Paul Puri & Associates San Francisco Criminal Defense Law Firm

    A skilled criminal defense attorney can have a tremendous impact on what happens to a case, including getting the case dismissed.  The primary methods of engineering a dismissal are as follows: (1) pre-filing intervention to effect police reports and investigation in the client's favor; (2)  defense investigation that uncovers key facts completely undermining the prosecution's case; and (3) uncovering an error in the prosecutor's legal analysis of the evidence and procedure leading to dismissal motion (legal pleading).

        (1) DISMISSAL STRATEGY ONE:  PRE-FILING INTERVENTION

    When a client calls the law office when he or she believes that an investigation has commenced, the criminal attorney can have the greatest impact on the outcome of the investigation, and prevent charges from issuing.  The attorney can also implant weaknesses in the prosecution theories, such that, if charges do issue, the case would stand on weak legs.  It is a fact of modern life in our prosecutorial society that the bias of law enforcement is to recommend charges.  Once the law enforcement agency believes a crime has occurred, its agents will tend to look for ways to make evidence appear criminal.  They will couch their descriptions of events in the police reports in incriminating language.  They will make statements like, "Suspect A was hesitant to answer, leading me to believe he was evading my question, and his answers appeared inconsistent."  Unless you are represented, it is extremely dangerous to utter a single word to any law enforcement agent.

    When law enforcement agents interrogate suspects, they make obvious use of ploys, gimmicks, and mind games attempting to extract the answers they want.  The will lie, and say, "we know you did it; we have evidence," when they don't; or they will say, "your friend gave you up," when he didn't. Another tactic law enforcement uses is to ask a question using part of a suspect's previous answer coupled with their own assumption twisting the meaning of the answer.  For example, the suspect may say, "I wouldn't say I hit him; I just like... ran into him."  Before you can say "on accident" the agent will interrupt you with the question, "what were you thinking when you ran him down? You hate him, admit it; he wasn't nice to you; he deserved it, right?"  While you stutter and stammer searching for which rapid fire question to answer, the agent will accuse you, "don't be hesitant, if you are innocent you'll tell the truth, and I think you are hiding something; I don't think you have any credibility.  The only way to clear this up is for you to come clean and tell me why you ran him down."

    These tactics are not well designed get accurate information; they are better suited to coercing pre-selected answers.  Therefore, it is imperative for a suspect under investigation to speak to law enforcement only through an attorney.  From this lawyer's perspective, no person has ever helped his or her own situation by speaking for themselves to law enforcement.  Remember, the government is not looking to find out the truth; they are looking for evidence that meets their agendas.  If evidence could be misconstrued to make a person look guilty, even if that person is factually innocent, that person will face charges. I know from listening to recordings of police interrogations that even seasoned inspectors look at their job as "a game."  The game is cat and mouse.

    What a skilled attorney can do at these early stages of a case is to interrupt the police officer while he or she is conducting interrogations. He will be able to make sure that your answers come out succinctly and clearly, rather than choppy.  He will be able to prevent surprise tactics from tripping you up.  Because an attorney is present, they will not be able to use sleep deprivation, hunger, thirst and the urge to use the urinal against you.  More importantly, the attorney will ensure that facts helpful to his client are placed with clarity in the incident reports and interview recordings.  These methods can undermine the underhanded tactics designed to incriminate you.

    The best way to defeat a prosecution is to nip it in the bud.  Early attorney intervention during law enforcement investigations can prevent charges from issuing in the first place.

        (2)   DISMISSAL STRATEGY TWO:  DEFENSE INVESTIGATION

    There are times when law enforcement do not question the suspect, and charges issue without the client's knowledge.  The most common situation is where someone is arrested and learns very little about the investigation into the case.  At this time, when an attorney is retained, swift action and field work is required.  The most effective means of defeating a prosecution once charges have issued is to investigate facts that would undermine the basis for the prosecution.

   As soon as the defense attorney is retained, it is imperative for him to conduct extensive interviews with the client.  When leads are uncovered, the attorney should follow-up on them.  One of the best opportunities to be most effective presents itself when the defense attorney learns there may be a witness available who has information that could completely discredit a key prosecution witness. Prosecutors fancy themselves as winners, and believe they are supposed to win every case.  The possibility of losing a case as a result of an embarrassing open court impeachment of their key witness, results in dismissals.

    Take the example of a fraud prosecution against the employee of a business: the prosecution's case hinges on the testimony of the business owner who detailed all the money stolen by the client.  Investigation uncovered an extramarital affair the business owner was having during the period of time his alleged losses occurred.  Once the defense was able to corroborate the affair it was able to theorize that the business owner was spending his business money on his extravagant rendezvous.  The potential of this information completely undermines the prosecution's case and resulted in a dismissal.

    Another example is the case of a police chase where the client incurred charges of evading the police.  The prosecution had to prove that the client knowingly evaded the police.  Defense investigation uncovered a medical examiner's report that the client had a methamphetamine in his blood at the time of the arrest.  If the client was high at the time of the arrest, then he may not have known that he was being pursued.  His actions may have been charged under some other theory, but they weren't.  Because he was charged with evading, the charge was dismissed.

    Defense investigation is the most common and very effective way to achieve a dismissal of a prosecution case.  Prosecutors hate to lose, and nothing deflates the prosecutorial blimp faster than uncovering evidence that would not only make a prosecutor lose, but cause embarrassment as well.

        (3) DISMISSAL STRATEGY THREE:  LAW AND MOTION

     The third method an attorney can use to get a case dismissed win a dismissal motion, either pre-trial, during trial or on appeal.  This area of practice is highly technical, and involves constitutional law and the law of criminal law, criminal procedure and evidence (among other things).  Suffice it to say that a high-profile or serious case can have a long life, where the prosecutors and law enforcement agencies take many actions.  Each action the government makes creates another potentional legal basis for a dismissal.

    Demurrers, motions to suppress, motions to dismiss for prosecutorial misconduct, violations of the Discovery Act, violations of the Speedy Trial Act, violations of constitutional rights, etc., are all viable dismissal opportunities in any case.  Skilled and knowledgeable criminal defense attorneys are required to spot the issues and exploit them. This area of the law is so involved it would take reams of text to describe it all.

    In sum, dismissals come in a variety of recipes.  The kind that "separates the men from the boys," so to speak, and distinguishes the everyday lawyer from the high-powered criminal defense attorney is the kind that involves counter-investigation and attorney intervention into the development of the evidence.  Good criminal defense attorneys know the law.  Great criminal trial attorneys see what others do not; they see the future.  Great criminal defense lawyers can visualize their cross-examinations and closing arguments even when the only information about the case is a call from a concerned client.  High-powered criminal trial lawyers spot the weaknesses in the opposition's case, can foresee how weaknesses will manifest, and knows just the time to exploit those weaknesses. 

Posted by attorneypuri at 08:34 PM | Permalink | Comments (0) | TrackBacks (0)

A recent U.S. Supreme Court case, called Crawford v. Washington (2004) 124 S.Ct. 1354, has dramatically impacted the outcomes of many recent domestic violence prosecutions. Since the Crawford case, prosecutors find it far more difficult to admit an alleged victim's (a.k.a. complaining witness') tape recorded statements when he/she refuses to testify at trial, or otherwise becomes unavailable (i.e., if she leaves the jurisdiction.)

Prior to Crawford v. Washington, the world will remember, California had enacted Evidence Code section 1370, otherwise known as "The Nicole Brown Simpson Hearsay Exception." This exception arose, because Nicole Brown Simpson had been killed, and her 911 calls about O.J. Simpson were hearsay. "The Nicole Brown Simpson" hearsay exception allowed the prosecution to admit 911 tapes and other written or recorded statements regarding prior violence or threats of violence made by the defendant, if the victim became "unavailable" at trial (either due to death or because she later refused to testify).

