Dispatches From The Defendant's Side Of The Criminal Law: Scare Them To Death Or Work Them To Death

Tuesday, October 16, 2007

Scare Them To Death Or Work Them To Death

The term plea bargaining can be defined as the process whereby the defense and the prosecution in a criminal case work out a mutually acceptable disposition of the defendant's case. That disposition, called a plea agreement, is subject to court approval. Properly negotiated and structured, plea agreements in general benefit defendants, the government, and the judiciary. In addition, the public benefits from plea-bargaining because plea agreements result in the conservation of public resources as well as the quick disposition of criminal cases.

Although to a defense attorney there are no sweeter words than the two words "not guilty," years of experience have taught me that a client is usually better served by a good deal than by going to trial. Unfortunately what the prosecutor offers is usually not what the defense would call a good deal.

There are more than a few defense attorneys, derisively called "dump trucks," who, when faced with bad facts and a bad plea offer, will turn on their clients to get them to plead guilty no matter how bad the deal. The true masters are those who when faced with bad facts, no defense and a bad plea offer, still manage to get their clients a better deal and a reasonable sentence.

How do the masters do it? To paraphrase what John Houseman used to say in his commercials for Smith Barney, "they earn it."

The defense attorneys who get the best deals are the ones who have a reputation for trying tough cases and making the prosecutor work hard to gain a conviction. Nothing motivates a busy prosecutor to deal away a case more than the thought of having to spend the weekend working to reply to numerous legal memorandums or even worse, the thought of losing face by possibly losing at trial. Even though the case is a slam dunk winner for the prosecutor the true master makes his/her client's case the prosecutor's worse nightmare, a case from hell. Like the constant drip, drip, drip of water on a rock, you have to wear the prosecutor down in order to extract every concession possible.

Scare Them To Death Or Work Them To Death. That's the way you do it.

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Outline Of A Federal Case

The following is a very broad overview of the stages of a typical federal criminal case.

Defendants are usually brought to federal court in the custody of federal agents. Unless the Grand Jury has already charged the defendant by indictment, the charges against the defendant are set forth in a criminal complaint. The criminal complaint is accompanied by an affidavit that summarizes the evidence against the defendant.

At the defendant's first appearance the defendant will appear before a federal magistrate judge. This magistrate will preside over the first two or three appearances, but the case will ultimately be referred to a federal district court judge.

The prosecutor appearing for the government is called an "Assistant United States Attorney," or "AUSA." There are no District Attorney's or "DAs" in federal court. "

When a defendant first appears before a magistrate, he or she is informed of certain constitutional rights, such as the right to remain silent. The magistrate judge informs the defendant of the charges and the statutory maximum sentence that accompanies each charge. The "statutory maximum" is the most jail time that a defendant can receive -- it is rarely the actual sentence that is given. The magistrate judge then turns to the issue of release, or bail.

If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by the Bail Reform Act (18 USC § 3141 et seq.). There are some types of criminal charges where the government gets an automatic three days to prepare for a bail hearing. These are called presumption cases and include offenses such as drug dealing, child sex and child porn offenses and crimes of violence, like bank robbery. The government may also try to detain by proving that the defendant is a flight risk, or a danger to the community. In those instances the government also gets three days to prepare for the bail hearing. The defense can ask for up to five days to prepare for the bail hearing.

Pretrial Services is a neutral court agency that interviews the defendant, prepares a short life background and criminal history for the court and makes a bail recommendation. The defendant’s attorney should accompany the defendant to the pretrial services interview.

Before the bail hearing, the attorney works with the defendant to identify resources to post for bail. Bail bondsmen are usually not involved in federal court. If the defendant is released at the bail hearing, it is often with conditions. Typical conditions include reporting to Pretrial Services and drug testing. More restrictive conditions can include electronic home monitoring or release to a halfway house facility.

Within 10 days of the initial appearance for in-custody defendants, and within 20 days of initial appearance for out-of-custody defendants, a defendant is entitled to a preliminary hearing or, if indicted, arraignment.

There are always federal grand juries sitting in the Western District of Washington. A defendant will usually be arraigned on an indictment instead of having a preliminary hearing. This is because the government usually elects to indict rather than give the defendant a preliminary hearing and a Grand Jury indictment eliminates the need for a preliminary hearing.

