Trust Your Daddy
You are about to take a ride on the criminal justice highway! There are many speed bumps along the way and many stops where you can successfully get off this ride. Most of the following is written about the adult system, but the juvenile system is similar. For example, if you're 16 and under, your case goes to the juvenile court. But if you're 17 and over, it's the adult system for the same exact conduct. So, if you're in a car with sixteen-year-olds and you're 17, and somebody does something stupid, the cops will call their parents, but YOU will go to jail! Sound fair? I didn't think so. Either way, you need a great lawyer to help you navigate this path! Click below to learn more about any one of these areas.
1. Suspect in an Investigation
For whatever reason, or sometimes for no reason, you have become the target of a criminal investigation. Perhaps someone has told the police that you have committed a crime. Maybe the police saw you talking to someone already under surveillance, or you visited a place under surveillance. Maybe you are recorded talking on the phone about a matter under suspicion. Or, maybe you feel you may have been caught “red-handed.” What do you do?
The First Rule of Criminal Defense
Write this rule in stone: never, never speak to the police.
So many times, people think that if they decline to speak with the police, they will appear guilty. Nothing could be further from the truth. A person who chooses to keep silent understands that the police officer’s only goal is to gather evidence against you. Against YOU! Don’t help him do that! I promise you will only come to regret it. You might look guilty to an agent who already believes you are guilty. But who cares? If you start talking, you may just remove all doubt!
So many times, people think that if they decline to speak with the police, they will appear guilty. Nothing could be further from the truth. A person who chooses to keep silent understands that the police officer’s only goal is to gather evidence against you. Against YOU! Don’t help him do that! I promise you will only come to regret it. You might look guilty to an agent who already believes you are guilty. But who cares? If you start talking, you may just remove all doubt!
2. Suspect in a DUI
This is especially true during DUI investigations. When pulled over on suspicion of DUI, an officer will try to gather enough evidence to justify an arrest. An arrest is the only way that the officer will be able to force you to take a blood/breath/urine test. If the officer asks you to submit to one of these tests before you are arrested, the results will be inadmissible! How do they gather this evidence, you ask? By conducting so-called “field sobriety tests.” These “tests” are designed to make you fail. These tests are ridiculous. These tests are not required by any law. You can and should refuse to perform these tests! If you perform these tests, you will only give the officer the reasons he needs to arrest you. Even the hand-held breath test (called an Alco-Sensor) is a field test that you have every right to refuse.
The Second Rule of Criminal Defense
This is an extension of the first rule: do not submit to field sobriety tests!
If you are actually arrested for DUI, the officer will likely ask you to submit to an official test of your blood/breath/urine. Only the officer can decide which of the tests he will request. If he requests breath and you say you will only take a blood test, that can be interpreted by the officer as a refusal. Again, you can refuse. It is your legal right. But this time, a refusal has consequences. If you refuse this test, your driver’s license will be administratively suspended for one year — even if you are proven not guilty.
If you are actually arrested for DUI, the officer will likely ask you to submit to an official test of your blood/breath/urine. Only the officer can decide which of the tests he will request. If he requests breath and you say you will only take a blood test, that can be interpreted by the officer as a refusal. Again, you can refuse. It is your legal right. But this time, a refusal has consequences. If you refuse this test, your driver’s license will be administratively suspended for one year — even if you are proven not guilty.
3. Multiple Suspects
What about situations when you are not the only suspect? Multiple defendant cases are tricky. But the principles are the same. Don’t talk and don’t cooperate. This does not mean you should be discourteous! Remember, the police have awesome power, and they frequently abuse that power.
The Third Rule of Criminal Defense
If there are several suspects, remember: “Nobody talks, everybody walks.”
You may have heard of an ancient philosophical theorem known as “the prisoner’s dilemma.” In this dilemma, two people are accused of committing a crime together. The police tell both suspects that the first one to confess will receive a very lenient sentence (1 year in jail) if he cooperates against the other suspect. Then, the uncooperative suspect will get a harsh sentence (10 years). If both suspects confess, they will each receive a medium sentence (5 years). If neither suspect confesses, they will both go free! You get the point. Not knowing if the other suspect will confess, you must deliberate between confessing and going to jail for 1 or 5 years or keeping quiet and wondering if you will go free or get 10 years. This dilemma is a philosophical contrivance, seldom applicable in the real world.