Now for a little background on legal terminology. Most people know that "hearsay" is not admissible in trial. However, most people don't know what "hearsay" is.

The legal definition of hearsay is as follows: Hearsay is an out-of-court statement or utterance, offered for the truth of the matter asserted. HUH? Translation: When a lawyer tries to introduce what someone said as evidence of a fact in court, if that someone made the statment out of court, then that statement is hearsay and the lawyer cannot use the statement to prove whatever he/she is trying to prove. In law there few hard and fast rules, and there are many exceptions to the "hearsay rule." This article is about just one of them.

For example, let's consider the typical domestic violence prosecution where the "Nicole Brown Simpson" issue comes up. In fact, this fact pattern comes from my most recent domestic violence trial.

Mr. and Mrs. Jones had a very heated argument over marital fidelity. In a fit of rage, Mr. Jones strikes Mrs. Jones about her head area. Mrs. Jones leaves the house, and calls 911 when she gets to her mother's house. The police go to Mr. Jones' house and arrest him. A few days later, an inspector with the police department called Mrs. Jones and tape record their conversation. During this taped conversation, Mrs. Jones tells the story about the argument and the physical violence. The office of the District Attorney files domestic violence charges against Mr. Jones. Mr. and Mrs. Jones mend their relationship while the court proceedings are pending. At the trial, it comes to the attention of both attorneys that Mrs. Jones no longer wants her husband to have penal repercussions to his misbehavior. Then, at trial, the prosecutor announced that Mrs. Jones refused to testify. Mrs. Jones cited her job duties as the reason.

Now, prior to the Crawford case, prosecutors would use Evidence Code section 1370 to try and get taped conversations between the alleged victim and police investigators or 911 operators into evidence over the defense attorneys "hearsay" objection. Until the Crawford case, it would work. In fact, prosecutors would give pre-printed notices to defense counsel of their intent to offer any recorded statements into evidence, even if the alleged victim did not show up to trial. Things have now changed dramatically.

In our fact pattern, when Mrs. Jones announced to the prosecutor that her job prevented her from attending court, the district attorney had no choice but to dismiss the case entirely. Mr. Jones was free from the great burden of a criminal trial, possible conviction, jail and probation. For good or ill, he was made a free man, due almost entirely to the recent U.S. Supreme Court decision in Crawford v. Washington.

The Crawford case stands for the basic proposition that the Sixth Amendment Confrontation Clause requires that a defendant in a criminal prosecution has the right to confront his accusers and witness against him with cross-examination. It sounds odd that a very recent Supreme Court Case would enact the Sixth Amendment Confrontation Clause, but over the centuries numerous exceptions had very much eroded this fundamental constitutional right. Basically, the Crawford case affirmed the common law exceptions to the "hearsay rule" that require the witness be unavailable and the statements to be non-testimonial (meaning not intended to be used in a criminal trial).

For example, a 911 recording of a dead guy that contains the statement "Oh my God. Joe Shmoe shot me in the stomach," would probably fit an exception to the hearsay rule under Crawford, because the dead guy is unavailable due to being dead, and his statement is not "testimonial in nature," meaning he probably called 911 to get medical help, and not to establish the indentity of his killer for the government lawyers. So, some 911 tapes may still get in, although some believe that they should not get in under California Evidence Code 1370, which some legal scholars believe to be invalidated as a result of Crawford. All criminal defense lawyers expect a great amount of litigation over the meaning of the Crawford case.

In sum, this article was about domestic violence prosecutions, not homicide prosecutions, and the impact of a a recent Supreme Court case on domestic violence prosecutions. Many domestic violence incidents end in someone being killed, but then one is confronted with a homicide prosecution, not just a domestic violence prosecution. It appears that new constitutional case law will change the course of domestic violence prosecutions where the alleged victim is still alive but refuses to testify, for whatever reason (usually because he/she has mended the relationship with the accused assailant/significant other).

Posted by attorneypuri at 08:33 PM | Permalink | Comments (0) | TrackBacks (0)

In California, "Expungement Law" is actually a set of post-judgment remedies available to the following sets of circumstances:

• Petition to "Seal & Destroy" Arrest Record(s). Where you were arrested, but not convicted (either because the case was dismissed, or because you were found "not guilty" by a judge or jury), and you are factually innocent of the charges. (California Penal Code section 851.8)

• Petition to Expunge Criminal Conviction. Where you were convicted of a felony or a misdemeanor, probation was completed successfully, and you did not serve time in state prison (sometimes with this petition, it can be appropriate to ask for early termination of probation). (California Penal Code section 1203.4)
  

• Petition for Charge Reduction. Where you were convicted of a felony, but due to evidence of your rehabilitation, you ask the judge to reduce a felony to a misdemeanor (often it is a good idea to ask for this in conjunction with a petition for expungement). (California Penal Code section 17(b) )

• Petition for a Pardon. Where you served time in state prison and parole was terminated succsessfully, you ask the Governor to wipe your slate clean. (California Penal Code section 4852.01)
  

Each of these petitions involves it's own set of procedures, please contact your attorney regarding any questions that you may have.

Posted by attorneypuri at 08:32 PM | Permalink | Comments (0) | TrackBacks (0)

Misconceptions- Public Defender

There are many misconceptions about the legal system that ought to be cleared up. One of the most pervasive and invidious is the common belief that lawyers from the various Offices of the Public Defender are "not real attorneys," or are "Public Pretenders." I would like to take this opportunity to dispell this misconception, and help my audience understand what they are getting when they hire a private attorney versus accepting a public defender, for those that are eligible for a public defender, but may also be able to hire a private lawyer.

The primary difference between Public Defenders and private criminal defense attorneys is the caseload. Public Defenders, in general, are very overwhelmed and have very high caseloads, sometimes approaching 200-300 cases per year. Such high caseloads are not within their control. County budgets fluctuate from year to year, and so do rosters. From my observations, an excellent public defender's office like the one in San Francisco or Alameda Counties are typically unable to reduce caseloads to a level on par with the private defense bar.

The benefit of a public defender is apparent. When a case can and should resolve quickly and efficiently, i.e., shoplifting cases, traffic cases, typical dope possession cases, etc., the public defender usually has connections with county support organizations, treatment programs, counseling, etc., that are usually farther removed from the private attorney's practice. Their experience with volumes of similar cases usually means that the least painful means of resolving a case will be available to you. Additionally, most public defenders are excellent trial attorneys, at least the ones that are experienced with trials. I have seen public defender trial deputies achieve spectacular results in very tough cases. You don't always get what you pay for.

The drawback to being represented by a public defender is that you do not generally get the attention that a good private attorney can give you. Due to budgetary concerns you will also not have access to all the investigators and experts to which a private attorney can connect you. Additionally, due to their limited time, there is the chance that some stones will not be turned.

Misconceptions - Private Attorney & The Retainer Agreement

The primary benefit of your relationship with a private defense attorney is the retainer agreement. A true retainer agreement will reserve 100% of the attorneys time to devote to your case, which is why retainer agreements are so expensive. A truly professional criminal defense attorney must balance the needs of his or her life with his or her professional obligation to each client. The private attorney is in a position to contract with a client at a price which can both maintain the lawyer's office at a professional standard, and allow the attorney to hire experts, investigators and other support professionals to shed light on a case that would otherwise not emit.

The flip-side of this relationship is an understanding that the private criminal defense lawyer should turn away cases, where taking on cases would cause the attorney to violate his or her duty under the retainer agreement (the duty to be totally available for the case and client). It means that that the defense attorney cannot be greedy and become overloaded. It also means that the client had better hold up his or her end of the bargain and post the monies required to handle the case from beginning to end. Thusly, professional integrity is assured.

