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As I write this blog, I am on a flight from London, where I met with two clients – in two different matters – one involving a case in the United States and one involving a matter between France and the U.S.  I had the pleasure of working with fine lawyers from Great Britain, from France and from Israel, as we worked together on these two separate cases.

I have been to London several times through the years representing clients in international cases.  I am always impressed with the English barristers and solicitors with whom I work.  It is the same with criminal defense lawyers  in Canada, many European countries including Switzerland, Italy, Spain, Latvia, Croatia, in Singapore, South Korea, China, South Africa, Israel, Mexico, Colombia, Peru, Argentina and several Caribbean countries.  It is so interesting for me to practice international criminal law, as well as to represent people in Florida and throughout the United States in domestic criminal cases.  I am so fortunate to have represented good people in international cases all over the world, since 1974.  It is incredibly interesting to learn about the differences in the criminal justice systems in the various countries.

Each of the defenders with whom I have worked cared about our clients who are under investigation for possibly committing crimes or charged with committing crimes.

The similarities in each of the criminal justice systems are striking.  Although procedures differ, the essence of the criminal justice systems in the countries where I have represented clients are very much like here in the United States.  In speaking with my international colleagues, I find that rules and procedures in foreign countries are changing to make them more uniform and similar to United States’ criminal justice.

For example, I was recently talking with good friends and colleagues from Mexico.  They told me that more criminal trials will be conducted with witnesses being confronted in court, as opposed to have simply submitted written declarations which are not subject to cross examination.

You may be wondering why an American criminal defense lawyer is retained to represent so many clients in foreign countries.  Let me explain.  Very often, American citizens or legal residents are arrested abroad.  They and their families want a criminal defense lawyer who they know and trust to supervise the foreign case by working with competent and honest foreign defense counsel.

Sometimes, American citizens or legal residents are held in a foreign country for extradition to a third country or to the United States, a foreign citizen is arrested abroad and held in custody pending international extradition hearings because the person is wanted in the United States to face criminal charges which have been brought either by our Federal government or by a state in the United States which has charged him or her with a felony.  

And, on occasion, a person is a fugitive from justice from the United States (or a state) and seeks United States counsel to represent him or her often to arrange a return to the United States on the most favorable terms and for representation here before and after his or her return to the United States.

Handling international criminal cases for forty years has been a very interesting and rewarding aspect of my criminal defense law practice.  I am honored each time I am retained to help people who are facing the overwhelming power of a government looking to prosecute them.  Can you imagine what it is like to be that person’s lawyer – their defender, their protector, their champion?  It is an enormous responsibility and an opportunity in each case to use my experience and expertise to help someone who really needs help.

I love being a criminal defense attorney.  I could not have chosen a better profession for me.  It has been rewarding – every day, as I meet new people and am involved in new cases.  It has sometimes been difficult and frustrating, but well worth the effort.

 

 

 

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It is devastating, embarrassing and scary when you learn that you are being investigated for possibly committing a crime, and worse when you have been charged.  I understand.  As a criminal defense attorney, I have been representing people in those circumstances for forty years.

Sometimes, I think I have “seen it all”.  I have seen so many reactions by the people charged, their spouses, their families, their neighbors and friends, and their employers and co-workers.  In their “moment of need”, some are blessed with the strong love and support of people who care for them, while others quickly realize who their true friends are, as they are pre-judged and sometimes shunned by those they thought would have stood with them.

When all is said and done, a person’s honor and good reputation almost always ensure that good people will stand with them and be supportive.  It’s so important that an accused not “go it alone”.  Of course, having a dedicated, competent criminal defense lawyer ensures that you are never alone!

So, when you talk with your criminal defense lawyer, don’t be embarrassed.  We, as criminal defense attorneys, do not judge you.   We realize that good people make mistakes and exercise poor judgment occasion.  After all, we are only human.  Your lawyer will gather facts, apply the law, advocate on your behalf, and vigorously protect your Constitutional rights.

Be truthful with your criminal defense lawyer.  Tell him or her everything.  Then, he or she can get you he best outcome.  Trust your criminal defense lawyer – you won’t be disappointed.