An indictment is a formal charging document that contains the federal charges faced by the defendant. The goverment presents evidence to the grand jury, and if there is sufficient evidence to to establish probable cause, the grand jury returns an indictment, which is also called a true bill. There can be many indictments brought in one case – later indictments are called "superceding indictments."

At arraignment the defendant enters a not guilty plea. The clerk will announce a trial date and a date that pretrial motions must be filed. The defense attorney will also ask for discovery. Once there is an indictment the case gets a new case number. The initials on the end of the number are those of the district judge to whom the case has been assigned.

A district court judge, or "Article III" judge, is appointed by the President, confirmed by the Senate, and serves for life. The district court judge will preside over the rest of the case, for all hearings, the trial, and sentencing.

There are an enormous variety of pretrial motions that can be filed in a criminal case. These can include constitutional challenges, motions for a bill of particulars, motions to strike surplusage, and severance motions. The most typical pretrial motions are suppression motions where the defense moves to suppress evidence, or to prevent the government from using certain evidence at trial. Suppression motions can include suppression of evidence, like a gun or drugs seized in a search, or statements, like a defendant’s confession.

In the vast majority of federal cases, the defendant pleads guilty and does not go to trial. A defendant can plead guilty as charged or or can strike a deal with the prosecutor and enter what is called a plea agreement. Often the defense attorney and government attorney will spend considerable time negotiating the terms of a plea agreement.

In considering whether to accept a plea agreement the defense attorney will discuss with the defendant the benefits of pleading guilty versus the sentencing consequences if the defendant is convicted after trial. The greater the benefit under the plea agreement the more likely the attorney will recommend that the defendant accept the plea agreement. However, the attorney can only give advice; it is the defendant’s decision alone on whether or not to accept a plea offer or to go to trial.

A small proportion of federal cases go to trial. The typical federal trial lasts three days to a week but some trials, usually multiple defendant "white collar" crimes and complex drug conspiracies, can takes several weeks to try.

At trial, the defendant has a right have the case decided by a jury of 12 citizens. The defense can preemptory excuse jurors whom it feels will not be favorable to the defense case and excuse for cause jurors who are biased or indicate that they cannot be fair and impartial.

At trial the defendant has many right including the right to testify – or to not testify, and if he or she does not testify, that cannot be held against the defendant by the jury. The defendant also has the right to "confront" and cross-examine government witnesses and government evidence, and can use the subpoena power of the court to secure evidence or witnesses on his or her behalf for trial. The defendant is not required to prove him or herself innocent; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if all 12 unanimously agree that the government has proved every element of the charge beyond a reasonable doubt can the jury return a verdict convicting the defendant of some or all of the charged crimes.

A defendant can be convicted of an offense by either pleading guilty or by being found guilty after a trial. If a defendant is convicted, sentencing will take place approximately seventy-five days later if the defendant is in custody, or ninety days later if the defendant is out of custody. If out on pretrial release a defendant convicted of a crime will often be remanded into custody after trial.

Probation, like Pretrial Services, are officers of the court and are neutral – they don’t answer to either the defense or the prosecution. Several weeks after the conviction, the defendant will be interviewed by a Probation Officer, with defense counsel present. The Probation Officer will then take information from that interview and along with material provided by the government, and will prepare a draft presentence report (or PSR). The draft presentence report is provided to defense counsel and the government thirty-five days before sentencing. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge.

Fourteen days before sentencing, the final PSR is provided to the judge. This final PSR describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. It also includes a recommended sentence, and lists any unresolved objections. Seven days before sentencing, the parties submit sentencing memoranda to the court, arguing for their proposed sentences. Three days later, the parties may submit replies to the sentencing memos. At the sentencing hearing, the district court judge will resolve any remaining objections to the PSR, make factual findings, and will consider the factors of the key sentencing statute - 18 USC § 3553(a) in deciding upon a sentence.

In addition to a custodial sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate. Before imposing the sentence, the court must permit the defendant to speak (or "allocute.")

After conviction the defendant has 10 days to file a notice of appeal or the right of appeal is lost.

Dispatches From The Defendant's Side Of The Criminal Law

Tuesday, October 16, 2007

Scare Them To Death Or Work Them To Death

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