In this day and age of price wars and capitalism, many criminal defense attorneys compete in the marketplace based on price. As such, some attorneys promise to resolve a case quickly and cheaply, sometimes for a few hundred dollars. Then, to make ends meet, the low priced private attorney is forced to increase his or her caseload, sometimes beyond a level that is ethically responsible.

Additionally, potential clients believe that attorneys are fungible like a market comodity, such that one attorney can get the result of another. Or perhaps, due to inexperience and lack of access to information, potential clients are not willing to risk significant money on an attorney without trying him out first or without referrals. In any event, the true retainer agreement, they way it was originally used, is becoming a thing of the past. In this case, it's not for the better. Attorneys are spreading themselves thinner, and clients are not receiving better representation than they would from the public defender.

The moral of the story is that if a person is accused and charged with a crime, and if he or she has assets, he or she should put of those assets toward the retainer agreement. By doing so, he or she has effectively reserved the lawyers time, skills and energy toward the successful resolution of the case. By pitting the attorney against other low-price attorneys, the client is reducing the value of his or her life, and, at the same time, losing mind-power and talent. If the client is unable to support the true retainer agreement, then the attorney should counsel the client on the lower cost options of resolving the case, and be specific in agreement about what will and will not be done on behalf of the client. Additionally, the client should not poo-poo about having to sell assets to retain the attorney. Remember, being charged with a criminal case is not like having to go the dentist or the dermatologist. It's more like having to undergo life saving surgery, and our society does not offer criminal defense insurance. Otherwise, the client should be counseled to seek out the Office of the Public Defender.

Posted by attorneypuri at 08:31 PM | Permalink | Comments (0) | TrackBacks (0)

Here's a hot tip you can use when you challenge a traffic ticket, and take it to trial:

When the officer begins to read from his report, object and request that the judge "admonish the officer not to read from his police incident report, as it is hearsay."

Even in a traffic ticket trial, where people commonly represent themselves, the law of evidence applies. If the officer can't testify from memory about the event, you have a strong chance of beating the ticket, because there usually is no physical evidence in a traffic infraction trial, just testimony from the officer.

If the officer can't remember, then the state will have a hard time meeting its burden of proof, which would make you "not quilty."

Posted by attorneypuri at 08:30 PM | Permalink | Comments (0) | TrackBacks (0)

I have to think that one of the most commonly wondered about questions that people have in their minds is "how does a lawyer win a criminal case?" For example, what is a legal strategy? What kind of preparation helps a case? What does it mean to be effective in court? What does "winning" mean? This article will illustrate my personal philosophy about winning cases. The following personal philosophy is not entirely my own. I have had excellent mentors who have "unlocked the secrets of winning." I have them to thank.

The first step to winning a criminal case begins the moment a potential client sits down for the initial consultation. When a case is fresh, it is vital to gather maximum information at the earliest possible time. No strategy can be formulated without all the facts. The earlier the lawyer knows the client's version of events, the sooner investigation plans and cross-examinations can be formulated. Thus, it is vitally important that the lawyer and the client establish a convivial rapport right away. As a general principle, a good lawyer should "get in front of the case" by hurriedly investigating and gathering facts at the earliest possible time. By gaining early insight into the fact pattern, the defense lawyer levels the playing field against the prosecution, and prevents the oft-encountered problem of having to switch strategies in the middle of the case. The good lawyer must define the case in simple terms, by creating a "theme of the case."

It is also vitally important for the lawyer to learn as much as possible about the client, the client's history, and his or her family, friends and colleagues. The more the lawyer knows about the client at this early stage of the case, the better the lawyer is equipped to devise a solution to help that client later. The client him or herself is part of the theme of the case.

The second step in winning a case is for the lawyer to develop a winning strategy. As noted above, a strategy cannot be considered reliable unless all the facts are available to the lawyer. Once all the facts are in, the attorney should scan the material to analyze the place "where the case breaks." The lawyer must sift through the evidence, all the while cross-referencing against evidentiary, constitutional and criminal law to determine if there is a point which contradicts logic or law. If the case cannot stand on its own without the arguably erroneous piece of evidence, then that is the place where the case breaks, and maximum effort should be spent to uncover, illustrate and announce that point. Such effort could consist either of fact finding and investigation, or legal research and motion drafting, or both.

A common example of a place where the case breaks is the "Motion to Suppress." Generally, in such motions, the defense attorney is trying to get the court to exclude the prosecution's key item of evidence, meaning that piece of evidence upon which the entire case rests. For example, in a drug possession case, evidence of drug possession would be suppressed (or excluded) from the case. When such motions are successful, the prosecution usually has no choice but to dismiss the case.

Another common example of a place where the case breaks is in one witness cases, or eye-witness cases. In such cases, it may be the lack of credibility of the witness that causes the case to break. Where that witness is a law enforcement officer, there are legal and factual tactics that may be employed in a winning strategy. One the legal side, motions and subpoenas may be filed with the goal of discovering the law enforcement officer's employment background and any complaints that may have been lodged against him/her. On the investigation side, crime-scene reconstruction may aid in learning how to discredit the eye-witness. Of course, investigations in to the witnesses history can turn up facts that cause the witness to seem like a less than honest person.

It is important to note that "strategy" does not necessarily mean "trial strategy." Not all cases should go to trial. There are those cases that don't break based on fact or law. For example, there may be a drug possession case where there is no defense, or where the evidence is overwhelming. In such cases, the lawyer can employ his or her knowledge of the court process and knowledge of the client's biographical data to soften the impact of a conviction, and/or to find alternatives to convictions or incarceration. The defense lawyer has a distinct advantage in this area, because the prosecutor will almost never have access to the defendant and cannot know what the defense lawyer knows about his or her client's life.

Also, some case stategies can be devised where the case breaks based on a pre-trial motion hearing, or based on aggressive advocacy that the prosecutor dismiss the case in light of the defense lawyer's presentation (either at an out of court informal conference, or an in-court formal pre-trial conference). Often this strategy envisions the possible acceptance of a pre-trial plea bargain, where the defense attorney tells the prosecutor which lesser charge or charges may be acceptable to the client, if any. However, if the lawyer analyzes that the case breaks entirely due to either factual logic or legal reasoning, then that point to drive the entire advocacy.

It follows from the definition of a strategy, "discovering the place where the case breaks, and uncovering, illustrating and announcing it," what would be correct preparation. Where the case breaks on a factual point, the proper preparation to employ is often investigatory and/or by consulting with experts in various fields. This is where lawyers consult with private investigators, medical experts, physicists, or any other person with knowledge about a field beyond common experience. Where the case is a trial case, it is vitally important at this juncture to prepare to cross-examine the witness or witnesses who may have the point that breaks the case.

Where the case breaks on a legal point, as in a "Motion to Suppress," proper preparation entails legal research and careful drafting of legal motions and oral arguments. Even when the point where the case breaks is factual or logical, motion work can be the cornerstone of success. There are innumerable types of legal pleadings that can be filed, and lawyers can even invent motions to file. Generally, the idea is that the lawyer is trying to get the judge to make a definitive ruling about an item of evidence. Either the lawyer wants the judge to exclude the evidence, limit how it may be used or talked about, hold that the evidence can only be viewed in a certain light or at a certain time. The reason the lawyer has for asking for the ruling can be direct, arcane or total subterfuge. Motion work is akin to "choosing the field of battle" in the analogy of warfare. Sometimes it's better to fight in the fog; sometimes it's better to fight from higher ground; sometimes it's better to ambush the flank or the ranks. Sometimes it's better to dig in prepare for the siege. Motion work provides this kind of power to a skilled criminal defense attorney. In fact, it's can be the difference between a skilled and unskilled criminal defense attorney, and is a point which the prospective client should inquire with the prospective attorney when making a decision about who to hire.