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Almost every week in my criminal defense practice, I meet young men and women (and their anxious parents) who come to see me because they have been arrested. Usually, the charges are a direct result of poor judgment. Interestingly, many of these young clients are college and university students, frequently earning high grades and scholarships.

The arrests are particularly serious for young people, many of whom find that they have jeopardized everything – their ability to remain in school, scholarships and their futures. Depending on the charges and the results of their cases, they may fail to be accepted at graduate schools and will most certainly be faced with questions about the arrest and disposition of their cases when applying to regulatory agencies in virtually any profession (i.e., the Bar, medical boards, licensing agencies – state and Federal – healthcare, real estate, insurance, banking, finance, law enforcement, pilots, teaching – to name a few). 

I have represented students who were initially denied admission to the Bar and to other professions for having cheated in college; for a series of traffic violations (not only the more serious traffic related charges such a DUI or reckless driving); suspension from college for drug possession (including possession of a small amount of marijuana or illegal possession of prescription medication to “help alertness for studying and concentration”).

Stupidity is a common cause of young people being arrested. I have represented many good kids who were arrested for vehicular manslaughter, urinating in public, fighting in clubs, using drugs in public restrooms, having sex in public areas, jumping on baggage conveyor belts at airports, unlicensed carrying of concealed weapons (usually ill concealed), for smoking marijuana in vehicles, college dorms, fraternity houses, on beaches, or at construction sites; and for “smarting off” to police officers – most of whom are all too eager to arrest anyone who fails to show them the respect they think they deserve.

I have represented kids who were arrested for stealing from department stores, convenience stores, friends’ homes; for using stolen credit cards; using fake ID’s (including driver licenses) to gain admission into nightclubs; having drugs when they were screened at airports; wearing “brass knuckle” belt buckles and belt buckles with knives in them; for public drunkenness; causing disturbances on airplanes;  “running” toll booths; for graffiti; keying cars; for posting nude photos of fellow students on the Internet – and on and on…

After forty years of doing my best to “save” students and young people from the dire, often permanent consequences of being arrested, I urge them, including my five children, to stay away from trouble.

Use good judgment. Resist the temptation to “go along” with friends who are exercising less than mature, good sense. Nothing good happens in the early morning hours in nightclubs and on the street.  Be mindful about your future and ask yourself if the risk of an arrest is worth the conduct you are contemplating.

Jeff Weiner

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“Positive test results link defendant to crime”. “Drugs tested positive”. “The DNA was a match”. “We got our man”.

We’ve heard it, over and over again. Yet, in the past few years and as recently as today, we learn that many of our so-called crime labs are where crimes take place. In other words, where test results and evidence are phony and are used as evidence to convict people, some of whom are actually innocent.

Hard to believe, but true. For example, a chemist in a Massachusetts police lab has pleaded guilty to forging paperwork, faking drug test results, mixing samples and mishandling samples of evidence. The chemist handled over 60,000 samples. That’s right – sixty thousand samples! How many innocent people entered pleas of guilty or nolo contendere (or “no contest”) believing that they could not overcome the “scientific evidence” the prosecution had against them?

Earlier this year, the Texas Department of Public Safety discovered that their lab falsified test results in cases from 36 Texas counties since 2006 after examining evidence in over 5,000 cases. Innocent people were convicted and sentenced to years in prison. The lab manager wrote, ”We are sorry for any inconvenience”. Incredible!

Crime labs throughout the United States – including the “respected” FBI Crime Lab have been implicated in the unthinkable scandals. Just to name some confirmed examples, crime labs have been closed, employees (often not scientists) have been arrested, convicted, fired and forced to resign, and convictions overturned in Maryland, Illinois, Massachusetts, Colorado, Texas, Michigan, California, Oklahoma, New York, Tennessee, Montana, New Jersey, Oregon, Virginia, Pennsylvania, West Virginia, North Carolina, Wisconsin. And, yes, even the FBI lab and the U.S. Army crime lab, both Federal laboratories.

Fingerprint evidence was forged in criminal cases in New York and evidence was “fabricated” in drug and organized cases.

