuccessful, uh, case that'd be helpful for us.

[00:01:49] Shane McKeen: Right. So the most successful outcomes you're gonna get are where. There were procedural issues. Um, DUI is very, uh, has to be done very by the book. You get the occasional case, uh, where you get an unusual situation, circumstantial driving civilian witnesses who may testify to seeing things. But the 99% of DUIs involve traffic stops.

[00:02:18] Shane McKeen: Checkpoint check and then officers going through a standardized set of field sobriety evaluations that they use to determine if someone is impaired or not. So you, you start with the traffic stop. Um, what if it was a checkpoint? Those are pretty cut and dry. They have to follow a written procedure that's established in advance in order to.

[00:02:41] Shane McKeen: Do these DUI checkpoints, they have to be randomized and a lot of people get caught up in it that way, but probably most are just very minor traffic violations. Things that you would not get pulled over for during normal hours. But at 2:00 AM 3:00 AM they're looking for slight weaves, uh, leaving your lane of travel.

[00:03:07] Shane McKeen: Weaving within your lane of travel, any of those things can justify a traffic stop. So that's where, uh, we initially looked to see if a case can be defended, because if a traffic stop is illegal, the whole case is out, but not something, not something that you're gonna typically see. But we, we do look for it because it does get you kind of that instant win if you can, if you can beat a traffic, stop and find that it's not legal.

[00:03:35] Andrew Nasrinpay: So for the easy wins, when, let's say the police officer doesn't show up, can you give us a rough estimate for how often, for any of your case types? You, you go to trial and the police officer just doesn't show up. 

[00:03:49] Shane McKeen: Yeah. Uh, I, I, I always tell clients not to expect that to happen because that is not a, a typical outcome.

[00:03:58] Shane McKeen: Funnily enough, I, I did have it happen in the last month or so, uh, totally unexpected where a police officer did not show up for trial, but that, that generally does not happen. That, and showing trial means you've already gone. Years of waiting. You've already gone to a calendar call, you've gone to an arraignment, maybe a status hearing, maybe a motions hearing before you ever get to the point where an officer has to show up.

[00:04:29] Shane McKeen: Okay, so it, it's not, you go to your first court date and the officer's not there and case gets dismissed. A lot of people think that's how it works, not how it works. You go through a lot of sitting and waiting through court hearings before you ever get to that point, and the only way you're gonna. Get that instant win, get that dismissal as if the officer's not there and the state doesn't know why he's not there.

[00:04:55] Shane McKeen: Usually they know why he is not there and the judges will be very lenient with giving them another, another shot. 

[00:05:03] Andrew Nasrinpay: Got it. Can you run us through any other misconceptions that people commonly have? 

[00:05:08] Shane McKeen: The biggest one definitely is that, uh, and something I, a conversation I have with people. Daily I feel like is the officer did not read me my rights.

[00:05:20] Shane McKeen: That's a very big, uh, conversation that I have with people all the time. And it's, uh, I hate to be a downer on all of these, but an officer does not have to read you your rights and they're referring to Miranda Rights or I assume they're referring to Miranda rights in a DUI case or even. Most criminal cases, I do more than just DUIs.

[00:05:43] Shane McKeen: But in most criminal cases, Miranda rights are not gonna be an issue. It only comes up when you're being interrogated after you've already been arrested. So the thing about DUIs especially is most of the investigation happens prior to an arrest, a formal arrest actually happening. And the only question you're asked after a formal arrest is whether you wanna do a blood test, whether you wanna do a breath test.

[00:06:12] Shane McKeen: Uh, but at least in Georgia, our courts have found that you don't have to, uh, read Miranda prior to asking that question. 

[00:06:21] Bobby Steinbach: Is there ever a scenario you should cooperate without having your lawyer present? 

[00:06:26] Shane McKeen: So with DUI, and this comes up a lot in videos, traffic stops.

[00:06:36] Shane McKeen: Well with DUI, you're not gonna get a chance to have a lawyer present, but with other cases, uh, no. You never, if it's not traffic related where you're not gonna have the opportunity to have a lawyer present, no. You never want to. Cooperate attempt to talk to the police, talk them out of doing what they've probably already decided they're gonna do.