The third step in winning a criminal case is developing the in-court presentation. This is where I answer the question, "what does it mean to be effective in court?" Remember, not all cases are trial cases. Thus, not every in-court presentation is going to involve a scathing cross-examination. In fact, very very few cases involved cross-examinations, but all cases require a well-developed in-court presentation plan. One case may require aggressive advocacy to the judge to convince him or her that the client requires treatment not prison. Another case may require soft convincing of the prosecutor to amend the complaint and view the case in a different light. In other words, each case is unique, and a the lawyer must make judgment calls about when to talk like drill sergeant, and when to talk like a couple's therapist. The skilled criminal defense lawyer is able to modulate his or her presentation to fit the theme of the defense. The tone, tempo and content of the in-court presentation should be planned and executed deliberately. Most importantly, effective in-court presentation requires to the attorney to present suggested solutions to the court, rather than simply voicing concerns and gripes.

So what exactly does "winning" mean? Of course, a case is won when it is dismissed or when the jury says "not guilty." Less obvious, a case is won when the jury is deadlocked, because it means that the prosecution will have to regroup and prepare an alternative strategy. Often times, hung juries cause the prosecution to rethink whether the case is worth fighting. Another kind of "win" is where the desired result is achieved (and the result desired is other than dismissal, acquittal or hung jury). For example, where the client receives an order by the court to be admitted to a residential drug or alcohol treatment facility, or to receive the psychiatric assistance that he or she requires. A "win" could also mean that the charges are reduced; alternatively it could mean that the complaint is amended to an offense which does not implicate certain negative consequences, for example, the loss of a right or privilege (i.e., right to possess weapons or privilege to engage in a certain profession). What "winning" means is a thing defined first by the client and supplemented by the knowledge, experience and recommendations of the attorney.

Winning a case is a matter of doing four things: 1) gathering data, 2) planning a strategy, 3) preparing to execute it, and 4) effective presentation of the strategy. When each of these things is performed correctly by the attorney, the risk of loss should be exquisitely minimized. The likelihood that the defense attorney will "win" the case; e.g., get the client's desired result, goes up drastically. With effective planning, investigation, consultation, goal-setting, research, writing, negotiating and arguing, any case has a chance to win.

Posted by attorneypuri at 08:29 PM | Permalink | Comments (0) | TrackBacks (0)

If you have missed a court date where you were ordered to appear, the judge may have issued a bench warrant. This means that the police or sheriffs can arrest you if (for any reason) you are stopped and asked to present identification. Also, a few times per year, most law enforcement agencies perform what are called "warrant sweeps," where they pull all the outstanding warrants from the computer and go around arresting people.

There is a way for you to clear up this warrant without having to go to jail. The method is simple:

1. Arrive at 8:30 a.m. to court with your attorney; go to the clerk's office and add the matter to calendar. It helps if you know your court number, but if you don't, your attorney can find out the court number with your true full name and date of birth.
2. Often times you can get the matter heard in the department where the case originated the same day (often the same morning). However, if you do not get the matter on calendar the same day, then at least the clerk can give you a court date within a few days.
3. Appear in court with your attorney, and ask the court "to recall and discharge the bench warrant." The court will want to know why you did not make it to your last court appearance. The reasons the court will consider are as follows: (a) you were confused about court dates, either because you were not notified, or because there was an error on the printed calendar, and you made every effort to clear it up; (b) you were sick and in the hospital; (c) you were in jail; and (d) you do not have a long history of missing court dates.

The fact that you made the effort to come to court and clear up the bench warrant is usually good enough reason for the judge to recall the bench warrant. It also helps if you have a lawyer that practices in criminal courts often, because the judge will likely take the lawyer's representation that he or she will get into court on the next date. There are those mean judges that like to punish those who miss court dates. You probably know if your judge is like that. Be sure to tell your lawyer who the judge was, so that he or she can research the particular judge's proclivities.

Posted by attorneypuri at 08:28 PM | Permalink | Comments (0) | TrackBacks (0)

When people are charged with criminal cases, many people are uncertain what kind of lawyer to hire. First of all, when you receive a citation or a letter from the prosecutor indicating that you will or may be charged with criminal charges, you should consult with a criminal defense lawyer. Don't buy into the belief that the best lawyers know how to handle any kind of case. It's not so. Criminal law is complicated and specialized; thusly, you should hire a lawyer whose practice consists at least 80% of criminal cases.

An ideal criminal defense lawyer anywhere should know how to manage all stages of a criminal prosecution, including pre-charge investigations, interrogations, pre-trial negotiations, pre-trial motions, jury trials, appeals, creative sentencing schemes, later parole hearings, early probation/parole termination, pardons and expungements. Your attorney should know exactly what strategy is best suited for each important stage of a criminal proceeding, and should act accordingly.

Good criminal defense lawyers are not afraid of fighting a case in front of a jury, but are smart enough to get the best results from negotiations with prosecutors. A good attorney should guide you through an investigation by police/ federal agents so that you don't expose yourself to unnecessary liability, for example, by answering questions that you are not required to answer, or allowing them to search where they have no right. And he/she should point to a reputable bail agent, in the event of arrest.

You should want him or her to be a real trial lawyer, and not just a negotiator. Good trial lawyers are respected (and sometimes feared) by prosecutors, and get much better pre-trial negotiation results. If the prosecutor knows the defense lawyer is willing to fight a case until the end, you can expect offers to get better and better as the case goes on. Such is not the case for trial-newbies who convince their clients to accept deals prematurely. Of course, if the prosecutor will not take a reasonable counter-offer, or will not dismiss the case, then that prosecutor should know that he or she will be in for tough battle.

Many attorneys only practice law in one county, or in one city. Many very good attorneys practice in a club-like setting of lawyers, but it seems to breed the myth that "who you know matters more than what you know." Practical realities aside, this remains a county of laws and ideals. The best attorneys know how to travel to any city or court and win. Just because a lawyer is new to a particular court, does not mean he will be treated poorly. By acting professionally, and holding him or herself to the highest standards of professional conduct, foreign courts and lawyers tend be welcoming to the travelling attorney, especially if he or she is very knowledgeable of the local court customs.

A good attorney is educated in the scholarly points of law, and should have the skills to draft and orally argue appeals. Evidence and Constitutional Objections must be stated artfully to protect your appeal chances. Lawyers who take to the time to become skilled appellate advocates are better equipped to preserve your chances of having a bad ruling by a trial judge reversed down the road. Inexperienced judges are as common as inexperienced lawyers. You need criminal defense lawyer that can handle all criminal litigation circumstances.

If you are looking to hire an attorney, even if he or she comes on good recommendation, ask about the cases he or she has handled. Many attorneys boast about getting cases dismissed, or getting good deals for clients. You should look into those claims. How many were charged but never filed? Post-arrest discharges indicates the prosecutor's case was weak, and the defense lawyer didn't have to do much work. Does the attorney represent government informants (snitches)? No one trusts a snitch; so, don't trust the snitch's lawyer either; if a lawyer is willing to "roll" his client over to the feds, it shows lack of heart and character under difficult circumstances. How many cases were charged and then dismissed? This is an indicator that the attorney does his or her homework and is diligent in protecting you. How many jury trials did he or she handle? This indicates that the attorney does not deal cases when the going gets tough, and is a battle-tested court warrior. How many cases were dismissed on the day of trial? This would indicate that your attorney is able to scare the prosecutor into giving up, before the real fight begins, which shows your attorney is a feared court warrior.