You may have heard of an ancient philosophical theorem known as “the prisoner’s dilemma.” In this dilemma, two people are accused of committing a crime together. The police tell both suspects that the first one to confess will receive a very lenient sentence (1 year in jail) if he cooperates against the other suspect. Then, the uncooperative suspect will get a harsh sentence (10 years). If both suspects confess, they will each receive a medium sentence (5 years). If neither suspect confesses, they will both go free! You get the point. Not knowing if the other suspect will confess, you must deliberate between confessing and going to jail for 1 or 5 years or keeping quiet and wondering if you will go free or get 10 years. This dilemma is a philosophical contrivance, seldom applicable in the real world.
4. Choosing a Lawyer
If you are a suspect, you definitely need a lawyer. When dealing with legal actions, it is important to know all the facts and rights that you are allowed. In Gainesville and surrounding areas, the CLC is known for having the best experience in criminal defense. Whether you are a suspect in a case, accused of drug procession, DUI, or any other legal matter, they can assist you. Their highly qualified attorneys are able to focus on their individual clients to give them their full attention and care. With their around-the-clock services, they are available whenever you need them. When choosing a lawyer, choose CLC so that you can rest assured your case will be handled thoroughly and professionally.
The Fourth Rule of Criminal Defense
Choose a great lawyer, and you will have a great defense. Choose an average lawyer, and you will have an average defense.
It will do you no good to get a cheap lawyer. In this business, you get what you pay for. Also, you should choose a lawyer quickly, lest you waste away in pre-trial detention while the evidence of your innocence goes stale.
A great lawyer will work the case hard on the front end, not wait around to see what happens next. A great lawyer will gather the evidence and witness statements you will need to fight the charges being considered against you. A great lawyer will dissuade the police from making an arrest in the first place. This is your first chance, and perhaps the most important chance, of getting off this ride before your reputation is smeared by a lazy investigation or a careless accusation.
It will do you no good to get a cheap lawyer. In this business, you get what you pay for. Also, you should choose a lawyer quickly, lest you waste away in pre-trial detention while the evidence of your innocence goes stale.
A great lawyer will work the case hard on the front end, not wait around to see what happens next. A great lawyer will gather the evidence and witness statements you will need to fight the charges being considered against you. A great lawyer will dissuade the police from making an arrest in the first place. This is your first chance, and perhaps the most important chance, of getting off this ride before your reputation is smeared by a lazy investigation or a careless accusation.
5. Arrested for a Crime
After a brief investigation, or sometimes even at the scene of a crime, a suspect will be arrested. Police officers don’t like unsolved cases. They are going to make a charging decision as soon as possible. If you are in their line of fire, it may be you. Again, say nothing other than, “I will not talk to you. I want my lawyer.” You cannot simply remain silent — you must clearly verbalize your demand for a lawyer. In Gainesville and surrounding areas, the CLC is known for its expertise in criminal defense and can provide you with any attorney services you may need.
When you are arrested for a crime, this is the time to act like a gentleman or lady. This is not the right time to plead your case or apologize for your conduct. Your words will fall on deaf ears, and the indifference or even rudeness you experience will only upset you. If you have the misfortune of being wanted by another agency or jurisdiction, you may also face extradition to that other place for prosecution.
When you are arrested for a crime, this is the time to act like a gentleman or lady. This is not the right time to plead your case or apologize for your conduct. Your words will fall on deaf ears, and the indifference or even rudeness you experience will only upset you. If you have the misfortune of being wanted by another agency or jurisdiction, you may also face extradition to that other place for prosecution.
