Monday, November 29, 2010

Plea Bargains in Criminal Cases – Do You Really Want to Plea?

Less than 8% percent of criminal cases go to a jury trial. Many argue that the percentage of individuals who actually make it to a jury is less than five percent. But does it really matter what the number is when we are talking about such low percentages?  Why are defendants not exercising their Sixth Amendment right to a jury trial? The United States judicial system still operates under the ideal that the accused are innocent until proven guilty; so why are defendants accused of crimes relinquishing their given right? While it’s possible that the police are doing a wonderful job of investigating crimes and that everyone arrested is actually guilty of the crime charged, I don’t buy it and neither do you.
So why is this phenomenon repeatedly occurring? I think there are several likely reasons causing criminal defendants to forfeit their rights to a jury trial, but today I’m going to discuss two.
1. Police say what they need to say in order to get the conviction.
Do police officers lie? Yes. Why? I don’t know. But if I had to guess, I would say that it probably has to do with their frustration with the system. Police officers have to deal with individuals at their worst every day and are affected by the negativity. They see these perpetrators go to court, take a deal, and get slapped on the wrist with probation or a fine. Is that justice for the victims? Is that justice for the officers who put their lives on the line for the benefit of society? If you attempt to stand in an officer’s shoes, it is not difficult to see how an officer can feel that the high risks they assume are not fairly balanced against the punishments, or lack thereof, that defendants often receive. Through an officer’s eyes, defendants commit serious crimes and usually wind up pleading only to probation, only to be out on the street again ultimately putting the officer at risk once more. Combine that knowledge with normal daily stresses of the job, and you have an officer who takes justice into his/her own hands, altering testimony, saying what needs to be said in a police report so that the case never goes to trial, the defendant pleads guilty, the State gets the conviction, and the defendant goes to prison.
The career criminal will eventually commit enough criminal acts that he/she will score mandatory prison – finally paying their debt to society. … Right? Maybe. But the problem with this type of “justice” lies with the first time offender. The suspect who is in the wrong place at the wrong time. The guy who has the wrong friend. That guy, maybe you, who gets charged with a crime by an officer who embellishes the truth to get a conviction. Suddenly your life is ruined by the possibility of prison or the criminal record you will receive by a plea bargain to a probationary period. The officer has made the facts look unbeatable, the court system scares you, and so you forfeit your right to a trial by taking a plea. You see no other way out, and now your life is forever changed. That is one reason I believe defendants are throwing away their right to trial, their day in court, their opportunity to be heard, and taking the safe route: because officers have made defending a criminal case seem impossible to defendants.
Why else do defendants forfeit their right to a jury trial?
2. Inexperienced, greedy, lazy Criminal Defense Lawyers.
Walking into the court room every day of the week allows me to watch and critique other criminal lawyers. Who am I to critique others? I’m nobody famous. But I am a guy who took an oath to do my best for my client and I’m the guy writing this blog, so I will call it as I see it. The numbers may not be as low as the numbers of defendants avoiding jury trials, but when looking around the court room it appears that maybe 10% percent of the criminal defense bar actually cares about the system. Sure, all attorneys sit around discussing war stories, convincing themselves and others that they care. But the truth is that they sleep like babies when their clients plea to a crime and/or go to prison… especially when they have been paid their entire legal fee. How is it that 90% percent of criminal defense attorneys drive exotic cars, have $500-$1000 shoes, have multiple houses, but plea bargain nearly 100% percent of their cases without ever taking a deposition? How can they recommend to their clients that they plead guilty or no contest on cases that can be won by doing actual work; by taking depositions, by ordering 911 and dispatch tapes, by going to the scene of the alleged crime, and by talking to their client and witnesses? How?
It’s easy. Defendants have no idea that these lawyers plea bargain every case instead of actually fighting the fight. Criminal defense lawyers take advantage of the fact that the Florida Bar does not allow them to advertise their wins; if no one is actually counting, then attorneys can easily embellish to their clients how great they are prior to getting paid. Once they have their client’s money, the future becomes bleak for the client. Instead of taking depositions, looking for mistakes and constitutional rights violations, and doing actual work to represent the client to the best of their ability, the attorneys offer their professional advice that a plea is inevitable and the best choice, as contrasted against the possibility of prison. There is rarely a mention of the client being innocent until proven guilty. Instead of fighting the case and making the State prove guilt beyond and to the exclusion of all reasonable doubt, these attorneys are quick advise their clients to admit guilt (sometimes when they aren’t even guilty) and sustain convictions that will, in many cases, forever change the clients’ lives. All for the sake of getting paid and quickly getting rid of cases. Defendants take the plea because they trust their lawyer’s advice; they believe that the lawyer is looking out for their best interest. Unfortunately it seems that in actuality, many defense attorneys are looking out only for Number One.
It is sad to see that so many attorneys lack the enthusiasm necessary to do their job properly, even when paid. Did anyone get the memo that pleading Guilty or No Contest should be avoided, if possible, because of its actual effects on the client’s life? Not only can a plea eliminate future possibilities for the defendant, such as the ability to gain employment, rent an apartment, gain admission to a university, but a plea also carries with it numerous negative aspects, such as a criminal record, punishment, and possible future harassment or harsher treatment by police. When positive opportunities cease to exist and are replaced by negative consequences in a person’s life, the individual deteriorates and so does our society.
Whether the client actually committed the crime is irrelevant in this discussion. A defense attorney is supposed to fight for the defendant’s rights, as all of their billboards and advertisements so ironically say.
If you’re a criminal defense attorney and you disagree, re-examine yourself and think about the last case you plead without taking a deposition. Talk is cheap. Take a deposition and work on the case. Don’t plead every case. Force the State to prove your client guilty. When police make mistakes, when prosecutors make mistakes, those mistakes should be revealed and the defendant should walk away. Once enough people walk, the police and State will have to work harder to do their jobs right; they will be held to a higher standard and will be educated on the law. Don’t devalue our society by being lazy and taking the easy plea – take some pride by looking in the mirror at who you really are, not by what you hope is portrayed to people as you disguise yourself as successful with your fancy suits and expensive shoes. Try earning them before wearing them; it makes you feel a lot taller.
If you’re a police officer and you disagree, think about the last report you wrote, or the last time you testified. Was everything negative, or did you actually talk about the weaknesses of the arrest, or what the defendant did well during their roadside sobriety exercises?
If you’re a member of the general public, then I say: you’re welcome. Because it is better that you are informed.