How can this be? How can this fraud and the resulting injustice happen all over our great country, year after year? Why does “law enforcement” authorities allow this to happen. and routinely look the other way? It’s because the cops, agents and prosecutors want to win their cases. Guilt or innocence doesn’t seem to matter to too many of the people that we entrust law enforcement to. It is, and has always been a national disgrace. Sadly, many judges don’t seem to care; they often render decisions to justify or call the clear prosecutorial misconduct “harmless error”. So, the police and Federal agents continue to violate our Constitutional rights, they usually get away with it.

So, what is the answer? Simple: elect Democrats as governors, senators and as our President who will appoint judges and Supreme Court justices who respect and will enforce our Constitutional rights. The recent Senate vote to allow a simple majority vote for approval of judicial appointees will be a major step in the right direction, at least for the next three years. The vote was the only way to get judges appointed to our Federal district and appellate courts since the Republicans blocked almost all of President Obama’s nominees to our Federal courts. No more!  The benefits will be felt for years to come.

 

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In 1984, the United States Supreme Court issued a terrible decision in “Strickland v. Washington”.  It was a case in which a convicted criminal defendant challenged his conviction, alleging that his criminal defense lawyer was ineffective.  The United States Supreme Court, in keeping with what most federal courts desire to do, i.e., uphold criminal convictions, held that in order for a criminal conviction to be reversed, the defendant who was convicted in the trial court – who was attacking his lawyer’s performance -must show that the outcome of the trial might well have been different had the lawyer performed to a higher standard.

As you can imagine, since such an analysis is almost totally subjective, the federal courts, and many state courts, use every possible presumption that the trial attorney was competent and minimally effective.  The injustice is clear in many cases.  Sometimes lawyers are simply incompetent or lazy.  There are some cases where lawyers have actually fallen asleep during portions of trials, and yet the convictions are upheld.  I know that is shocking to believe, but it is true.

It is common for criminal defendants who are convicted to appeal their convictions.  Once their initial or direct appeal is concluded, a large percentage of convicted persons who are in custody allege that their trial lawyers were incompetent or ineffective, or grossly, willfully, wantonly negligent, and that they did not receive a fair trial.  So, the courts, especially the federal courts, are used to receiving these petitions on a daily basis.  Typically, a judge’s law clerk will review these petitions with a presumption that they are baseless.  Every once in a while, however, a case is so egregious that the court will reverse a conviction or send a case back to the trial judge for consideration of the claim of ineffective or incompetent representation.

My advice:  get the best possible criminal defense lawyer you can to represent you and be certain that he or she is listening to what you have to say so that you feel that you will have received the best possible representation.

Having practiced criminal defense law for 40 years, I can tell you that there are many decisions that a criminal defense lawyer makes based on tactical and strategic considerations that are not subject to a review by a higher court.  Nevertheless, strategy and tactics are one thing.  Incompetence is another.  Be certain that your lawyer is competent and experienced in the type of case that you are retaining him or her for.  Talk with your lawyer frequently.  Express your concerns and be certain to be totally candid and thorough when explaining your case to your lawyer.  It makes the difference since the odds of having a conviction reversed on appeal based on incompetence or ineffectiveness of your trial lawyer are very slim.

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This week, we saw yet another example of a federal appellate court reversing a trial judge who tried to do the right thing. Of course, I am referring to the case out of Texas, in which the Republican controlled Texas state legislature passed a law drastically cutting back on women’s rights and women’s freedom regarding their ability to go to women’s clinics that provide women’s medical services, including abortions.

Unfortunately, the federal appellate courts in most of the circuits throughout the country are notorious for reversing courageous district court judges who render opinions that are favorable to individuals. The more Republicans who are on the various appellate courts, the more likely it is that decisions by district court judges or trial court judges that expand or protect individual rights will be reversed.The clear message to the trial judges is: follow the rules and don’t vary, whether its is on lenient sentences, upholding a constitutional right, or otherwise doing the right thing.

It is extremely unfortunate that our appellate courts, which used to lead the way in providing constitutional protections in virtually all areas of the law, now do just the opposite.

I remember in my early days as a lawyer in the 1970’s when we would look forward to reading the appellate court decisions, knowing that they would vindicate individual rights and constitutional rights. Now, it is just the opposite. We worry and are concerned about every federal court case, knowing that, for the most part, they will reverse righteous decisions of trial judges.

