Oh No! My Loved One Was Arrested...What Do I Do?

This is a scenario that no one wants to find themselves in, but it unfortunately does happen. So your loved one is being/has been arrested, and you're trying to figure out what to do. Here are a few things to keep in mind and be aware of in the early stages of what appear to be likely criminal charges.

1. Don't interfere with law enforcement. If law enforcement is going to arrest someone, either on a warrant or because of conduct that they've been made aware of through an investigation, there is nothing that you can do to stop this. Don't hide a person that law enforcement is looking for, as that can be Obstructing a Peace Officer or Aiding and Abetting a Fugitive. Don't get in the middle of an arrest, as that can be Resisting Arrest or Obstructing. Let the arrest happen, and then deal with it after the fact. If you get in the middle of the situation, you can only make things worse, both for your loved one and for yourself.

2. Don't make statements to law enforcement, and advise your loved one not to either. I can't even tell you how many of my cases are proven largely by my client admitting to violations of the law, or by family members making statements that end up being harmful to my client. So the best course of action is to keep your mouth closed, and to advise your loved one being arrest to not make any statements either.

3. Hire an attorney as soon as possible. This should go without saying, but having an attorney involved at the earliest stages of a criminal case is important. Bond is set by the Court, and it's always helpful for the defendant to have an attorney to make a bond argument on his/her behalf. If there is no attorney involved, the defendant has to provide information to the Court directly, and could mistakenly make statements that can later be used against him/her. So the involvement of an attorney early on is important.

4. If the defendant can't afford an attorney, request a public defender as soon as possible. In most of the areas where I practice law, the public defenders are extremely qualified and excellent attorneys. So if a private attorney isn't in the cards financially, applying for the public defender is the next best option. And not delaying this application means that the public defender can begin working on the case as early as possible.

5. But don't think that a hired attorney or a PD can get a defendant out of jail in the middle of the night or on the weekend. In some low level cases, bonds are set by a schedule adopted in advance, so that people can post bonds and get out of jail right away. But for felonies or higher level misdemeanors, there aren't bond schedules. And it isn't required that defendants be brought before the Court for a bond setting until 48 hours. It simply isn't realistic to expect hired attorneys or PDs to be able to get defendants out of jail in the middle of the night or on weekends. Often we don't have the judge's cell phone number. And if we do, it won't do any good to make a call, as they're not going to set bond after a telephone call from one attorney. A hearing has to occur, where both the State and the defendant can make bond arguments. So don't expect middle of the night or weekend results. And don't buy into the hype from lawyers who tell you that they can achieve middle of the night or weekend results.

6. Be patient. I know that this is exactly the type of thing that people don't want to hear when their loved one has been arrested. But it's probably the single most important piece of advice. The wheels of justice turn slowly. Dismissals usually don't happen at the first hearing; and trials aren't immediate. It takes time to get discovery (police reports, photos, recordings, etc.) and plea offers. And it takes time for a criminal defense attorney to review this information and discuss it with a defendant. So even though it's terribly difficult, be patient.

Guilty, Not Guilty, No Contest...What do they mean?

When a person is charged with a crime and makes his or her first court appearance, the judge advises that individual (although usually along with a courtroom full of other folks) of his or her rights. Additionally, the judge advises the defendants of the possible pleas that they can enter. There are three: guilty, not guilty, and no contest. So, what do these pleas actually mean, and what is the difference between them?

Guilty means that the defendant is admitting to what he/she has been charged with. If a guilty plea is entered, the judge may sentence the defendant immediately, or may order a Pre-Sentence Investigation (PSI) to be completed with the probation office before a sentence is imposed.

Not Guilty means that the defendant is not admitting to what he/she has been charged with. This plea is often entered at the outset of the case, essentially as a placeholder, to allow the defendant to meet with his/her attorney, conduct discovery, engage in plea negotiations, and generally decide how to proceed in the case. Ultimately, if the defendant decides to go to trial, he/she will stand on the not guilty plea, and the judge or jury will decide whether the defendant is guilty or not guilty at trial.