The most important test of a good lawyer is whether he or she is personable and approachable. What goes for everyone goes for lawyers, too. Lawyers should be polite and courteous. I find that snobby, arrogant lawyers don't get better results than sharp but diplomatic attorneys. If you can't connect with your attorney, chances are your attorney can't connect with anyone.

Unless you are a seasoned criminal, you probably won't know how to go about finding a good criminal defense lawyer. Career criminals know the members of the defense bar on a first name basis. Independently wealthy people often find lawyers through their network of friends. Today, the middle to upper income members of society rely on telephone books and the internet to find lawyers in their area. This article should help those people research the right attorney for their case.

Posted by attorneypuri at 08:27 PM | Permalink | Comments (0) | TrackBacks (0)

I frequently receive calls from the distressed clients of other attorneys asking me whether they should fire their lawyers, because no investigation has been performed on the case and the client wants to go to trial and not take any deals. When is it a good time to fire your lawyers, and how do you know if you should?

Criminal law is like any other profession. There are good lawyers and bad lawyers just as there are good doctors and bad doctors. With lawyers, however, it can be harder to know if you are getting a good service. The hallmark of good service is preparation and successful execution of the trial strategy.

First, ask yourself what stage of the case you are in. Generally, it is not a good idea to fire your lawyer on the day of trial. Judges do not like this behavior and see it as evasive. Only in the most serious circumstances where lawyers have committed aggregious conduct do judges allow substitution of attorney on the day of trial. It is far better to fire your lawyer at an earlier stage of the case. If your lawyer has not made clear his theory of the defense, his trial strategy, and the steps he has taken to prepare by your preliminary hearing, then you should fire him or her before your hearing takes place.

In other words, you should be apprised of all the aforementioned data at a very early stage of your case. If you lawyer is too busy to inform you about strategy, preparation plan, and legal issues involved in your case, fire him or her as soon as possible. You may lose money by having to hire a new lawyer; however, in serious cases money should not be the issue. Your freedom and livelihood are the real issues.

From a technical standpoint, the latest time to fire your attorney should be after the preliminary hearing in a felony case, or after the first pre-trial conference in your misdemeanor case. By these hearings, if you are not as well informed as your lawyer, then you may assume your lawyer is unprepared to defend you. Do not hesitate to hold your lawyer's feet to the fire, and do not accept cursory or dismissive answers. If you were to undergo brain surgery, your surgeon would be required to disclose all the risks involved in the procedure. Doctors tend to spew information in the form of disclosures when you get treatments. You should demand the same level of transparency from your criminal defense attorney. What kind of life will you have without your freedom?

Adequate preparation means that your lawyer has hired an investigator, has retained the relevant scientific experts (if necessary), has filed all the motions that comport with the trial strategy, and has prepared his or her witnesses to testify by giving mock direct and cross examinations. If you are on the eve of trial and you have not had practice sessions with your lawyer, and neither have any of the other witnesses, then you should make a lot of noise and fire your lawyer.

A word of caution: I've noticed that it tends to be the case that lawyers who charge discount flat rates for pre-trial retainer agreements, do not prepare for trial; they prepare to plead. Now, if that is what you wanted all along, then you are getting a good deal. Do not be misled by a fast talking lawyer who promises your freedom for one or two thousand dollars. If you are in a position to want a jury trial, then you should expect to pay a significant sum, greater than $10,000, if you expect to have your lawyer prepare witnesses, collect evidence, manage an investigator and engage leaders of the scientific community. But keep this in mind, good trial lawyers make the best plea bargainers, and not all plea bargainers are trial lawyers.

When a prospective client comes into my office or calls me on the phone, I try to gauge his or her expectations and goals. Some people know at the beginning of the case that they do not want to go to trial, such people may be prominent in the community and need the case to go away quietly and quickly. Such people should retain a lawyer who is well known to win jury trials (or can tell you some war stories), because that lawyer will get the best result most quickly. However, the retainer agreement should reflect that the client is not paying for a jury trial and does not expect the same level of preparation as a trial case would entail. Thus, the fee would be substantially smaller, far less than $10,000 in most cases.

When a client tells me he or she will want a jury trial, I make it very clear at the first interview what the theory of the defense will be (i.e., self-defense, entrapment, reasonable doubt, etc., etc.). I tell them what kind of preparation will be required to prove the defense strategy, i.e., which legal motions would be necessary to achieve the goal, what investigation should be performed, and which experts should be contacted and consulted. As the case progresses, I inform the client when he or she should expect to sit at the defense table, and when that time draws near I sit my clients and other witnesses down and do mock examinations until I and the witnesses feel ready.

There are many stages to a criminal case, i.e., arraignment, motions hearings, pre-trial conferences, preliminary examinations, jury selection and in limine motions. If you expect your lawyer to take your case to trial and he or she has not given you input about these stages of the case and what he or she plans to do to achieve the trial strategy, then you should probably cut your losses and fire that lawyer!

I can think of no fate worse than being incarcerated, even for one day. I know I could endure an illness far easier than being in a cage. Thus, your freedom is the most important aspect of your life as a human being on this planet. Please, demand to know what your lawyer plans to do to accomplish the preservation of your freedom; wouldn't you expect no less from your dentist, eye-doctor or physician? Demand explanations at all stages of the case, and if you do not get them or if they are woefully inadequate, you would be wise to find new counsel as soon a possible.

Posted by attorneypuri at 08:26 PM | Permalink | Comments (0) | TrackBacks (0)

Sometimes just being arrested can have serious immigration law consequences. (8 USC secs. 1252(a), 1357(a), 8 CFR secs. 242.2, 287.3).

These code/rule sections allow the government to hold individuals without bail or any other release procedure. Typically, these immigration statutes/regulations are invoked in a criminal court setting.

Criminal defense attorneys usually do not have experience with immigration law, and do not have the adequate knowledge to challenge the invocation of these above-mentioned laws. Given today's climate, however, some criminal defense attorneys are adding immigration law to their repertoire.

Indeed, there are boutique defense firms arising that have begun to specialize in both criminal defense and immigration law, with an emphasis on the immigration consequences of criminal arrests and convictions, and on existing and newly created federal crimes that have immigration law origins and implications (i.e., the Patriot Act).

Posted by attorneypuri at 08:25 PM | Permalink | Comments (0) | TrackBacks (0)

People are often confronted with the following situation:

You are stopped on the side of the road by a police officer. He walks up and starts asking questions. One of the questions might be "do you have any weapons," or "do you have any drugs on you?" The most dangerous question that the police commonly ask is, "can I search you and your car?"

What are you required by the law to do in this situation? The simple answer is "nothing." Our U.S. Constitution allows you, as a person living in the United Statess, to refuse to answer any of those questions. First, because you have the right not to incriminate yourself. Second, because you have a right to have a lawyer present during any questioning.

The fact of the matter is, in my law practice, the client's worst enemy in any criminal prosection is the client him (or her) self.

Things become complicated when the police are actually investigating the person for some crime, and it's not just some random stop. Often police inspectors, or investigators from the district attorneys office will intimidate the client by telling them that "it will be better for you if you cooperate." Additionally, the police will actually LIE by saying, "I'm here to help; I just want to clear some things up."

DO NOT BELIEVE THEM! Once you open your mouth, you are doomed, because the police are crafty, experienced interrogators who can make you say things against your own interests. In the vast majority of cases, without the client's own words, damning themselves, the police do not have a strong enough case to ensure a conviction at trial. In other words, most clients would not be in jail if they DID NOT OPEN THEIR MOUTHS.

The police do not want lawyers around them while they are interrogating you, because we prevent them from getting the information they need to make their case, and it's all legal. Believe me, you are far better off with an attorney present any time the police come around, and it could mean the difference between freedom and living in a cage.

