I held a Jewel in my fingers -- And went to sleep -- The day was warm, and winds were prosy -- I said "Twill keep" -- I woke -- and chide my honest fingers, The Gem was gone -- And now, an Amethyst remembrance Is all I own --
These days it is common in plea negotiations where there is a firearm involved in the facts for a state prosecutor to threaten defense counsel that if the defendant doesn't take the state's plea offer, the defendant's case will be reviewed for federal filing.
The prospects of having a state case go federal is real. In theory any drug or gun case can be both a federal case and a state case. The federal government has concurrent jurisdiction with the state over drug and firearm related offenses. Although most people think otherwise, the concept of double jeopardy does not apply to prevent the federal government from prosecuting the same offense a second time after a state prosecution. But, as a practical matter, the lack of prosecutorial resources keep most state firearm cases in the state courts and the government usually doesn't prosecute a state offender for the same offense again in federal court.
In the past decades, however, with the advent of federal funding for prosecution of firearms and firearm related offenses, more and more state prosecutor offices have had one of their deputy prosecutors sworn in as a Special Assistant United States Attorneys whose sole job is to select for federal prosecution and then prosecute in federal court repeat firearm offenders.
If the case is indicted as a federal offense the client is often facing a sentencing scheme that is two or three times harsher than the state sentencing structure. Once a defendant's case has been referred for review by one of these Special Assistant United States Attorneys, it's a real problem getting the client to believe that the state prosecutor is not bluffing about having the case go federal.
Over the past years I've spoken to numerous individuals who had been detained without bond in the federal detention center because they refused the state's plea offer, set their state case for trial and then found themself arrested on a federal bench warrant. Unbeknownst to the client the federal government indicted, the state then dismissed and the former plea deal, which once looked so bad, became a sought after jewel that was lost forever.
Tuesday, October 16, 2007
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