So, the message is this: win at the trial court level. Resolve your case as early as possible, and don’t ever expect federal appellate courts to do the fair or right thing.  This is especially true in cases involving convictions in criminal cases.

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This week I had the pleasure and honor of teaching at West Point, the most prestigious military college in the world. A couple of years ago, Forbes Magazine named West Point (so named because it is located on the western point of the Hudson River) the “Number 1 undergraduate college in the United States”. The admission process is grueling, with only the most qualified students – all of whom are nominated by a United States Senator or Member of Congress – being admitted. Our government pays all expenses for a four-year college education coupled with intense military training all year and in the summers of the 47-month experience at “the Point”. When the cadets graduate, they are commissioned Second Lieutenants in the United States Army. In return for the education and training (valued at over $400,000), cadets commit to serve 5 years active duty and three years in the Army Reserve. The cadets are patriotic young men and women who are taught to lead with honor and integrity.

I was invited to guest lecture on Constitutional Criminal Law and Procedure to cadets taking law classes. The United States Military Academy does not have a law school; however, cadets can major in law taking many legal courses including, of course, military law.

During my career as a criminal defense attorney, I have represented many members of our Armed Forces, both officers and non-commissioned soldiers, sailors, Marines and Coast Guard members. I have found the military courts, generally (no pun intended) to be fair; although these days, as the military releases more men and woman and as the services get smaller, there is much less tolerance for violations of military (and civilian) law.

I taught upper classmen and women – juniors and seniors. I was very pleased to see the diversity amongst the Corps. The cadets asked very good questions and we had robust discussions in each class as we discussed individual rights, Constitutional protections afforded by our Bill of Rights, and some differences between the civilian courts and military tribunals. We talked about the importance of military defense lawyers representing their clients vigorously and not being intimidated by higher-ranking military judges and jurors. I told the cadets how much I respect the military lawyers assigned to represent the accused terrorists who are being held in Guantanamo since, I believe, that their determined and passionate defense of their clients, including filing motions attacking the “evidence” obtained by torture – including multiple waterboardings – will almost certainly negatively affect their careers and future promotions.

We discussed the presumption of innocence and the fact that an accused never has to prove that they are innocent; the burden is always on the government or military prosecutors to prove guilt beyond a reasonable doubt. After all, the cadets, and all of our volunteer Armed Forces, put themselves in harm’s way to protect our way of life, including our system of government and law, which seeks to protect certain inalienable rights guaranteed by our Constitution.

The cadets at West Point were attentive and very involved in the classes. They were genuinely concerned about the conflicts between individual rights and the poets of the government.

I have been privileged to teach United States Navy attorneys, and lawyers and law students all over our great nation for the past 35 years. This year, I have had the pleasure of teaching at Tulane University School of Law in New Orleans and at the Stetson University School of Law in Gulfport, Florida and at legal seminars in Las Vegas, Aspen, and Key West. I love teaching law; I am so fortunate to have been able to practice my chosen profession for the past 40 years. Teaching is a great way to “give back”.

I’ll admit I may be a bit biased since one of my four sons is a third year cadet at West Point, however, I have no hesitancy in saying that I have renewed faith in our time ahead, as I see these fine young men and women who will be some of our best leaders long into the future. I am invigorated by their zeal and dedication, and very much appreciate the opportunity to have taught at West Point.

Jeff Weiner

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JonBenet Ramsey was the 6-year old beauty pageant contestant who was murdered in 1996 in her home in Boulder, Colorado.

As her parents grieved, the media decided that the parents were guilty of killing their daughter. Mr. and Mrs. Ramsey and their son were vilified although there was no evidence linking them to the crime. The lack of evidence did not stop a Boulder (not so) grand jury from voting to indict JonBenet’s family, accusing them of knowingly and recklessly placing JonBenet in a situation that led to her murder.

As I have written before on this site, there is a saying: “a grand jury will indict a ham sandwich”. In other words, a grand jury is inherently unfair, one-sided and totally lacking in fundamental fairness to the accused and will indict virtually anyone for any crime, even when no evidence exists.