Posted by attorneypuri at 08:24 PM | Permalink | Comments (0) | TrackBacks (0)

The following statement can be used to preserve your rights, and your chances of winning your criminal case, if you are ever arrested:

__________snip

PLEASE TAKE NOTICE that I do not waive, and I hereby invoke my rights, as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

I object to ANY search of ANY kind whatsoever. I do not and will not consent to a search of my person, my things, my car or my home.

I choose to REMAIN SILENT. I will not say anything without my lawyer. I will not answer any questions or provide any explanations until I have spoken to my lawyer.

Because of the possibility of lying witnesses or jailhouse snitches, I will not talk about my case with anyone other than my lawyer.

Make this statement a part of the report concerning this contact.

__________snip

Print this statement, and cut it out. Put multiple copies in your car, your house, your wallet, etc. Of course, you should have an attorney whom you can call. You should consult an attorney, if you have questions regarding how this statement may be used to protect you.

The short explanation is that it will preserve your rights, prevent confessions/admissions from occurring or being admissible if they do occur (i.e., because the police ignored the notice). Evidence obtained in violation of this notice, could be suppressed, potentially causing your case to get dismissed.

Here is a partial list of cases where this notice becomes very helpful for people.

• DUI / DWI / Drunk Driving
• Driving w/ suspended license or bad tags
• Driving w/ concealed weapon
• Driving w/ narcotics &/or paraphernalia
• In a hit & run case
• Law enforcement searches where cops/ feds don't have a warrant
• Anytime law enforcement asks you a question
• Anytime law enforcement asks you to sign a "Waiver" in connection with an arrest or investigation
• Anytime law enforcement comes into your home (without being invited)
• Any federal or state criminal arrest, investigation or prosecution

Of course, this statement is not a magic force field, because there are times when law enforcement does have the right and the power to search you, your belongings, your car or your home. This is the best protection against unlawful searches. (By protection, I mean protecting you from a conviction and jail/prison/parole/probation. The cops could still dig around in your stuff, and generally act scary. You'll be safe from whatever they find in there.)

This notice will protect you from interrogations, but only as long as you KEEP YOUR MOUTH SHUT!

Obviously, none of what is written here is intended to create an attorney-client relationship. These statements do not constitute legal advice. You should always consult an attorney at law, preferably one that has substantial experience with criminal litigation. Otherwise, you assume the risk of your own mistakes.

Posted by attorneypuri at 08:23 PM | Permalink | Comments (0) | TrackBacks (0)

Too often I've sat in court, while waiting to appear with my client, and I would have to sit and bite my tongue while someone in the black moo-moo violated all of some poor defendant's rights.

It usually happens like this.

Someone comes to court for their first appearance, usually on a misdemeanor DUI, domestic violence, narcotics or prostitution solicitation (sex) case. As soon as the case is called, the judge starts talking about pleading guilty.

For example, a judge in Palo Alto stated (on the record), "You can go ahead and hire a lawyer, but I know this District Attorney, and she's really good. She's never lost a DUI case; even one Public Defender fought a DUI case against her. He thought he was so smart. He lost, too. So you can waste your $5-10,000 if you want. But, I'll go easier on you if you plead now."

I was trying a case against this same D.A. and I didn't think she was all that great. I guess the judge scared the guy pretty badly.

Then, the judge started reading from the police report, talking about unsafe lane changes, swerving and a preliminary alcohol screening that was over the legal limit. The judge further smeared the poor fellow about his prior driver's license suspension, and a failure to appear.

The defendant interrupted and stated, "But that license suspension is an error, and I think I need a lawyer to clear that up."

The judge said, "Look. It's my job to clear my calendar. You're not going to win at trial. So don't waste your money."

Soon the defendant started to cower, and said, "Well. You are the judge, and I understand what you are telling me. I'll just plead guilty."

The poor fellow signed the plea form, and left the court. I'm not sure he really understood the consequences of his plea. The judge did not read out the standard admonitions (warnings) about how he was waiving all his constitutional rights. He'll get some pretty big surprises in the mail. I was surprised to learn that blatant and horribly irresponsible violations of people's rights still happen every day in our courts.

I spoke with a few people I met on the street about this event. I spoke to my barber. I talked to a security guard, and a few friends. The general experience in cases like this is that people feel guilty, and because of their inexperience with the criminal justice system, people cannot imagine how they might fight the case. Most people when confronted with a situation like this, just do what the judge says. He is, after-all, the judge.

I must speak out on behalf of "The System." This is not "Law and Order." The police and the prosecutors don't win every time. Believe me. In all the San Francisco Bay Area counties where I practice law, I see the Public Defender's offices kicking the prosecutor's in their pants, over little cases and serious cases. Private lawyers vary in their abilities. Get a tough guy who's not afraid of a good fight. Don't get a deal maker; deal makers don't get good deals.

If you can't afford a lawyer, then ask for a Public Defender. You must never plead at your first court appearance. Never admit anything. Never say a word other than, "I want my lawyer." The judge is required by law to give you up to two weeks to secure representation. NEVER EVER EVER PLEAD AT ARRAIGNMENT! THAT'S AN ORDER!

First, you are not a lawyer. You don't practice day in and day out in criminal courts. You are not an expert in the intracacies of criminal law, constitutional law, criminal procedure, the vehicle code, the health and safety code, evidence law, and case law (among others). How can you possibly know whether you have a case or not? Even if you don't have a good case, accepting what the judge says can cause you real problems.

Look at our above example; that poor guy might not have had a good case. But by taking that plea, he may be admitting the prior conviction, which would make his sentence worse. If he had a lawyer, the lawyer could have forced the D.A. to prove the prior, and if the D.A. couldn't, then the defendant could get a lighter sentence. Because he may have admitted the prior, if he ever gets another DUI, he might actually get some time in the county jail (up to six months).

A good lawyer should be able to rattle off three to five possible defenses for any criminal case. In a DUI case, you might have a "rising defense," the machine could be faulty, the test could be faulty, the cop could be faulty, there might be constitutional violations. There are so many ways to fight a DUI case; some lawyers specialize in only DUI cases. By all means, get a lawyer.

If you don't have a defense, then you need a lawyer to play damage control and get you the best deal. Even if you cannot afford a private lawyer; you must get a Public Defender.

People bad mouth Public Defenders all the time, but you have to remember; they are over worked, and have hundreds of cases. They may never see you, or talk to you, during the life of your case. It's not pretty, but it's real. The fact is, they've handled so many cases that usually they really know quite a lot about the law and how to defend cases. Whether you like Public Defenders or not, you are way better off having one, rather than going it alone against the judge and the D.A.

What the judge did in our example was not in the interest of the defendant. That judge didn't care one bit about that guy. He was interested only in himself. He wanted to clear his calendar, pure and simple. If that meant some poor blue collar fellow would lose his license, his ability to work, drain his bank account, and put him on probation, and put his whole future at risk, then so be it, says that Palo Alto judge.

He trampled the poor defendant's constitutional rights. By robbing him of his right to have counsel, that Palo Alto judge was robbing us all of a justice system where the little guy has a chance. He made sure that Uncle Sam was King Sam in his court. The D.A. and the Judge were like two beach volleyball teammates, bouncing the ball to one another, setting each other up to spike one in the defendant's face.

If you don't have a guy on your team; you will lose. If you have a lawyer on your side... Who knows? You could win.

Anyway, I was sitting there, quietly, the whole time. How could the judge believe he had this much power? The Santa Clara County system is beyond broken. At the first court appearance, the Public Defender was not allowed to be there. The D.A. was there, though. If there was a Public Defender there; the judge could not do that. In San Francisco, that could never happen, because the Public Defenders would raise hell, if a judge acted like that. I would have loved to jump in and level the playing field.