6. Posting a Bail Bond
When you are delivered to jail, you may have a chance to post a bond immediately, especially if the crime charged is a simple misdemeanor. A bond is an amount of money you can pay as a deposit or guarantee that you will come back to court when your case is called for trial. This process is also called “being bailed out” or “bailing out.” Of course, there are exceptions. If you are charged with being under the influence of alcohol or drugs, you will not be released until you are sober. If charged with a misdemeanor domestic violence charge, you will not be released until your first appearance with a magistrate. At jail, there are often preset bond amounts for common offenses such as DUI, shoplifting, possession of marijuana, etc. This is called a “schedule” of bonds. Remember that under Georgia law, you MUST be given a bond for any misdemeanor offense.
If you are already on probation and commit a new offense or are re-arrested for violating your previous misdemeanor bond conditions, you will likely be denied any bond. For felony offenses, schedule bonds are still possible but less likely. There are three ways to post a bond: cash, property, or surety.
A cash bond is exactly what you think it is — paying a sum of currency in full directly to the jail. When the case is over, you get all of your money back. If you don’t come to court every time required, you will lose that money to the government. A property bond is also paid at the jail, but instead of cash, you offer the title to a piece of real property as collateral for your appearance. Each county jail has different rules about posting property. But the sum is universal. The accused may not be on the title of the property. All persons named on the title must sign the bond. The difference between the county valuation of the property and the total debt on the property is the equity amount. The equity amount must be greater than the bond amount, often by a factor of two. It is the responsibility of the person posting the bond to bring proof of title ownership and mortgage balance to the jail.
A cash bond is exactly what you think it is — paying a sum of currency in full directly to the jail. When the case is over, you get all of your money back. If you don’t come to court every time required, you will lose that money to the government. A property bond is also paid at the jail, but instead of cash, you offer the title to a piece of real property as collateral for your appearance. Each county jail has different rules about posting property. But the sum is universal. The accused may not be on the title of the property. All persons named on the title must sign the bond. The difference between the county valuation of the property and the total debt on the property is the equity amount. The equity amount must be greater than the bond amount, often by a factor of two. It is the responsibility of the person posting the bond to bring proof of title ownership and mortgage balance to the jail.
7. The First Appearance Hearing
This essential hearing is often conducted by closed circuit television between the accused, who is in jail, and the magistrate, who is at the courthouse. This is where the judge tells you for the first time what the charges against you are going to be. Again, do not try to plead your case at this time. It is important not to say anything specific about your case or anything that could incriminate you because it can be used against you in court. The judge will also ask you if you have a lawyer or want the court to appoint a public defender to represent you. This is also a chance for you to ask for a bond if you do not have one already. Most importantly, this is your chance to request a preliminary hearing, also called a committal hearing or probable cause hearing.
8. The Preliminary Hearing
The preliminary hearing is also sometimes called a committal hearing or probable cause hearing. This hearing is conducted in the magistrate court. The prosecutor must present evidence at this hearing sufficient to convince a judge that there is enough credible evidence to allow the charges to go forward to the next level. If not, the charges will be dismissed. However, there is a low threshold of evidence required to keep the charges alive. The government still must make a showing. They do this by calling at least one witness to testify, who is usually the arresting officer, and that’s where we make a strong first strike. We tape-record the hearing. We cross-examine the officer — probing weaknesses in the evidence and contemplating the best defense strategies. If the planets align, we could win the case at this hearing! Unfortunately, the government has a right to revive a case that is dismissed at the preliminary hearing. They do so by presenting the case to the grand jury. If the grand jury believes there is enough evidence, the case will be indicted and put on a trial calendar. The CLC attorneys in the Gainesville area are highly qualified for any preliminary hearing and are available at any time.
The Fifth Rule of Criminal Defense
Remember that it’s all about relationships.
More cases are won and lost based on the relationship that the defense attorney has with the officer, prosecutor, and judge. If the officer, prosecutor, and judge hate your lawyer, how do you think they’re going to feel about you? A great criminal defense attorney will craft deep professional relationships over decades and deploy those bridges to help his client safely to the other side of this nightmare.
More cases are won and lost based on the relationship that the defense attorney has with the officer, prosecutor, and judge. If the officer, prosecutor, and judge hate your lawyer, how do you think they’re going to feel about you? A great criminal defense attorney will craft deep professional relationships over decades and deploy those bridges to help his client safely to the other side of this nightmare.