Copyright (c) 2010, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Wednesday, November 24, 2010

The Criminal Process: A Briefing

The criminal justice system can be very complex, extremely difficult, and intimidating without a guide to navigate you through it. The following is a brief explanation of the various steps in a criminal case.
Arrest: The criminal process usually begins when the police have begun a criminal investigation and subsequently take you into custody. “Custody” can mean one of two things: either you were physically arrested (handcuffed, taken to jail, fingerprinted, etc.), or you were served with a written Notice to Appear in lieu of physical arrest. Either way, you are considered arrested and this ultimately means that the government will formally charge you with alleged criminal violations.
First Appearance: After the initial police investigation and arrest, the first court date in a criminal case is First Appearance. During First Appearance, a person who has been arrested will stand in court before a Judge or Magistrate for the first time. That judge/magistrate will determine if there was probable cause for the arrest. If the judge finds that there was probable cause, he or she will set a bond. It is often beneficial to have an attorney present at First Appearance because an attorney can negotiate or argue on your behalf for a lower bond amount. Without an attorney present, the judge/magistrate will set the bond at his or her discretion. From there, the case will go to the State Attorney’s Office.
Case Filing: After the first appearance, a criminal case is then sent to the Case Filing Division of the State Attorney’s Office. There, an assistant state attorney is assigned to review the basic facts of the case and determine how charges should be filed. In making this decision, the case filer reviews police reports and witness information. Based on this, he or she ultimately decides whether the arrest charges should remain the same, be increased, decreased, or dismissed (also called no information). Often this is a critical time for a criminal defendant. If a person suspected of a crime retains an attorney quickly, that attorney may be able to speak with the case filer and influence his or her filing decision by discussing important factors in the case, such as mistakes made by law enforcement and important facts that may not be given in the police report. If the case filer decides to go forward and file the charge against you, despite your attorney’s best efforts, the next step is Arraignment.
Arraignment: Arraignment is a court date for the formal reading of the charges that the case filer has set forth in the charging document (called the Information). Arraignment is also where you will plead one of three ways: Not Guilty, Guilty, or Nolo Contendere (Latin for No Contest).  Unless you want to waive your rights, get your case over with immediately, and you don’t care about being convicted, you will plead Not Guilty. Remember, you are innocent until proven guilty. Not Guilty pleas are entered when you are innocent, when there is insufficient evidence to prove guilt, when you are uncertain how to plea, or when you want to demand your right to a trial. If you hire an attorney before your arraignment, he or she will generally enter a notice of appearance, written plea of not guilty, and request for jury trial for you so that you do not have to go to court on that date. After a formal plea of Not Guilty is entered, the next court date will be set.
[Note that just because your attorney requests a jury trial does not mean you have to go to trial; it is merely posturing to put you on the path that will allow you to get the most information on your case. No one wants to go to trial, and anyone who is eager to go to trial is generally a fool. Requesting a jury trial is merely a formality that will allow you to get Discovery, make arguments, and fight your case as far as you can before even getting to trial. You may wind up not going to trial at all, but in any event, the formality of requesting is generally necessary.]
Discovery: After an attorney signs onto a case, he or she will demand Discovery from the State Attorney. Discovery is essentially all of the evidence the State has available to use against you in your criminal case. It is your right to examine discovery if you are going the trial route, and it includes written documents, police reports, pictures, witness statements, video recordings, audio recordings, etc. Generally, Discovery documents take 60 to 90 days to obtain. Once an attorney is able to examine the discovery, he or she will be able to see who all of the witnesses against you are, take depositions and find out what the witnesses have to say, investigate your case, and form a defense strategy. This is also the time during which your attorney will file applicable motions. Perhaps your Constitutional rights have been violated by an unlawful search and seizure. An experienced attorney will know to file a motion to suppress evidence obtained in violation of your rights. Or, maybe the State does not have sufficient evidence against you and will be unable to prove the elements of the charges. A skilled attorney will know to file a Motion to Dismiss and argue that your case should be thrown out all together. If the motions are successful, odds are your case will be over. If the motions are ultimately unsuccessful, then you will have to decide whether you want to negotiate a plea agreement with the State or take your case to trial.