My problem, at that time, was that I was private counsel and retained to protect only my client. I had a responsibility not to cause and raucus and prejudice my own client's chances of winning.

Incidently, in my client's case, the judge and D.A. wereboth fighting on the same team to delay my client's trial, and violated his right to a speedy trial. See, if the judge or D.A. aren't ready for trial within 45 days on a misdemeanor case, then they have to dismiss it.

They were playing games to try and stop the clock. However, my client has great lawyer; we're filing appeals, writs and motions. We're fighting a smarter court battle. His case will get dismissed, because his lawyer knows what he's doing.

My client is one of those kinds of people that "don't take any crap from anybody." He has a fighting spirit. Everyone should have a fighting spirit. However, if you were not endowed by the Creator with a warrior heart, then hire a lawyer that is. I promise you that if you get a good lawer (not just any lawyer), but a well-regarded, smart and tough lawyer, your life could change. Just when the system feels like it's going to pull you down (and keep you down), you could have a lawyer use his skill and courage to pull you up, and set you free.

Posted by attorneypuri at 08:22 PM | Permalink | Comments (0) | TrackBacks (0)

This article is about the stages of a criminal case under California law. The principles outlined in this article are generally reflected in the criminal law throughout the United States, though terminology and timelines will vary some.

1. ARREST

a. Misdemeanors

In California, a misdemeanor criminal case begins with an arrest. You know they have been arrested when, either, you have been taken into actual custody by the police (i.e., hand-cuffed, booked and held in a cell), or you have been given a citation and a notice to appear in court.

If you have been formally arrested, you will usually appear in court for the first time within two (up to) five days. You will have an opportunity to post bail under a bail schedule pre-set by the courts in the county where you were arrested.

If you have been given a citation and a notice to appear, you will usually be given thirty to sixty days. Failure to appear will result in a bench warrant, and a higher bail. If you are arrested on a bench warrant, you will fight your case from jail.

b. Felonies

In felony cases, there is almost invariably an actual custody arrest of the defendant. You will still have the option of posting bail; bail will be high, probably over $50,000 up to more than $1,000,000, depending on the severity of the charges.

2. ARRAIGNMENT

a. Misdemeanors

When you appear in court for the first time, you are at what is called an "arraignment." At this proceeding, your attorney will probably plead "NOT GUILTY!" on your behalf, set a pre-trial conference, and enter either a demand for a speedy trial or a "general time waiver." Usually, judges set trial dates when people do not "waive time"

In misdemeanor cases, if you appear at arraignment in the custody of the local sheriff, you have the right to a jury trial within thirty days. If you appear from a citation, out of custody, then you have the right to a jury trial within forty-five days. This is California's statutory implementation of your constitutional Sixth Amendment right to a speedy trial. You also have the right to determination of probable cause to arrest you pursuant to Penal Code section 991 (only in custody defendants have this right).

Some motions can be heard at arraignment. You can ask for "own recognizance" release or "O.R." You also have the right to ask for bail or a bail reduction. In certain circumstances your lawyer may want to wait to ask for a reduction in bail by requesting a formal bail hearing where witness are called to testify and evidence is presented to prove you are not dangerous or a flight risk.

You will also have the right to "demurrer" to the complaint (ask your lawyer what this means). Many times, it is advisable request particular items of evidence on the record. Prosecutors and defense attorneys will often exchange "informal discovery requests."

b. Felonies

In felony cases, the speedy trial rules are devised differently. First, you have the right to speedy "preliminary hearing" within ten court days or sixty calendar days. If your hearing is not within ten court days and you did not waive time, your case does not get dismissed. However, if your hearing is not held within sixty calendar days and you did not waive time, then your case will get dismissed.

You have the same rights to the various motions that are normally heard at arraignment in felony cases that you do in misdemeanor cases.

3. PRE-TRIAL (OR PRE-HEARING) CONFERENCE

In misdemeanor cases, you will usually have a pre-trial conference date (which can also double as a discovery compliance) date. At this time, the prosecutor will offer you a deal, and the plea bargain negotiations will begin. Your lawyer may want to set dates for more motions (i.e., motion to suppress).

In felony cases, you will receive your plea bargain offer from the district attorney at a "pre-hearing conference." This is a date set prior to the preliminary hearing where the prosecution pressures the defendant to take a deal by threatening to make the offer worse after the preliminary hearing. It's usually not advisable to take a deal at such an early stage.

4. PRELIMINARY HEARING (Felony Cases Only)

In felony cases, the most important pre-trial hearing is the "preliminary hearing" (otherwise known as "preliminary examination" or simply "PX"). At this hearing, the prosecution calls witnesses and present evidence to prove to the judge that there is enough evidence collected to make it worth while for the court to hold a jury trial.

It's the defense lawyer's job at this hearing to cross-examine each witness thoroughly.

If the judge agrees with the prosecution, he will "hold the defendant to answer" (otherwise known as a "holding order"). This means that the charge will not be dismissed and the defendant will have to come back to court for a second arraignment, called the "arraignment on the felony information."

5a. GRAND JURY

In really important felony cases, the district attorney calls the "Grand Jury" to secret proceedings where witnesses are called and neither the defendant and defense lawyer are present. Grand Jury proceedings are expensive, cumbersome, time-consuming, and are usually reserved for very complicated or sensitive cases. Findings of the grand jury are presumptively valid; yet, there are procedural challenges a defense lawyer can make.

5b. FELONY ARRAIGNMENT

In felony cases only, after the preliminary hearing, the prosecution files a second document called the "felony information." If there has been Grand Jury proceedings the document is called and "indictment."

At the felony arraignment, defense counsel will usually set a date for a motion to dismiss pursuant to Penal Code section 995, sometimes a motion to suppress pursuant to Penal Code section 1538.5, discovery compliance date, there will be a readiness conference date set pertaining to trial, and a trial date will be set.

You will have the right to a speedy trial from this date as well. If the prosecution and the court does not begin your jury trial within sixty calendar days, and you have not entered a "general time waiver" or a "limited time waiver," then your case will have to be dismissed (with some exceptions).

6. PRE-TRIAL MOTIONS

There are a number of pre-trial motions that may be heard prior to the start of jury trial. I mentioned those in previous sections.

7. READINESS OR PRE-TRIAL CONFERENCE

Shortly prior to trial in both misdemeanor and felony cases, when there has been time to investigate prepare cases, there is another more negotiation conference between lawyers and the judge.

If the case has not settled prior to this time, it means that the case is probably headed for a jury trial. The judge will try to encourage settlement of the case with a longer meeting with the lawyers. He or she will mediate actively to convince each side that their chances of winning are not as good as they think. Sometimes judges will tell prosecutors that he or she will not impose a heavy sentence; sometimes he or she tell the defense lawyer that he or she will drop the hammer on his or her client.

8. JURY TRIAL

In both misdemeanor and felony cases, a defendant has the right to a jury trial.

The first stage of a jury trial is the process of in limine motions. These motions set the stage for the trial, where the judge rules on what evidence is going to come in, and what is not. Here both sides are required to disclose all their witnesses and evidence in full.

The second stage is jury selection. Arguably, this is the most important stage of a jury trial, because the people selected for the role can decide between life or death, or freedom and incarceration. All good trial lawyers know that trials are won or lost at this stage.

Once jury selection is over, the prosecution and defense attorney give opening arguments. In some cases, defense counsel will opt to reserve opening statement until the prosecutor's case is over. It's usually a good idea to wait when the prosecutor seems to be hiding something or when defense counsel is having a hard time preparing a defense. One can win some time to find that key piece of evidence or prepare a better defense theory.

