THE ANATOMY OF A CRIMINAL CASE

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ARREST.

The person suspected of commiting a criminal act is arrested.

If the target person is not immediately arrested, that doesn’t mean that he or she won’t be at some later point. If arrest doesn’t happen immediately, it likely means that the police are continuing to investigate the incident and are trying to obtain sufficient evidence to arrest the target person.

If there is delay, this may be the time when the police will try to elicit a statement from the suspect. NEVER SPEAK WITH THE POLICE UNDER ANY CIRCUMSTANCES WITHOUT CONTACTING AND CONSULTING WITH A LAWYER FIRST.

RELEASE.

After arrest, the police can release a person O.R., which means on their own recognizance, in which case bail does not have to be posted, or they can release him or her after the bail amount set is posted.

BAIL AMOUNT.

There is a bail schedule setting bail amounts for each offense. For example, a felony domestic violence bail is $50,000. A misdemeanor DUI bail amount is $5,000. When setting bail, the judge must assume that all of the allegations against the person in custody are true. Bail amounts must be constitutionally reasonable. A motion to reduce bail amount set can be made in court.

ARGUING FOR AN O.R. RELEASE

In urging the court to release my client O.R., I argue that my client has strong ties to the community, that she has hired us to assist her through the process, that she is not a flight risk and that she will appear if necessary at each and every court appearance set. If the judge does release my client O.R., the judge can structure terms and conditions of that release attendance at weekly A.A. meetings.

THE POLICE WRITE A REPORT.

After a triggering event, the police agency writes a report regarding the incident.

ATTEMPT TO PREVENT CRIMINAL CHARGES FROM BEING FILED.

In the event that the target person is not immediately arrested, I can be hired at this point while the investigation is ongoing to try to attempt to prevent a criminal filing against him or her in criminal court. I do this by trying to obtain sworn declarations of people having knowledge of matters which tend to exonerate my client or at least mitigate the situation in some way. I then coordinate with the investigating officers and attempt to submit any and all relevant information which may prevent a criminal filing (for example, attendance at meetings and programs and efforts taken after the event to right things and character reference letters on behalf of my client).

THE POLICE SUBMIT THEIR REPORTS TO THE PROSECUTOR.

After the investigation into the situation is complete to their satisfaction, the police agency submits their findings to the prosecutor who is in charge of deciding whether or not to file the case against our client in criminal court. The prosecutor reviews all materials relevant to or counts against my client. The prosecutor’s filing decision may or may not be consistent with the charges that my client was arrested on.
The prosecutor is herein mindful of the standard that applies to all criminal cases: CAN THEY PROVE MY CLIENT GUILTY BEYOND A REASONABLE DOUBT? The prosecutor is also mindful of the truth that a unanimous jury is required to convict my client: twelve members of the community selected by process of elimination through challenges by both the prosecutor and the defense must all find that my client is guilty beyond a reasonable doubt in order to convict.
EVEN ONE JUROR WHO DOES NOT FIND THAT THE REASONABLE DOUBT STANDARD HAS BEEN MET MEANS THAT OUR CLIENT IS NOT GUILTY and a hung jury (a mistrial) is declared. Different things can happen if this is the outcome in your particular case including, unfortunately, the case can be retried.

INFORMAL PROSECUTOR OFFICE HEARING.

There are cases where I am able to convince the prosecutor before his filing decision to hold an informal hearing in their offices instead of filing a criminal case against my client in criminal court. Typically in these hearings the complaining witness, my client and I are present with a prosecutor in an informal office hearing. After a thorough discussion of the matter, my client is most often released with no penalty.

ARRAIGNMENT.

This is the first court appearance in all criminal cases. The discovery, or the police reports and perhaps some other documents in the prosecutor’s possession that relate to the case is turned over to me at this proceeding. A ‘NOT GUILTY’ plea is entered at arraignment except in extremely rare situations.

MISDEMEANORS.

Misdemeanors are ”low grade” criminal offenses, for example, petty theft, DUI, driving on a suspended license and trepass.  You can do county jail time for all misdemeanor offenses. I CAN APPEAR FOR YOU IN COURT IN MISDEMEANOR CASES WITHOUT YOUR PRESENCE pursuant to Penal Code section 977(a):

YOU NEED NOT APPEAR IN COURT. However, I will let you know if I think your appearance in court would be helpful in some way. 

