What It's Like To Be...

A Criminal Defense Attorney

October 15, 2023 Dan Heath Season 1 Episode 3
What It's Like To Be...
A Criminal Defense Attorney
Show Notes Transcript

Defending a man prosecuted for breaking into his own house, carrying clients’ burdens, and dispelling a myth about Miranda rights with Mike Panella, a criminal defense attorney from Orlando.

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Want to be on the show? Leave a message on our voice mailbox at (919) 213-0456. We’ll ask you to answer two questions:

  1. What do people think your job is like and what is it actually like?
  2. What’s a word or phrase that only someone from your profession would be likely to know and what does it mean?

Dan Heath:
Mike Panella is a criminal defense attorney in Orlando, Florida. I talked to him recently. I told him, we've all seen a thousand Law and Order episodes and we think we know what defense attorneys do. I asked him, what do we get wrong?

Mike Panella:
The “You have the right to remain silent, anything you say...” I can't tell you how many times someone calls me, and it's always Law and Order. Every freaking time. I just had a client, a new client in a use of force case, call me after they retained me and said, "Now that I've been thinking about it, I was just watching Law and Order last night, and they never read me my Miranda Rights." There's a true thing that just happened to me like a week ago. And it happens all the time. And to me it's just kind of...

Dan Heath:
Wait. Is that not true?

Mike Panella:
No, man. Nah, that's TV.

Dan Heath:
They don't have to read you... we've been lied to?

Mike Panella:
You've been lied to. All right, you ready? You ready for the actual rule?

Dan Heath:
Let me break in here and leave you in suspense for one minute. I'm Dan Heath, and this is What It's Like To Be. This is the show where in every episode we profile somebody from a different profession. What are the good parts and the bad parts of their job? How did they know the work would fit them? And ultimately, we're trying to explore the most basic question of human curiosity, what is it like to be someone else? To walk in their shoes? Today we get to know Mike Panella, a criminal defense attorney from Orlando. We'll learn about somebody who got arrested for breaking into their own house. We'll find out why it's generally not a good idea to put your client on the stand. We'll also hear about the hardest case he's ever worked on. Let's get into it. Here is what it's like to be a criminal defense attorney.

Mike Panella:
All right, you ready? You ready for the actual rule? Everyone want to know what the rule is here?

Dan Heath:
Public service announcement.

Mike Panella:
Here's the public service announcement. They don't have to read you Miranda every time they put handcuffs on you. But for a cinematic effect, they always seem to. And it's always a fun episode of Breaking Bad when Hank does that to somebody. But the bottom line is, no. It's only if you are, A, detained. So that is certainly an arrest, but it could be before that, if you're not free to go. But if you are free to leave and they're just sort of talking to you, then it doesn't really count. And it's only if you are in a custodial interrogation. And so the Miranda situation is, you have the right not to self incriminate. So if cops are asking you questions about some criminal event, and you are the suspect, and you are not free to leave, so all those things have to be true, then they have to read you Miranda before asking you questions. But if any one of those things isn't true, they can talk to you all day long without reading you Miranda.

Dan Heath:
So one of the things that I really wanted to know from Mike but was a little embarrassed about wanting to know, because this is such a 101 question, but I wanted to know just what is it like to represent people who have done really bad things?

Mike Panella:
I got over a long time ago the idea of, would you represent somebody if you knew they were guilty? These were kind of questions that I as a college student was asking when I knew I wanted to go to law school. I didn't ever think it was going to be criminal defense. And the federal public defenders happened to be across the hall from me when I was doing an internship in college. And I would ask these dudes like, "Hey," and these are really badass people. If you're a federal public defender, you're of the highest echelon in our field, in my opinion. I have an incredible amount of respect for these folks that are devoting their career to representing people that are accused of federal crimes that can't afford an attorney. And so they're serious. And those are hard jobs to get. And I would like, this little guy, I'm like 21 and I'm like, "Hey, how do you sleep at night if you know that you got somebody off? Or do you ever know if they're really guilty? And if you do, how do you defend them?" And these guys are just looking at me like, what the heck is wrong with this kid? He totally doesn't understand.

Dan Heath:
Well, how would you answer yourself at age 21 now?