9. Defense Investigation
You can win your client’s trial by showing all the holes in the government’s case. But it’s infinitely more satisfying to win the trial by solving the case the government couldn’t solve AND proving your client is not just not guilty, but actually INNOCENT! I do this by conducting my own investigation with all the passion and commitment missing from the government’s investigation. Evidence of innocence should be developed early in the case. It is important to preserve it in every way possible. If phone records show where you were or who you were talking to, get the phone service provider a subpoena to preserve the information. Sometimes, these records are destroyed after just a few weeks. Georgia law says that the prosecutor does not need to produce discoverable evidence for the defense until 10 days before the trial.
10. Grand Jury Indictment
The grand jury must consider sworn testimonial evidence from government witnesses in order to authorize the further prosecution of any capital felony or any serious violent felony. Some simple felony drug cases may be prosecuted by an accusation, a simple written charge prepared by the prosecutor. No misdemeanors are considered by the grand jury unless they are incident to a felony charge. The grand jury has enormous power. They can accuse or dismiss charges. They can conduct independent investigations. They can make recommendations to the community based on their findings. But that power is usually unknown to them because the district attorney wields their power for them.
11. Arraignment
This is a formality. An arraignment hearing is the first time that the court will formally notify an accused about the specific charges and will receive a plea of guilty or not guilty. It is the rare case when an accused will enter a guilty plea, but if so, the defendant will likely be sentenced at that time.
Many attorneys do not even conduct a formal arraignment in the sense of bringing the defendant up to the podium to have an individual audience with the judge. Rather, most counties meet informally with the defendant or his attorney and make a notation of a not-guilty plea. Then, the calendar is called before the judge, and the notations are communicated to the court. Many attorneys waive this arraignment hearing entirely by simply mailing in a written plea of not guilty. Even if you plan to enter a negotiated plea of guilty in your case, it is best to do so at a later time, after reflection and analysis of the evidence.
One important comment about the date of the scheduled arraignment: this date is the start of your 10-day window within which to file all pre-trial motions, such as demands for discoverable evidence (police reports). If you fail to file such motions, you could forever lose the right to file those motions.
Many attorneys do not even conduct a formal arraignment in the sense of bringing the defendant up to the podium to have an individual audience with the judge. Rather, most counties meet informally with the defendant or his attorney and make a notation of a not-guilty plea. Then, the calendar is called before the judge, and the notations are communicated to the court. Many attorneys waive this arraignment hearing entirely by simply mailing in a written plea of not guilty. Even if you plan to enter a negotiated plea of guilty in your case, it is best to do so at a later time, after reflection and analysis of the evidence.
One important comment about the date of the scheduled arraignment: this date is the start of your 10-day window within which to file all pre-trial motions, such as demands for discoverable evidence (police reports). If you fail to file such motions, you could forever lose the right to file those motions.
12. Pre-Trial Motions Calendar
The scheduling of pre-trial motions is an important stop on the criminal justice highway. There are an infinite number of possible motions. A motion is simply a request for the court to act in some way on your case. But by far, the most significant motion in a criminal case is the motion to suppress. A motion to suppress is an allegation that the evidence or statements obtained by the government and which will be used against an accused were obtained in violation of the Constitution of the United States and Georgia. If we can prevail upon the court that the government obtained evidence illegally, the court will punish the government by refusing to allow them to use the evidence against you. This almost always results in the case being dismissed!
13. Calendar Calls
This is merely a status update meeting with the judge. It is often a good time to point out that the State has not given you the discovery materials. Cases are called in order of indictment/accusation number. Judges generally don’t like old cases lingering on their calendars. So, you can expect that the cases will be tried when ready and with preference to the oldest cases first. At the calendar call, you can tell the judge whether the case is ready for trial or not, and if not ready, why not — what is needed to get the case ready? Are motions needed? Is evidence missing? Are witnesses available? Are there any scheduling issues? Generally, the defendant is expected to appear for this calendar call, though you should follow your attorney’s instructions in that regard. If your attorney has been able to convince the State of your innocence, the State may announce a dismissal (also called a Nolle Prosequi) of your charges.