As Mark Geragos learned, it's not a good idea to over-promise and under-deliver. He did have a very difficult case to defend. One way he could have helped himself would have been give his opening statement after the prosecutor's were finished. Then he would have been able to tie in all their mistakes into a compelling opening statement.

Defendant is not required to put on a case at all. Many legal commentators agree that Mr. Geragos would have been better off in his defense of Scott Peterson if he would not have presented any defense, rested as soon as the prosecution finished, and began closing arguments about the numerous reasonable doubts. It would have been the kind of bold and risky move that he is known for; except, this one might have worked.

Once both sides are finished closing, the judge reads alout a long set of instructions and the jury begins its deliberations. Sometimes, this can take a long time; sometimes it can take very little time at all.

When the jury reaches its verdict, the foreman of the jury hands the verdict form to the bailiff, the bailiff to the clerk, and the clerk reads out the verdict.

In capital cases, there is another stage, called the "penalty phase." This is where the jury decides whether the defendant will live or die.

9. SENTENCING

If you are found "NOT GUILTY," then you are free to go and you do not reach this stage. If you are found guilty, the judge will set a date for sentencing. At sentencing, usually the judge takes the probation department's recommendation, recommendations from other judges who have seen the case, and makes his own decisions.

Usually, probation is ordered, and often jail or prison time. The judge will either order a surrender date or order that the convicted person be "remanded" (taken) into custody. Sentencing law is very complicated in California, and is beyond the scope of his summary.

CONCLUSION

Sentencing is the last stage of a criminal case. There are many variations on this example, such as, when the defendant has prior convictions and is on probation or parole. Then, the case probably a "violation of probation / parole" case, where defendant's rights are very different, and so are the procedures.

Posted by attorneypuri at 08:20 PM | Permalink | Comments (0) | TrackBacks (0)

Many of my clients want to know what a warrant is, and do not understand what is going in when a warrant is served on them. There essentially two types of warrants: (1) search warrants and (2) arrest warrants.

Search Warrant
A search warrant allows law enforcement to perform a physical search, usually of your home or car, and to "seize" evidence. A search warrant must be requested by law enforcement of a magistrate judge. Law enforcement must present a written affidavit specifying the basis for the search, and what and where will be searched. The affidavit must allege evidence that, on its face, establishes probable cause to believe evidence will be found. With some exceptions, search warrants must be executed by law enforcement during the day. If evidence is found during the search, an arrest may follow. There are numerous exceptions to the search warrant requirement, meaning, law enforcement can search persons, homes and automobiles without a warrant, if the conditions fit one of the exceptions.

Arrest Warrant
An arrest warrant is a document allowing law enforcement to "seize" or arrest a person. Arrest warrants are more varied in type. I have encounted the following types of arrest warrants: (1) warrants issued by magistrate judge, (2) warrants issued by the office of the District Attorney [DA Warrants], and (3) bench warrants issued by the superior court or federal district judge. Each of these types of warrants are based on a finding a probable cause to believe that a crime has been committed and a particular person committed it. In the case of warrants issued by a magistrate judge or a DA warrant, there is often a statement of probable cause given in an affidavit or police report. In the case of a bench warrant, the superior court judge issues an arrest warrant because the defendant failed to appear in court on time. The judge is making factual finding that a court order has been violated, and the defendant should be arrested and brought before the court to answer to contempt charges.

Posted by attorneypuri at 08:19 PM | Permalink | Comments (0) | TrackBacks (0)

I think one of the most worrisome aspects of dealing with criminal defense attorneys that people confront is what to say and what not to say about the crimes for which they are accused. The short answer is to tell the whole truth as you saw it, and I'll explain why.

This problem comes up most when people feel that telling the whole truth will lead to their conviction, so people will hide some facts from the attorney, hoping the attorney will be better equipped to defend the case.

Everyone should understand that hiding facts from attorneys is a very bad idea. The attorney-client relationship cannot function without complete trust and candor.

First, your consultations with your attorney are protected by the most powerful privilege and confidentiality law. The attorney-client privilege, without question, carries more power to protect secrets than the doctor-patient privilege, husband-wife privilege, therapist-patient privilege, and priest / pastor-penitent privilege. When it comes to court cases, what you say to your lawyer is more sacred and secure than any secret you say to anyone else in society. Therefore, don't hold back; in fact, err on the side of telling more.

You should be candid and forthright with your lawyer. You don't want your lawyer to be surprised in court. You don't want the prosecutor to know about facts that your defense lawyer does not. Surprises to defense counsel can lead to disastrous consequences for your case.

Second, your lawyer will be able to fashion a defense that incorporates negative facts, and makes them appear to be in your favor. Let's pretend there is an alcoholism problem in your past, and you are worried about the fact becoming a hinderance to successful defense of your case. If your lawyer does not know the extent of the alcoholism, and the other side does, then the other side has the advantage. The prosecution would paint you as an unruly drunk, and defense counsel may not be prepared to rebut that claim.

Had he or she known about it before, your lawyer could have softened the news by making it a part of the defense story, i.e., "my client is a sad person who drank to forget about Vietnam combat, but in all the times of drinking his pain away, he never committed a crime, and he was sober on the day in question." See? Bad facts can become good facts. Even your greatest sins can create wins.

Third, even if what you would say to your attorney would amount to a full confession of the crime charged, you are not required to testify. Your attorney can keep you off the witness stand, as is your Fifth Amendment privilege not to incriminate yourself. The judge must instruct the jury not to make negative conclusions about not testifying, and the prosecutor cannot comment on your refusal to testify. Remember, you are innocent until proven guilty beyond all reasonable doubt, and the prosecutor may not have enough evidence to convict. You could still win at trial even if you actually committed the charged offense.

Fourth, there are cases that are not worthy of a trial. In such cases where the evidence is overwhelming and a plea agreement should be reached, then your attorney should know all about your life to plead your case sympathetically to the prosecutor and the judge. If your attorney knows all the facts about your life and the case, then he or she can plead the case to a lesser charge, or work out an alternative sentencing arrangement that minimizes jail or prison time and substitutes counseling programs, classes, work-furlough, etc.

Finally, you should be hiring your lawyer because he or she is a creative intelligent professional that knows how to fashion a good defense out of facts, evidence and law. If you are hiring a lawyer that's cheaper than the guy down the street, then you may not have the trust in your attorney that you need. As I have said before, client and attorney must have trust in one another; mutual suspicion will lead to negative consequences in your trial, or will lead to a plea agreement that could have been less harsh.

I find that defending cases aggressively requires two things. First, I must have more information about the case than the prosecutor does. By having more information I can make a superior investigation plan. Also, my credibility as an attorney grows, because I can present verifiable data to the prosecutor. By appearing to have superior quality and quantity of data, the prosecution's confidence in his or her case weakens. At the same time, I appear to be objective, such that when I say a fact exists, it does. You want your lawyer to have control of the facts.

Second, to win a trial, the defense must be able to present itself as if it is eager to proceed to trial. Superior investigations allow defense counsel to prepare better cross-examinations, opening-statements and closing-arguments. By being forthright and honest to your attorney, you are giving him or her a chance to be better prepared.

There is no question that you should tell your lawyer everything you know about yourself and your case. You should do so as soon as you hire him or her. The sooner your lawyer knows about your version of the facts, she or he can get the investigation going, and begin fighting for you. You should let your lawyer decide what you should or should not say; you should not try to judge and decide for yourself. That is why you want to hire a professional, anyway; isn't it?

Posted by attorneypuri at 08:18 PM | Permalink | Comments (0) | TrackBacks (0)

Posted by attorneypuri at 08:17 PM | Permalink | Comments (0) | TrackBacks (0)