Mike Panella:
I would answer it hopefully with the grace that a couple of these guys had for me, and the patience that they had with me. Because one of them in particular took me into his office. He just said, "Hey man, are you free this afternoon?" I said, "Yeah." He took me into his office, which was already super cool, and he happened to be a Christian guy, and my faith's really important to me too. And so automatically I didn't realize you could be... I honestly didn't know that you could be a Christian and a criminal defense attorney. Somehow in my mind, the way that I was originally raised, those seemed incongruent to me. For some reason, I just kind of thought criminal defense attorneys were just like scumbag liars, but this guy wasn't.  And he explained to me, "Listen, Mike, the fact of the matter is, people are accused of stuff all the time. And yeah, most of the time they're guilty of something. But that doesn't mean they're not a human being that deserves to have their voice heard. Doesn't mean that even if the law says we could throw them in prison for 15 or 30 years that we should, and it doesn't mean that they don't have some part of this story to provide context for why they did whatever they did." And then God knows the most abhorrent of all situations is someone's actually caught up in something when they're truly innocent, which by the way occurs. And we've got this presumption of innocence, meaning that the government or the state really has to prove their case against you. And thank God it's like that, because so often arrests are made when there is no provable case. And if there wasn't a defense attorney standing in between that person and the freaking wheels and mechanics of everything that's going on in the criminal justice system that's stacked against them in the first place, we would all be in a much scarier situation right now.

Dan Heath:
To be clear, not everybody Mike represents is some kind of hardened criminal. In fact, some of his clients are people accused of things that are downright ludicrous.

Mike Panella:
I was representing somebody on a burglary, as a matter of fact. He broke into his own house and got charged with burglary. There you go, friends. This is why it's a good thing you've got criminal defense attorneys. Because what the heck? This guy lived in this house with his girlfriend for two years, and she was cheating on him at the house, and he knew it.

Dan Heath:
So one day he decides to confront them.

Mike Panella:
All the doors were locked, so he takes a steel toe boot and breaks open the sliding glass door. It's his house too. Runs into the living room where there's the guy, and they get in a fight, as one would want to do, I suppose in this scenario.

Dan Heath:
So nobody is actually hurt ultimately, but the police are called and the guy's arrested. But here's where things get a little nutty. The prosecutor decides to charge the guy with burglary with a battery. And what are the stakes here? Like a misdemeanor or something?

Mike Panella:
Burglary with a battery in this state is a punishable by life offense.

Dan Heath:
Oh my God.

Mike Panella:
I know, I know.

Dan Heath:
But why would the prosecutors... I mean, don't they have better things to do? Why was this case of interest?

Mike Panella:
It's a question that I often ask them. "Guys, what in the world are you thinking?" And it's like, honestly, some of them are like, "Because we can." You've got good and bad in all professions, and you've got good and bad in criminal defense attorneys too. And you do have scumbags, by the way, in my beloved profession. But sometimes you've got scumbag prosecutors, and that just exists. But the problem when you're a scumbag prosecutor is, that's scary as hell because you've got a lot of power.

Dan Heath:
Panella says the charges were eventually dismissed, thankfully. Later in our conversation he told me about a different case where the stakes were far higher. Innocent lives had been taken, and he took the case of the person the state was holding responsible.

Mike Panella:
This is the most tragic case that I've ever been involved in, in my opinion. The way that it affected me personally, the way it affected my family, just everything about it. And I've been on some crazy cases that some would say are more serious or more high profile than this one. But this wasn't even that high profile. But to me, to this day, I don't even know, I think until the day I die, this case will upset me.

Dan Heath:
So here was the situation. There was a woman driving down a two lane road and she was behind another car that was going kind of slow, and so she got impatient and decided to pass by moving into the oncoming lane that was clear, and of course that was legal, so she passes the car. Just as she's getting back to her own lane, she's coming into an intersection. And right at that moment, a car that had been stopped there, pulled into the intersection and she slammed into the side of it.

Mike Panella:
I mean, the car literally pulled out in the intersection. We're talking about a two lane road with a random side street, and that side street, the view was blocked. That came out at trial, the other car didn't have a good view of the oncoming traffic because there was all this foliage there, and my client would never have known there was a car there because it would've been blocked by these trees. So yeah, it was just a horrible set of circumstances.

Dan Heath:
And then the collision happened and some people were killed, right?

Mike Panella:
An entire family. Yeah.

Dan Heath:
Oh my God.