14. Guilty Plea or Trial? (Jury Trial vs. Bench Trial)
After fully evaluating your case, you and your attorney have to make a decision. Are you going to be able to negotiate a plea bargain you can live with? A great lawyer will get you the best deal possible so that you have a baseline from which to evaluate whether or not to take the deal or fight on with a trial. Ninety percent of all cases end in a guilty plea of some kind. Often, there is a charge reduction, meaning that the more serious charge is dismissed in exchange for a guilty plea to a lesser offense. If a charge reduction cannot be secured, the recommended sentence can often be minimized to avoid unnecessary incarceration or conditions. For those who need therapeutic rehabilitation, there are even alternative sentencing programs and treatment courts. Talk to your lawyer about the best choice for your particular case. When you plead guilty, you give up a lot of your rights. You give up the presumption of innocence in your favor. You give up the right to make the State prove you are guilty beyond a reasonable doubt.
These are essential rights and should never be given up without a clear understanding of the implications.
These are essential rights and should never be given up without a clear understanding of the implications.
Special Considerations for Foreign Nationals
There can be some serious additional consequences of a conviction for non-citizens — namely, deportation. Oftentimes, deportation is a worse consequence to the accused than the risk of punishment for the underlying offense. This is especially true when facing a status offense, such as driving without a license or working with a false identification.
The U.S. Supreme Court has now said that a lawyer has an affirmative duty to investigate the potential immigration consequences and accurately inform the accused of those consequences. When you plead guilty, the State will make a recommendation for sentencing, but only the judge will decide your actual sentence. The judge usually follows the negotiated recommendation, and if she doesn’t, you will be allowed to withdraw your plea. You can plead guilty without entering into a negotiated plea bargain with the State. But this is very risky. If you plead guilty without a recommendation, whatever the judge decides will be final, and you cannot withdraw your plea if you are dissatisfied with the decision.
The U.S. Supreme Court has now said that a lawyer has an affirmative duty to investigate the potential immigration consequences and accurately inform the accused of those consequences. When you plead guilty, the State will make a recommendation for sentencing, but only the judge will decide your actual sentence. The judge usually follows the negotiated recommendation, and if she doesn’t, you will be allowed to withdraw your plea. You can plead guilty without entering into a negotiated plea bargain with the State. But this is very risky. If you plead guilty without a recommendation, whatever the judge decides will be final, and you cannot withdraw your plea if you are dissatisfied with the decision.
15. Verdict
The end of the trial brings the jury’s verdict. It will be either guilty or not guilty (in very rare cases, a finding of not guilty by reason of insanity is possible). The jury will not find you “innocent.” However disconcerting this concept, a not-guilty verdict is good enough, and we will take it! If the verdict is guilty, we move to sentencing.
16. Sentencing
There are ranges of punishment written into the statute for each criminal offense. There are minimum and maximum punishments that cannot be violated by the judge in imposing a sentence. Sentencing hearings are also delicate. You have just spent a week or more waging a battle. You lost. But the war isn’t over. You could still win a sentencing victory for your client. I do not devote much space to sentencing here since every case is distinct.
17. Motion for a New Trial
If the judge, jury, or prosecutor made errors during the trial, you have the right to ask for a new trial to correct the miscarriage of justice. In some cases, the filing of a motion for a new trial is a prerequisite to the filing of an appeal.
18. Appeal
There are different kinds of appeals: direct appeals, discretionary appeals, and petitions for a writ of habeas corpus. Appeals of criminal convictions are direct appeals. If the conviction was for a death penalty case, the appeal will be docketed in the Supreme Court. If the appellate issues involve constitutional issues, the appeal will also be filed in the Supreme Court. Otherwise, appeals will be filed in the Court of Appeals. Discretionary appeals are for issues involving non-final court rulings, probation revocations, and other limited scenarios. The writ of habeas corpus is the oldest time-honored vehicle to collaterally attack convictions in the court of conviction or the county of incarceration. For more information on the appellate process, call my office.