Plea: If you choose not to go to trial, your attorney will negotiate a plea agreement with the State Attorney that will include the sentence to be imposed. You will ultimately go to court for a Plea Conference and change your plea from Not Guilty to either Guilty or No Contest.  Although the Judge is not required to accept the State Attorney's agreement, most Judges will honor negotiated plea agreements. At this point, you will have to comply with whatever sentence has been negotiated or is imposed, and your case will be over. It is important to note that there are various alternatives in sentencing that may include Pretrial Diversion, Pretrial Intervention, Drug Court, and Probation. Each of these programs has limitations and requirements.  It is extremely important that you seek out an attorney who is familiar with these programs as well as which Judges may or may not look favorably upon these options.
Trial: If you choose to go to trial, your attorney will fight your case either before a Judge or before a Jury of your peers. [Note that you have the right to a Speedy Trial. This means that if you demand Speedy Trial and do not waive your right to it, the State will have to bring you to trial within a certain time period (90 days for a Misdemeanor, or 175 days for a Felony). However, most cases are benefited by waiving the right to a speedy trial to allow an attorney more time to defend the case.] If you are acquitted during Trial by a Judgment of Acquittal or you are found Not Guilty by the Judge or Jury, your case is over and you are free to go. You cannot be retried under Double Jeopardy protections. If, however, you are found guilty, there will be a Sentencing Hearing.  This will give you, your attorney, and any other interested persons the opportunity to speak on your behalf; this is the time to present witnesses who will testify as to your character.  For the purposes of sentencing, the Judge may order a Pre-Sentence Investigation into your background and circumstances. At the end of the hearing, after the Judge has considered everything put before the court, the Judge will impose a sentence. Hopefully, though, you will be acquitted during trial and will not ever have to worry about a sentencing hearing.
Appeal: A person convicted of a crime has the right to appeal his or her conviction. During the appeal process the Judge may allow your release on bail pending the outcome; however, the Judge will only do this if he or she believes that the appeal has merit and that you will reappear in court.  An appeal must be filed within 30 days of sentencing, but should be filed as soon as possible.
Although this explanation doesn’t cover everything you will encounter in the criminal justice system, hopefully it gave you a basic understanding of what you can expect. If you have any questions, do not hesitate to call an attorney to guide you through the process.

Copyright (c) 2010, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Tuesday, November 23, 2010

Law Updates for November 19, 2010

Riggins, 35 FLW 2480, error to deny JOA - Charge of operating unregistered vehicle where the sole evidence presented by the state was officer's hearsay testimony that he ran VIN through database on his in-car computer and determined that the car was not registered properly.  Testimony did not fall "within absence of record or entry" exception to hearsay where officer did not perform a diligent search that failed to disclose a record that should have been made and preserved.  State failed to call witness who could have established a foundation. Officer only relayed the date written on the expired tag and the date of the traffic stop with nothing more.

The Law Offices of Roger P. Foley,P.A.

Friday, November 19, 2010

Law Updates for November 12, 2010

Quick, 35 FLW 2451, 4th DCA, Jury instructions - Error to deny def's request for jury instruction on the affirmative defense of lack of knowledge that substance he possessed was cocaine where he testified that he did not know the glass pipe in which cocaine residue was found contained cocaine at exact time of his arrest. Error not harmless where lack of knowledge of what the pipe contained was def's sole defense.

M.L. 35 FLW 2456, 3rd DCA, Officer's warrant-less of a seizure of a pipe with residue. Officer observed pipe partially sticking out of a bag on the floor near where juvenile was sleeping. Was not justified under the plain view exception. State failed to present evidence that it was immediately apparent to officer that partially concealed pipe in the bag contained evidence of a crime or illegal paraphernalia, or that the officer, prior to seizure, had probable cause to believe that the pipe was evidence of criminal activity.