Mike Panella:
A mom and a dad and a four-year-old boy. And at the time I had a four-year-old boy. And the case just was horrible, because in a normal scenario, this doesn't get charged as a crime. It's an accident. It's a tragic one, but what is my client guilty of? Speeding, which is a speeding ticket. I mean, it's literally it. I mean, and what are they guilty of? I mean, they're guilty of running a stop sign. I mean, this is how accidents happen. But that's a civil issue.

Dan Heath:
So your client wasn't drunk or anything like that?

Mike Panella:
No, no, no, no. Nothing. That's why I'm saying, this is something that could happen to a regular person. And I'll tell you right now, man, a lot of my clients are regular people that get caught up in something.

Dan Heath:
So this woman, what was she charged with?

Mike Panella:
Yeah, well, they charged her with three counts of vehicular homicide. So one for every person that died. So she was looking at 45 years for this incident that I always contended under the criminal law, it didn't fit vehicular homicide in my opinion. But my opinion's just that. In the state's opinion, it did. So they charged her.

Dan Heath:
And was it hard for you to decide whether to take that case or not?

Mike Panella:
No. It was just a hard case to do. It wasn't hard to make the decision. I knew I had to represent... this girl was going down. I had looked at the way the investigation was done, and the way the state was charging her and the facts of this case, and I'm like, she has every single thing stacked against her. I don't know, man, she compelled me. When I was talking to her on the phone, my heart went out to her. She's sitting here crying. She can hardly explain what happened because she was so broken up about the fact that the whole family had died. This isn't like some hardened criminal. She felt horrible too. And I'm like, all right, we got to do something here.

Dan Heath:
After the break, we'll hear how Mike handled the case and whether or not he decided to put the woman on the stand. Coming up. Are you following us on Instagram yet? Come join us to find out which careers are coming up on the show. We have sound bites from our guests. We have behind the scenes glimpses of what it's like to create the show. And trust me, it is glamorous. You can find us at What It's Like To Be podcast. Just hit that follow button and you'll be part of the tribe.

Welcome back. So Mike Panella agrees to take this vehicular homicide case, and I asked him what the most important decisions were that he had to make in defending this woman.

Mike Panella:
Well, in that case, so much of it came down to building trust with the client, because there were going to be difficult things that were going to have to happen. But how do you prove that to somebody that you've just met? And I think the only way is through action. So we got right to work on building this whole accident scene ourselves.
I went there. I went there and we created basically a controlled course. We roped off traffic. I recorded the thing myself. I mean, I'm talking about, I went there with a camera and I'm like, let me see what's going on. Because the facts of the case, and these little nuances about where the heck a tree is and how far is the distance from that stop sign to the intersection all went to the question of whether my client's actions were reasonable or whether they became reckless to the point where it was likely to cause death. And so what made the case so hard was that's a subjective question. It's how I can look at the case and say it never should have been charged as a vehicular homicide case, and the state can look at it and say it absolutely should have. Because these things turn on reasonableness. And should my client have known that maybe someone's going to bust through a stop sign it, was it reasonable for her to anticipate other people breaking a traffic law? Like, man, this trial went on for days. This thing came down to it wasn't a crime, it was a tragic accident. And I still believe that that's true. It just is.

Dan Heath:
And did she testify?

Mike Panella:
Yeah, she did.

Dan Heath:
And is that... I mean, a lot of times when we see legal stuff on TV, that's a big deal.

Mike Panella:
Yeah, it's a no-no. It's a no-no.

Dan Heath:
That we're used to from stories, is that a real dilemma? Do you think hard about whether to put the defendant on the stand?

Mike Panella:
Yeah, I do think hard about putting the defendant on the stand. And the answer to the question is don't. So that's the default position. Not because your client is necessarily lying, but let's just suspend disbelief for a second and just assume that every prosecutor's really, really, really effective at their job. Because most are. They're trained to be able to trip you up on cross-examination and they can ask leading questions.
But when I put her on the stand, it's not that I was afraid that she wouldn't do a good job, it was I was afraid because she was so emotional anyway and so shaken up even still about what had happened in the first place, that she may misspeak with a trained professional that is trying to get her to misspeak. And these people are designed to try to make you look like an idiot or make you look inconsistent. And if they can get you to look inconsistent or get you to look callous or get you to look a kind of way, even if it's not true, a jury may very well perceive that as you're lying. And if you're lying, then we're going to throw out the rest of your testimony. But yeah, I think the jury needed to hear from her. I think they needed to. I think they wanted to, and I think that it was a calculated risk.