Fortunately, in an extremely rare and commendable act of professionalism and courage, Mary T. Lacy, the then District Attorney, refused to file charges against the Ramseys. Ms. Lacy later wrote to John Ramsey, JonBenet’s father, stating that the Ramsey family was “vindicated”  and that “no innocent person should have to endure such an extensive trial in the court of public opinion”.

Of course, the fact that DNA testing proved that JonBenet’s parents did not commit the murder, the media continued to suggest that they were guilty. It was shameful and disgraceful. The presumption of innocence did not apply to the Ramseys. The letter was sent in 2008; Mrs. Ramsay passed away in 2006.

I am reminded of the sad and disgraceful case of the late Richard Jewell, a security guard (and former sheriff’s deputy) at the 1996 Summer Olympics in Atlanta, Georgia.  Mr. Jewell was a genuine hero after pipe bombs exploded during the summer games.  He rushed in, with no regard for his own safety, to help others escape injury and death.  Remarkably, after initially declaring him a hero, the media decided that Richard Jewell was the likely bomber, as soon as it was learned that the FBI were investigating him.  For almost three months, Richard Jewell was publicly “trashed” on a daily basis.  Finally, the United States Attorneys office issued a letter to him, stating that he was not a target of the federal criminal investigation and several lawsuits against specific media companies were settled with payments to Mr. Jewell.  Former Georgia Governor Sonny Perdue in 2006 made a public statement thanking Richard Jewell for saving lives at the 1996 Olympics.  Richard Jewell was 44 years old when he died.

The sad fact is that innocent people are frequently wrongly accused of heinous criminal acts.  And although they may be eventually vindicated – though often they are not –  their lives may be irreparably ruined as a result of the false accusations.  It is naïve to assume that prosecutors and judges are always interested in fundamental fairness for an accused person.  Too many prosecutors are only interested in “winning”, even though their ethical duty is to ensure justice and not merely to obtain convictions.  After 40 years as a criminal defense lawyer, I have sadly found that too many judges – state and federal – simply go along with whatever the prosecutors want to do in order to move cases along.

Your criminal defense lawyer is all that stands between you and the punishment for a crime – whether you have committed it or not. While I am convinced that a good and experienced criminal defense lawyer will do everything possible to keep false accusations from becoming public, it is often impossible.  Then, your lawyer should be able and willing to represent your interests well with the media, using discretion and proper language so that the public, when reading or hearing about your case, will immediately be reminded of the presumption of innocence and the fact that being accused of a crime does not mean that the person is guilty of the charge.

Jeff Weiner

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Many people, lawyers included, ask me what it was like to argue a case before the United States Supreme Court.  My answer usually goes something like this.  It was a great privilege and honor to argue before the High Court.  My case involved the Fourth Amendment.  It was a search and seizure question involving consent to search a car.  We had won the case in the trial court (the circuit court) in Miami.  The State of Florida through the Miami-Dade State Attorney’s Office appealed the case through the Third District Court of Appeals (which is located in Miami, next to Florida International University).  The state court of appeal agreed with our argument in the trial court and affirmed the trial judge.  The State of Florida then appealed the case to the Florida Supreme Court, which agreed with our position and that of the two lower courts.  The State of Florida, through the Attorney General’s Office, decided to ask the United States Supreme Court to hear the case.  They did so by filing what is known as a petition for writ of certiorari.  The Supreme Court hears only a tiny percentage of the cases that they are asked to decide.  When the Supreme Court granted the state’s petition for writ of certiorari, the defense knew it was “bad news”, since the very conservative United States Supreme Court did not, in our opinion, agree to hear the case simply to affirm the Florida Supreme Court.  The Court, then led by Chief Justice William Rehnquist, was well known for favoring the police over individuals.

 I argued the case against two prosecutors.  Representing the United States, was John Roberts, now the Chief Justice of the United States, who was then the Deputy Solicitor General of the United States, and also against the Deputy Attorney General from the State of Florida.  The oral argument was very interesting.  Each of the Justices but one asked me questions during my presentation. Should you wish to hear the argument in its entirety, go to www.jeffweiner.com and click on the link to hear the argument.