PRETRIAL CONFERENCE

The pretrial conference is set about a month after arraignment. At the pretrial conference, I conference, or discuss, the case with the prosecutor. I may speak to the prosecutor about the weaknesses in the prosecutor’s case to highlight the reasonable doubt standard that applies to all of my clients.  I may speak to them about factors in mitigation, for example, a history of drug use, alcohol abuse, mental health issues, tough family situations, or marital discord.  I may talk to the prosecutor about things that my client may have done after the triggering event to rehabilitate himself of herself, like attending a drug and/or alcohol rehabilitation center, AA, NA, CA and reference letters written by family, friends, employers, employees and others with personal knowledge of my client and his or her life situation and character traits. There may be several pretrial conferences set throughout a misdemeanor case.

REQUESTS FOR ADDITIONAL DISCOVERY

After a careful review of the initial documentation that the prosecutor provides at your arraignment, I may find that there are holes in their case and that I need more information. It is the prosecutor’s duty to provide any and all information that can help our client. To this end, I may write the prosecutor a letter under Penal Code section 1054. This is an informal letter requesting additional items of information that I require to defend to you throughout the case. For example, if the police report says “ambulance number 53 responded to the scene (ambulance incident report number 2008-99-66432),” our request to this would be that the prosecutor provide us “any and all reports, notations, and recordings in any form, with regard to ambulance number 53, incident report number 2008-99-66432”

There are also times when I seek information without the prosecutor’s assistance directly through the agency that I believe has control of the documentation that I seek: for example, subpoenas to a casino for video surveillance tapes or to a hospital for medical records.

THE PROSECUTOR’S OFFER.

The offer is an offer to settle the case short of going to trial. The offer is plead guilty or no contest to a particular charge with particularized and statutory terms and conditions of probation.

OUR COUNTER OFFER.

Perhaps right after the prosecutor’s offer or, more likely, on a future pretrial conference court date, I may make a counter offer if appropriate. For example, in a DUI case where the breath test results are .09, .10, and the prosecutor’s office is to plead no contest to a standard DUI, I may make a counter offer for an no contest plea to a reduction to a DUI charge, a “wet reckless” for example, or even a dry reckless or a speed exhibition. If the prosecutor wants a plea to a petty theft, I may propose a counter offer for a disturbing the peace of a trespass charge.

HIGHER UPS.

If the prosecutor in court does not extend the offer that I am looking for to benefit my client, I may schedule an in-person or a telephone meeting with a higher-up, supervisory prosecutor to get a second opinion and to try to get the higher-up to authorize a plea agreement more in line with my counter offer.

YOUR DECISION.

At the “end of the road,’ when I have gone absolutely as far as I can to achieve the best possible proposed resolution, the discovery process is complete and the prosecutor has extended his best offer, you have a question to ask yourself and a decision to make WILL YOU RESOLVE THE CASE SHORT OF TRIAL THROUGH A PLEA BARGAIN OR WILL YOU GO TO TRIAL? I will guide you throughout this process and be very straight-forward and honest with you in terms of the likelihood of success at trial and my opinion as to the best course of action based upon all the facts and circumstances at hand.

FELONIES.

Felonies are “high grade” criminal offenses. Examples of felonies are robbery, burglary, murder, rape and weapons charges. Some of these are strike-able offenses pursuant to the Three Strikes Law. YOU MUST APPEAR IN COURT WITH ME IF YOU ARE CHARGED WITH A FELONY. You can do state prison time for all felonies. Statutorily, or by law, each felony holds three possible state prison terms, low, mid and high terms. For example, in a voluntary manslaughter case, the possible state prison terms are 3, 6, and 11 years, low, mid and high terms respectively. In a first degree burglary case, the possible state prison terms are 2, 4 and 6 years.

Pursuant to the new law in AB109 (“re-alignment”), some felony offenses allow state prison time to be served in the county jail.

I HOPE THAT THE ABOVE ASSISTED YOU IN YOUR GENERAL UNDERSTANDING OF WHAT TO EXPECT IN YOUR CASE.  I WOULD LOVE TO DISCUSS YOUR PARTICULAR SITUATION IN DETAIL. 1.800.601.0119.