Dan Heath:
And what happened with the case?

Mike Panella:
Yeah, she was ultimately acquitted of all three counts of vehicular homicide. She was convicted of misdemeanor reckless driving. And I applaud the jury. I think they made the right call.

Dan Heath:
How did it feel when you heard she was not guilty of the vehicular homicide charges?

Mike Panella:
She didn't understand. The way she felt, she's tried to explain this, I don't think she quite grasped what was happening. I don't know if you've ever been a defendant in a criminal trial where you're looking at if it goes the other way, you might go to prison for the rest of your life, but you're not usually in the right frame of mind when you're waiting for them to read. You're just so often just these people are not thinking clearly, and it's just so damn scary. I did hear that though, and I was just so thankful that yet another tragedy didn't occur. Because here's the thing, sending her to prison and convicting her of vehicle of homicide wasn't going to bring that kid back. And it's like, now we're taking a mom away from another. She is a mom too. All right, so okay, now we just orphaned another kid. What are we doing here? So I was extraordinarily relieved. But I'm telling you, Dan, the reason that this case just affected me so very deeply is because it's just not okay that that family's dead. It's just not. And there's no resolution in that criminal case that makes any of this okay.

Dan Heath:
Yeah. I mean, just thinking about what you do, it's just the emotional weight that you have to carry, this woman's life and her children's lives, your clients literally hanging in the balance. And then on the other side, even if you managed to keep her out of jail, it's like you have to make eye contact with the relatives of the family that was killed. How do you manage walking around day-to-day with that kind of crushing emotional drama part of your daily existence?

Mike Panella:
I think mental health is not something that's addressed enough in this profession, but it is a very serious issue. Substance abuse is a very serious issue for lawyers, especially lawyers that do this type of law. I am a huge advocate of counseling and regular therapy, whether a practitioner thinks they need that or not, if they are truly taking these cases on as if they're their own, then at some point there is a breaking point. And if you are not working on yourself and taking time for your own mental health, then I think that it ends up in some kind of personal tragedy, like almost a hundred percent of the time. Divorce, whatever substance abuse problems, then it's really, really pervasive in my profession. If you just pull up the statistics, you'll see what I'm talking about. So it's something that I'm now a lot more proactive about in my own life, that at the end of the day, there needs to be some recognition that if you're going to do your job effectively and well as a criminal defense attorney, you need to be healthy and whole. And you can't really be healthy and whole for your clients if your mental state is one where you are almost as if you are the one who committed all these crimes. Because you're not. You're there to be their advocate and their voice and their shield, yes. And in some ways to carry and share the burden with them. But if you can't figure out a way to mentally separate that from your own personal life, you are screwed. Because Dan, at the end of the day, I didn't kill anybody. But if I'm pretending in my own mind like I'm superman and that I did and that without me, I'm the best there is, that arrogance will kill you. That arrogance will kill your ability to be a good lawyer.

Dan Heath:
Mike, we always end our episodes with a quick lightning round of questions. So let me fire away here. What is a word or phrase that only someone from your profession would be likely to know? And what does it mean?

Mike Panella:
How about nunc pro tunc.

Dan Heath:
Nunc pro tunc.

Mike Panella:
Nunc pro tunc.

Dan Heath:
What in the world is that?

Mike Panella:
It basically is a Latin phrase that means backdated or retroactive to some other date. And so where that could come up in a criminal context is you might have credit for jail time or prison time, but you didn't get credit for it even though it should have been. So now we're going to give you a credit of 175 days or whatever, nunc pro tunc to last December. And so now you effectively have it because it's backdated to then. It can apply in other scenarios too.

Dan Heath:
What phrase or sentence strikes fear in the heart of a defense attorney?

Mike Panella:
Oh my God, "We the jury find-"

Dan Heath:
"I just got off the phone with the cops."

Mike Panella:
No, I'm used to that, man. I think the sentence or phrase is, "We the jury find the defendant guilty."

Dan Heath:
Oh, yeah. Well, just as a tangent from the lightning round, do you remember what was the most painful time you heard that verdict?