 Unfortunately, as expected, the Supreme Court reversed the Florida Supreme Court and held  that a consent to search a car gives consent not only to search the car, but also all closed but unlocked containers in the vehicle.  Even though, I believe, when a person gives consent to search a car, they are only giving consent to search the car and not consenting to a search of their purse, briefcase, backpack or even a paper bag which is rolled up.  The majority of the Supreme Court disagreed and gave the police new powers and authority to search a vehicle, expanding the scope of what they may lawfully search and allowing them to do so beyond that for which consent was given.  The decision, in my opinion, was one of many, which have eroded our individual rights in order to give more power to the police.  I am not anti-police, but I am very much pro-constitutional rights and the decision in Florida v. Jimeno was wrong and unnecessary.  But, rulings of the United States Supreme Court are the law of the land. Whether we like the decisions or not, they must be followed.

John Roberts was courteous and a polite and a pleasure to spend time with.  All the Justices on the Supreme Court were extremely attentive and respectful.  They were well-prepared and asked probing and thoughtful questions.  To my surprise, after the argument was concluded, I was approached by a justice of the Florida Supreme Court who was in the Supreme Court gallery as a guest of the High Court during my oral argument on the case.  The Florida justice was very kind and indicated that he thought we would win the case and that the Florida Supreme Court ruling would be upheld.  But it was not to be.

I love being a criminal defense lawyer and representing people, not only in trial courts, but on appeals as well.  I am convinced that a criminal defense lawyer who argues appeals, in addition to representing clients in the trial court, gains a better understanding of the dynamics of representing people and is a more complete lawyer.  I have enjoyed arguing cases on appeal throughout the United States and am grateful for the opportunity to have done so.  Only a tiny percentage of lawyers actually argue cases before the United States Supreme Court.  I am fortunate to be one of them.

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My practice, being based in South Florida, affords me the opportunity to see foreign language interpreters at work in court on a daily basis.  Although Spanish is the second most popular language in South Florida, there is a constant need for interpreters who speak other foreign languages so that a witness or a defendant can be properly understood in court.

Interpreters are sworn to interpret truthfully and accurately on a word-for-word basis.  Interpreters do not have the right to explain or to embellish testimony.  Their job is difficult but clear:  they must be impartial and they must say exactly what the witness or defendant is saying, in the first person.  For example, an interpreter cannot say “he [the witness] said….”

In federal courts, there is legislation known as the Court Interpreters Act, found at 28 United States Code Section 1827.  This law states that interpreters must be appointed in certain situations, as a constitutional right of the accused.  While the trial judge has some limited discretion on whether to appoint an interpreter, as a practical matter, the judge has an absolute obligation to appoint a foreign language interpreter – or a sign language interpreter – where a defendant has difficulty with the English language.

In my career, I have had the pleasure of trying many cases with co-counsel who were native speakers of the language being interpreted.  Unfortunately, on too many occasions, though the interpreters were certified by the federal courts, their interpretations were not accurate according to the native speaking attorneys.  I have seen objections made to portions of interpretations which were not accurate, or which might have been accurate but did not convey the meaning or essence of what the witness was testifying to.  In such situations the interpreters almost always insisted that their interpretations were accurate.  Yet, when the foreign language speaking attorney explained to the judge – usually out of the presence of the jurors – the judges who are really interested in fairness, have often allowed the matter to be clarified by the attorney re-asking the question in a different manner so that the witness’s meaning is beyond question.

Although almost all  court interpreters are well-meaning, skilled and ethical (my wife is a certified interpreter), they are human and can make mistakes and, in some cases, can change the outcome of a trial through a conscious or unconscious misinterpretation or misplaced emphasis.  That is why I always want a native speaker present as part of my defense team, so that I can be advised as to any problems or misinterpretations and correct them quickly.  This is essential in any case in which an interpreter is used, since anything said by the interpreter is considered testimony by the witness or defendant, and can be quoted directly or argued during closing arguments.  Defendants are not permitted to bring their own interpreters to interpret for the court.  Of course, they may have their own interpreters present.  But the “official” interpreters are usually employed by the court and always appointed by the court.

Every facet of a trial is important.  When English is not the native language of a defendant, it is critically important that the interpreter be a consummate professional so that the defendant is not further prejudiced due to his or her inability to speak English.  A good criminal defense lawyer understands this and will protect your rights during every phase of a trial.