[00:06:58] Bobby Steinbach: Got it. Okay. Um, to pivot a little bit, can you walk us through your tools of the trade? Like what are the tech tools or, you know, not tech tools. You, you could give an answer like Microsoft Excel. What are some of the tools that are like indispensable to your work? Hmm.

[00:07:21] Shane McKeen: At least with what I do at the state level, I would say is pretty low tech. Um, yeah, you'll have to gimme an example. I we're just using basic computer skills, 

[00:07:35] Bobby Steinbach: like do you guys use, uh, CRM like Clio or File Vine or anything like that to manage court dates and understand when you know key. Moments are in the lifecycle of one of your matters, like, uh, are you using anything on that side?

[00:07:50] Shane McKeen: So I. Trying to incorporate some AI tools, uh, to, to make some of those things more streamlined. Um, right now, I, I've got someone working on something for me. I, I'm not sure what site they're using, but it involves, it involves more of a CRM than I've had in the past. Uh, but as my volume has increased, that's become, that's definitely become more necessary.

[00:08:14] Shane McKeen: Right now it's very manual. Google Calendar, Dropbox, um, alerts of those nature. And it's really for me, because of the way criminal defense works, you're trying to prepare for things as far in advance as you can. So, uh. I really just have a task list based on what's coming up on my calendar because some of these cases, uh, and with a lot of cases I might not touch them for a year.

[00:08:45] Shane McKeen: Nothing may happen for a year after the initial inception of the case. So I'm just looking at what's coming up and there's a lot of manual work in, in law. I wish it were easier to streamline that way, but, uh. At least with me, I feel like, uh, there has to be a lot of physical hands-on to actually know what's happening with the case.

[00:09:10] Bobby Steinbach: What's the maximum number of files you think a criminal defense lawyer can hold at one time and be effective? 

[00:09:18] Shane McKeen: It, it's gonna depend on your staff. Um, I, I, uh, would say more than, more than a couple hundred is probably gonna be pushing it. Um, but it depends how serious those cases are. Um, if you're talking about murders, things that are definitely gonna go to trial, those are gonna be more labor intensive than, uh, DUIs, drug possessions that, uh, maybe a domestic violence matter.

[00:09:46] Shane McKeen: Things that are more cookie cutter. Okay. And once you've done it for a while, you know what, what you need to do for, for the cases that are more, uh, that fit in those boxes evenly. So it just depends how many complex matters you have. I.

[00:10:03] Andrew Nasrinpay: Shane, to change gears just a little bit, can you give us a background on how you became a criminal defense attorney and kind of your origin story, 

[00:10:12] Shane McKeen: origin story? So, um, what first got me interested in law was, was criminal practice. Uh, I was in a community college and I took a class on that was taught by a former prosecutor.

[00:10:27] Shane McKeen: Um. Who worked at a local prosecutor's office prosecuting misdemeanors, and that's what really got me interested in it. Uh, the, the procedure of getting from college to law school is, is definitely a slog because you're just trying to get a degree so that you can take the law school entrance exam and then you've got another three years after that.

[00:10:51] Shane McKeen: But I always wanted to be in criminal. Um, so that's. Those were the internships that I sought out. Um, as I, as I went through, um, I was able to intern with the US Attorney's Office for a while in Atlanta as well. Um, and then I prosecuted for about five years before starting my own practice. Uh, the prosecution side of it, uh, it was mostly DUI misdemeanors, uh, traffic court was where I spent time prosecuting.

[00:11:21] Bobby Steinbach: What's the biggest mindset shift between being on the prosecution side and criminal defense side? 

[00:11:26] Shane McKeen: So you still really look at cases the same way? Um, I don't really think you can be effective if you have, if you have a bias one way or another, but you still look at cases the same way. But the biggest mindset shift is getting to know the person who's who's charged.

[00:11:46] Shane McKeen: Uh, because when you're the prosecutor, you don't. Don't really want to know them because, uh, I think that would make it difficult to do your job. Uh, but as the, it's much more getting to know the person. Uh. And humanizing them in front of the court to the prosecutor. That's, that's the biggest mindset shift I would say, because you go from, well, can I prove my case to, now I'm looking at it, well, can the state prove this case?