Mike Panella:
You just served me this, and I almost don't want to answer the question, because it just seems like such a douche-y thing to say. It has never happened to me, and I'm super thankful for that. But that is true. Certainly there were times where it could have, and I was very fearful about what-

Dan Heath:
Wait, do you mean you've never lost a trial? Or you've never lost a trial where you thought justice needed to go the other way?

Mike Panella:
I've never lost a trial. The only time that a jury said that was in the case we were talking about, where they had just found her not guilty of the vehicular homicide and then said, "We find her guilty of reckless driving." And I said, "Good for you. That's awesome. This is a total win." So okay, I guess on the misdemeanor. But no, it's true. Yeah, they had just acquitted her though.

Dan Heath:
That's quite a record.

Mike Panella:
Well, you can cherry-pick them too, Dan. I feel like I've been very fortunate with the cases that have come my way, and I feel like we make very good decisions about which ones to take to trial, and making solid decisions on advising folks when not to. But yes, anytime you go to trial, it could go the other way, and I've just so far not... I hate even saying all this. I'm finding some wood to knock on.

Dan Heath:
I can hear you knocking on wood even as we speak.

Mike Panella:
I'm literally finding some. Yeah.

Dan Heath:
And I'm also taking down your number in case I ever commit a crime, because I know who to know who to contact. Okay, last lightning round question. Who, and you have a lot of potential answers here, who's the most famous defense attorney, whether real or fictional?

Mike Panella:
If fictional counts, I think the answer is Saul Goodman of Breaking Bad and Better Call Saul Fame. I think in the world that we're existing in right now with those shows having such a huge impact on pop culture, I think everyone thinks Better Call Saul. If I'm permitted for another one, I think it's Atticus Finch, if we're talking about longstanding. It depends on sort of the way that we want to frame out that question.

Dan Heath:
Would you recommend this career to a young person?

Mike Panella:
So I get asked by young people all the time that want to go to law school if they should. And so I would take it a step back and say, would I recommend even being a lawyer to a young person? And if you don't truly have a passion for being a lawyer, it doesn't have to be like this kind, the kind that's on TV, like a criminal defense attorney or something.
But even just, there's all kinds of aspects of law that are super cool and kind of boring, in my opinion, but people are passionate about it, like transactional stuff and whatever. But if you don't really want to be a lawyer, then you should not go to law school. Law school's hard. Law school's hard on young people. Law school's expensive. And then you become a lawyer, which sort of sucks.

Dan Heath:
This is not a great advertisement for the field, Mike.

Mike Panella:
Yeah, I know, man. But it's like, remember what I was saying earlier? This thing can take a toll on you. And unless you are really going in there because you want to be a lawyer, because maybe you want to make a difference in the world, maybe you want to be a voice to the voiceless or be an advocate to somebody. Or maybe there's something that happened to you in your life, and that's what sparked a passion in you in the first place.
Unless you've got something like that, go into sales and make money that way. Because I'll tell you right now, taking on other people's burdens and doing this work can be very, very difficult. And you have to be intentional if you're going to go into it, especially if you want to be effective. So I think you've got to have a good reason. And you know what? If you've got a good reason, and if you're passionate about this work, then I can't think of a job that exists on the face of the planet that is better.

Dan Heath:
Mike Panella is the founder of the Panella Law Firm in Orlando, Florida.
I’ve been thinking about that vehicular homicide case ever since I talked to Mike and it’s one of those stories where there’s just no resolution that feels right. I mean, on one level, it was an accident, but the defendant’s impatience did play a role in the accident. And a family ends up dead. Do we want the driver in jail for that? That doesn’t feel right, but then, it also doesn’t feel right that this family is gone and no one bore the consequences. And, I guess, more to the point of this podcast, I was thinking about what all this is like for Mike: You know, he’s been hired by a client to do a job. And he did a good job. He saved her life. He kept her out of prison. But even in that victory there’s pain. I just can’t imagine what it’s like for there to be such huge stakes in your day-to-day work. I guess that’s why his passion for the work that came through toward the end there, why it’s so critical. You’ve got to have that deep wellspring of purpose to get you through the constant burden of being the last person, the last defender, standing between a client and a cage.

Folks, that is what it's like to be a criminal defense attorney.

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TV Meteorologist:
It kills my soul when someone says that. When people compare my forecast to their app, I'm just like, why am I here?

Dan Heath:
I'm Dan Heath. Thanks for listening.