Bennett, 35 FLW 2461, 2nd DCA, Trafficking in Cocaine-Constructive Possession - Drugs found in living room and bedroom of cottage, some of it in plain view, where evidence failed to show def had control over the premises and no independent proof that the def had dominion and control over the contraband. Fact that def's drivers license and a letter addressed to him were found on or in cardbox box containing men's clothing and sandwich bag containing drugs insufficient to establish dominion and control over contraband where evidence did not show the cottage was def's residence or suggest how many others have visited or used cottage and did not prove who owned the clothes in the open box.

The Law Offices of Roger P. Foley,P.A.

Tuesday, November 16, 2010

Law Updates for November 5, 2010

Urban, 35 FLW 2416, 5th DCA, Youthful Offender - Trial court applied wrong version of statute and is refusing to consider Y.O. for def who was under age 21 on the date of the crimes, but over 21 at the time of the sentencing. Statute at time of the offense applies.

Post-Graham, Manuel, 35 FLW 2417, 2nd DCA, Attempted First Degree Murder with Firearm - Sentence of life in prison without possibility of parole constituted cruel and unusual punishment under the 8th Amendment where def was juvenile when he committed the non-homicide crime at issue.

The Law Offices of Roger P. Foley,P.A.

Depositions and DUI

Driving Under the Influence charges are generally misdemeanors, which means that the ability to depose witnesses is not guaranteed. In order to be able to take a misdemeanor deposition, Florida Rule of Criminal Procedure 3.220(h) requires that "good cause" be shown to the judge. To determine if there is good cause to order depositions, the judge will consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony, and the other opportunities available to the defendant to discover the information sought by deposition. Some jurisdictions make it difficult to take depositions in misdemeanor cases, which means that lawyers have to be creative in finding other means to get the information. But, when a deposition is permitted, it should be taken.

Depositions are extremely important resources in the defense of a criminal case. Often, a simple question asked in a deposition will lead to the discovery of information that the defense attorney and prosecutor did not know existed, such as an additional police report, or witnesses that were on scene but not noted. Depositions show the defense lawyer what to expect the witness to say at a later court date and/or provide fodder to impeach the witness if his story later changes. Depositions also provide valuable insight to possible flaws in the case that may not have been otherwise revealed through the standard discovery documents. Examining these flaws can help a case by either revealing grounds for motions to suppress evidence or motions to dismiss the case based on a violation of a Constitutional right, or by simply showing the prosecutor the weakness of the case and giving a lawyer grounds to argue that the case should be dismissed or broken down into lesser charges.

Unfortunately, many attorneys do not take depositions in misdemeanor cases. It is possible that this is due to their feeling that depositions in misdemeanor cases will not reveal anything new or believing that they are a waste of time. However, depositions are a great tool that is extremely under-utilized in the current legal arena. Attorneys who do not take depositions are missing out on a wealth of information that they may not even realize exists in each case. More often than not, an officer's answers in a DUI deposition will reveal extremely helpful defense issues such as Taylor warnings not being read, simple improper phrasing by an officer that turns a request into a command, invalid consent for searches, and numerous other grounds for suppression that may never have otherwise crossed a lawyer's mind when reviewing a case.

Hiring an attorney who will work hard to get all of the information available is important in successfully defending against criminal charges. Although depositions are not always necessary, a case cannot usually be properly defended without digging deep, going outside of the box, and searching for the answers that aren't necessarily obvious at first glance. Depositions are just one weapon in a defense attorney's arsenal, but they can be one of the deadliest if used properly. Defense strategies are always formed more completely when all of the information available is laid out for the attorney to see. Why wouldn't an attorney use such a great tool that is available at the simple filing of a motion?

Copyright (c) 2010, Law Office of Roger P. Foley

Tuesday, November 2, 2010

Law Updates for October 29, 2010

R.O., 35 FLW 2320, 3rd DCA, Possession of Cocaine - Trial judge departed from neutral arbiter and became advocate for prosecution when he questioned juvenile regarding his possession of cocaine after defense counsel completed his direct examination of juvenile without questioning juvenile regarding cocaine possession. Remand for new trial before a different judge

Fudge, 35 FLW 2322, 3rd DCA, Vindictiveness - Where state made the plea offer to dispose of all 3 cases with a sentence of twenty five years with mandatory ten on the condition the def would not appeal his conviction in a jury verdict case, and trial court sentenced him to life after def refused to give up right to appeal in jury verdict case. Sentence was vindictive.

The Law Offices of Roger P. Foley,P.A.