[00:12:17] Shane McKeen: But also you're dealing with, uh, people, um, who have a lot of questions and uh, there's a lot of tough conversations that have to happen. 

[00:12:27] Bobby Steinbach: Yeah, I, from the outside, I would think that. Like when you talk about what is hard about each of these, you know, sides of the bar that you're operating on, it is probably a very different, like, if you had to point to one thing that is the hardest thing about being a criminal defense lawyer, and the one thing that is the hardest thing about being a, like a prosecutor on the other side.

[00:12:54] Bobby Steinbach: I could imagine that the set that, that, that set would be very different. Like on the prosecution side, what, what you said around not necessarily wanting to know the defendant, I could imagine that being very difficult. If you look across and you see somebody who has a family and like maybe is a good person besides for one thing they did, and knowing that the stakes are high, that you might be kind of like destroying their life.

[00:13:19] Bobby Steinbach: And on the other side, on the criminal defense side. I can imagine it might be very hard that kind of like in the same vein, you might find somebody that you really don't like a lot and you think that they've got a lot of views that are questionable, but you have to put that aside to fight for their rights in their case.

[00:13:40] Bobby Steinbach: So like for me, that, that's kinda like my naive, um, interpretation of what some of the difficulties could be. But I'd love to hear from you. Is that aligned with your experience or is there something that I just would never even know is like the hardest part about being on both sides of 

[00:14:01] Shane McKeen: uh, so I, I, I feel like being a prosecutor is, is not that difficult in, in a lot of ways because you have, you have policies that you have to follow, you try to treat everybody the same, and it, it can make your decisions.

[00:14:18] Shane McKeen: Easier and easier. At the end of the day, you're not responsible for, uh, for what happens to the defendant, but when you're the, the attorney, you really take all of that on all of the problems that this is gonna cause people, not just directly, but collaterally. You take all of that on so. I, I feel like the job in that sense is much harder, the actual loss side of it.

[00:14:44] Shane McKeen: Um, we could argue it either way, but yeah. Uh, the effect on families, the explaining to people, the stakes, the risks, that is the most difficult conversation to have because while I encourage any client to fight their case, especially if they believe that. Something was done wrongly. Ultimately, they have to be able to, they have to be willing to take that risk because we don't, we can't guarantee outcomes in this space.

[00:15:12] Shane McKeen: Not that you can really, in any, uh, any type of legal proceeding where you have someone on the other side try to make your job harder. And that's, that's the hard part of it. Uh, and not only do you have the person on the other side making your job harder, you've also got the judge involved in there too, to whatever extent they're gonna get involved.

[00:15:35] Bobby Steinbach: Can you think of a scenario when you and your client had very different views on whether you should like, take a settlement offer, take a plea deal, or. Go, like how you work through that. 

[00:15:51] Shane McKeen: Sure. And, um, happens all the time and the reality is that 99% of cases do end up settling and, um, not everybody is gonna be happy about it, but, uh.

[00:16:05] Shane McKeen: When it comes down to the day of trial where it, it's time to make a decision. A lot of people really don't wanna take, take the risk of going to, if it's a misdemeanor county jail or of a felony actually potentially going to prison for a year. 

[00:16:22] Bobby Steinbach: How do you work through differences that are so deep? Like that is probably like a, it's not an irreconcilable difference because you have to work through it, but.

[00:16:32] Bobby Steinbach: Somebody, if your client wants to go to trial, you wanna take the plea deal, that's a pretty wide gap. How do you bridge it? 

[00:16:38] Shane McKeen: Right? Um, sometimes you don't, sometimes you have, you do what the client wants, uh, even though you advise them differently. But, um. Sometimes you really have to be, uh, forceful with explaining what could happen.

[00:16:57] Shane McKeen: Because, because the range of penalties for these things are so unknown, um. You really have to sit a person down and say, look, this is what you're facing. This is what could happen. Uh, a lot. A lot of times clients will ask for a likelihood, what's the percentage, this or that, what could happen? And the range is so broad that.

[00:17:20] Shane McKeen: I just have to say, if you go for it, it's maybe all or nothing. You may be sitting down in the county jail for a month, two months, up to 12 months on a misdemeanor technically, although that's uncommon. But um, yeah, sometimes you don't bridge that gap and you just move forward and you put up your best case.