No Contest means that the defendant is neither admitting nor denying the charge. Instead, the defendant is allowing the judge to find him/her guilty and impose a sentence without a trial. I often tell my clients that if you disagree with some of the facts in the police reports, but ultimately wish to accept a plea offer and avoid trial, then a no contest plea is the way to go. Generally speaking, prosecutors and judges don't care whether a defendant enters a guilty or no contest plea, so it doesn't lead to a more severe sentence than a guilty plea.

Innocent is not a plea. People sometimes tell me that they want to plead innocent. What they really mean is that they want to enter a not guilty plea, and proceed to trial because they did not do what they are charged with. If you want to look smart, don't tell the judge or your attorney that you're pleading innocent, say you're pleading not guilty.

What is a Preliminary Hearing? And what do I need to know about it?

Written by Tana M. Fye

If a person is charged with a felony, one of the very first hearings that will be scheduled is called a preliminary hearing. This type of hearing is not scheduled in cases where a person is only charged with misdemeanors, so people are often confused about what exactly happens at the preliminary hearing.  

A preliminary hearing is a hearing where the State (through the County Attorney or the Attorney General) has to show (1) that there is probable cause to believe that what was charged actually happened, and (2) that the person charged is the person who committed that act. Probable cause is the standard. And probable cause is a much lower standard than reasonable doubt, the standard used at trial. Consequently, it is much easier for the State to show probable cause and win at the preliminary hearing than it is to prove the case beyond a reasonable doubt and win at the trial.

A defendant (the person charged with the crime) has two options as it relates to the preliminary hearing. One option is to have the preliminary hearing, where the State would try to prove up the two items discussed above. The second option that a defendant has is to waive his/her right to preliminary hearing. This waiver can happen either in the courtroom, or using a document called a Waiver of Right to Preliminary Hearing. Both essentially accomplish the same thing, giving up the ability to challenge probable cause. 

There are several reasons that a person may want to waive his/her right to a preliminary hearing. They include (but aren't limited to): the ability to screen for drug court, to curry favor with the prosecutor to try to get a more favorable plea offer, to obtain discovery or reports more quickly, because the judge has already found probable cause, because a better strategy may be to file suppression motions than to waste time on a preliminary hearing. 

There are several reasons that a person may want to have his/her preliminary hearing. They may include: putting witnesses or a law enforcement officer on the record, because the Probable Cause Affidavit left out key information that may show that there is not probable cause.

In any event, if you are charged with a felony, you should seek the advice of a competent criminal defense attorney who can evaluate your particular case and circumstances and arrive at the best strategy for you. No two cases are the same, and each requires individual attention and discussion with a criminal defense attorney.

Prosecutors Reading Inmate/Lawyer E-mails

I just finished reading this article in the New York Times.  It was quite troubling.  It is a hallmark of our law that attorney-client communications are privileged, meaning that they are not subject to review by law enforcement, county attorneys, judges, or others.  I cannot fathom why there would be a distinction between written correspondence sent through the mail and written correspondence sent via the internet.

Certainly I understand (and regularly advise my incarcerated clients) that their communications, whether they be written, telephonic, or otherwise, with others (i.e. not their attorney) are subject to review by the jail, law enforcement, and prosecutors.  In fact, I have seen situations where those very communications lead to new charges for witness tampering, as well as being used as proof for the underlying offense.  And this, from society's prospective, makes sense to ensure that witnesses aren't being tampered with, criminal activities are not ongoing, public safety, etc.

But I do have a problem with inmates being lead to believe that their conversations with their attorneys are private/confidential/privileged, and then those conversations and statements being used against them.  This is just plain wrong, and I believe contrary to our system of law and justice.

Moreover, as the Court recently recognized in the Riley case, how we communicate with each other and interact with our world is changing.  When these types of systems are put in place to facilitate regular and easy contact between incarcerated clients and their attorneys (which I applaud), then they need to be protected just as more antiquated systems for contact (such as the mails).  Otherwise, these systems are entirely useless to attorneys as a means to communicate with incarcerated clients.