[00:17:39] Shane McKeen: Sometimes it goes in your favor. For reasons you might not know. Uh, and sometimes it doesn't. And that's, uh, that's the un unknowable part of, of dealing with juries, especially if you're talking about a jury trial, because you're, you don't know what's gonna happen. They, juries can do whatever they want for whatever reason they want.

[00:18:00] Shane McKeen: They're supposed to follow the law. Having talked to jurors many, many times, the things that they do for the reasons they do it are totally unpredictable. So I don't like, I don't like, uh, unpredictability and I don't think most clients do either. 

[00:18:20] Andrew Nasrinpay: Can you walk us through what your jury selection process looks like?

[00:18:25] Shane McKeen: It's gonna be very dependent on the judge. You want to insert as much arguments, uh, insinuation about what your case is going to show. But some judges are very limited on what you can ask, and it's gonna vary depending on what the case is. For A DUI trial, for example, since we've been kind of focused on that, um.

[00:18:49] Shane McKeen: You wanna know what people's attitudes are towards, towards alcohol, drinking, driving. Have they been arrested for DUIs before? Have they had bad experiences with police? Have they, uh, been negatively affected by alcohol? Alcoholism getting hit by drunk drivers? Those are the things you really wanna try to suss out in those cases.

[00:19:11] Shane McKeen: But, um.

[00:19:19] Shane McKeen: The purpose of it is to, uh, find out who is, who's gonna be biased and who's not. And there's no hard rule on what's allowed in jury selection. But I try to focus on elements of my case, depending on what the case is, uh, that I can ask about to see if there's gonna be similarities between experiences that they've had and experiences that my client has had, but.

[00:19:47] Shane McKeen: A lot of it really is feel, um, looking at, looking at their profession, looking at their age, looking at, uh, ethnicity. Although there are, there are rules about how that can be, how that can be implemented, but it applies more towards the prosecution than it does to the defense. But you, you want to get rid of the people who you think will be the worst for your case.

[00:20:14] Shane McKeen: It's not about selecting the jurors that. You want. Nobody gets the jurors that they want. You wanna identify the people that you don't want, and then everybody's left with the people who didn't fall into either of those categories. 

[00:20:29] Andrew Nasrinpay: Okay. So when you brought up occupation, we've gotten mixed reviews on this one.

[00:20:35] Andrew Nasrinpay: How do you feel about selecting someone who has a spouse that is an officer? 

[00:20:41] Shane McKeen: Police officer, family and friends of law enforcement depends how closely related they are, but, uh, from a defense standpoint, that is probably not somebody you want on your jury for a criminal case. Absolutely not. You might strike them just for that reason.

[00:20:57] Andrew Nasrinpay: Are there any other big no-nos on the occupation side that you would strike out? I 

[00:21:03] Shane McKeen: probably would not keep another attorney on my jury. 

[00:21:06] Andrew Nasrinpay: Um, can you, can you walk us through that? 

[00:21:09] Shane McKeen: Sure. So the issue with having lawyers on your jury, uh, in any, in any type of case, I, I speak more towards criminal, is that they.

[00:21:18] Shane McKeen: Know or should know what's kind of happening behind the scenes. They'll, they'll make assumptions and there's a high probability they're gonna end up being your foreperson. Um, because other jurors will look to them because, hey, they're supposed to know what's going on here, and you don't know what experience they've had in the past.

[00:21:41] Shane McKeen: Um, you can't get into all of their legal experience during jury selection. You can try, but, um. The way their laws are written, um, are not necessarily. Defense friendly. And if you follow the letter of, of law on these, um, it's akin to maybe having a bench trial. And so the re the reason you have a jury trial as, as a criminal defendant as opposed to letting the judge decide, is because you don't want another lawyer to just follow the letter of the law.

[00:22:16] Shane McKeen: Make a decision based on that. 'cause a lot of the time it'll not go in your favor. So I would consider it a big risk unless I probably wouldn't even pick another criminal defense attorney to go on my jury for the same reasons. 

[00:22:32] Andrew Nasrinpay: Any other occupations that you would strike out 

[00:22:34] Shane McKeen: just uh, on its face? No, but, um, the more I would say, the more, uh.

[00:22:45] Shane McKeen: The job, maybe the, so you get into engineering, uh, engineers, uh, people who may have a lot more. Uh, a lot more questions. Those are people that sometimes we, we tend to avoid because we want jurors who are going to listen to what's presented and not try to think outside the box with what's, uh, with what they're gonna do.

[00:23:11] Shane McKeen: Now, that could, that could cut both ways. Obviously we don't know which way that's gonna go, but, uh, we want jurors who are going to listen to what we're presenting. I can't really specify the exact occupation where that's gonna be a problem, but I do, uh, have a bit more, take a bit more care with, with, uh, people, uh, in, in professions that are, that are just gonna be more questioning of things, maybe more scientific, because the case they're gonna see might not meet up to the, the standards that they expect.

[00:23:46] Andrew Nasrinpay: Are there any other, like outside of occupation, are there any other things that you would look to, to remove? 

[00:23:53] Shane McKeen: Well, you mentioned law enforcement. Uh, aside from that, you, you want to get rid of people who are gonna be real pearl clutches with what they might hear because, uh. A lot of people have no idea the type of crime that's happening in their, in their community, and they are, uh, they're gonna be more likely to be offended by what they hear.

[00:24:22] Shane McKeen: And, um, I would, for criminal defense especially, I tend to look for younger, uh, younger jurors than, uh, older people, retired people. Um. Just because I think they're gonna be more likely to, uh, give somebody the benefit of the doubt that someone who has maybe more life experience and is gonna feel like they know what's happening behind the scenes.

[00:24:50] Shane McKeen: So younger for, uh, from a defense standpoint, we definitely would like a younger juror. 

[00:24:55] Bobby Steinbach: Shane. Um, I think it's a good time for us to, to kind of wrap everything up here. I, I'd love to just end with a couple of, um. Less professional topics. The first is any books that you think people would enjoy reading, whether it's related to profession or not?

[00:25:15] Shane McKeen: Books. Uh, so you, you're looking for fiction books, uh, professional books. 

[00:25:21] Bobby Steinbach: Well, if you have anything that you think. Can put people in the minds of like a criminal defense attorney, first and foremost, or like tools of the trade book. Let's start there. If you don't, then, then, yeah. What's top fiction book? 

[00:25:34] Shane McKeen: I would say if, if you're asking about books, there are some, some John Grisham books, I can't think of the name right now, but there are some, uh, just, you know, they're real just short page turner type books that are actually pretty.

[00:25:52] Shane McKeen: Do somewhat reflect what actually happened more so than you see on TV in the mindset of the lawyer. Man, I can't remember the names of some of these books because I've read, I've read so many of them. But, um, I do find that his depictions are not, um, are more accurate than probably what you see on tv, the, the popular legal shows.

[00:26:14] Shane McKeen: But. Professional books. No, I, that's a terrible answer. Sorry. 

[00:26:21] Bobby Steinbach: That's fine. Uh, and then the second one is, how can people find you? 

[00:26:26] Shane McKeen: How can you find me? So, um, really just Google my name. Um, I'm trying to, trying to bump up the Google reviews, but, uh, just searched Shane McKeen or McKeen Law. In Atlanta, Gwinnett County, Fulton County, Cobb County.

[00:26:43] Shane McKeen: I work all in the metro area. Uh, my website is McKeen law atlanta.com. Uh, and I'm available pretty much around the clock. Uh, if you send me a message through the website, uh, I get back to people as quickly as I can, so I'm easy to find. 

[00:27:00] Bobby Steinbach: Awesome. Well, thanks for hopping on this episode of Hot Docket and uh, we'll see you on the next one.

[00:27:05] Bobby Steinbach: Thanks, Shane. We hope you've enjoyed this episode of Hot Docket. We're your hosts, Bobby and Andrew, founders of Mean Pug, the marketing agency for ambitious law firms. 

[00:27:14] Andrew Nasrinpay: Have questions about marketing or anything we covered today? Email us at bark@meanpug.com. Be sure to subscribe to learn more. Until next time.