Aggravating Factors

I took a horrible phone call this morning from a potential client, who found me through an old blog post. This woman was in a same sex relationship with another woman, and they had a 19 month old child together.

The other woman recently and unexpectedly passed away. She was only 26.

She was also, however, the biological mother of the child, and almost predictably, the biological grandmother is holding the kid hostage, planning to move her to FLORIDA! I asked the client whether there was a will, a cohab agreement, a family continuation plan, a civil union in another state — anything that would indicate the permanence and stability of a family. Only a medical power of attorney.

This sad, terrible story was entirely preventable. A couple thousand dollars spent on a lawyer when she was alive, and this could have been completely avoided. Now, it will be MANY thousands of dollars. Worse still, the emotional cost will be overwhelming.

So let me be clear. Same sex couples ABSOLUTELY MUST HAVE plans in place — at the VERY least an advance medical directive. Where there are kids involved, you need a will that spells out who should have custody. The best thing to do is for the non-biological parent to adopt.

I am so sorry for her. My heart is full of sadness.

I took a call from a potential client this morning that reminds me how little most people understand about the system or their rights. During a traffic stop, police asked permission to search his car, and the search resulted in a few long forgotten marijuana seeds. Hardly the crime of the century, but a crime with serious ramifications nonetheless.

The person’s mistake? The police asked for consent to search, and he said yes thinking he was clean.

The police ask for permission if (and ONLY if) they don’t have enough evidence to get a warrant. Police officers cannot search based on their hunches; or if a person fits a profile; or for the hell of it; or any of the hundred other reasons police have “in their gut” for wanting to search a car.

Unless you give permission! Then it doesn’t really matter what they believed. If a person consents, barring a literal gun to the head, the search is almost certainly going to be upheld. Now this person faces criminal charges, had his truck seized (no doubt so they get a warrant to tear it apart looking for more drugs), and is in a bit of hot water.

Oh, and because these were seeds, he can be charged with growing weed, which is a felony.

Hopefully, the police find nothing else, charge him with misdemeanors and we can work out a solution that pleases everyone. He wouldn’t be in this predicament if he simply said to the police “No, you may not search my car.”

It takes a special kind of craziness to devote one’s professional career to post-conviction death penalty litigation. The stakes are, literally, life and death. The wins are few and far between. By the time the case gets to this stage, the client has lost repeatedly. Post-conviction lawyers often tilt at windmills, trying to convince judges and prosecutors that after dozens of courtroom victories and many years — decades in some cases — they’ve been wrong.

Ken Rose with the Center for Death Penalty Litigation in Durham, North Carolina has made death cases his life’s work, and is the central figure in John Temple’s new book, The Last Lawyer. With a journalist’s nose for truth and a novelist’s ear for language, Temple tracks the fifteen-year fight to save Bo Jones [WARNING: SPOILERS] from the executioner’s needle. Along the way we are confronted with nearly every flaw in the American capital punishment system — incompetent defense attorneys; a trial prosecutor who doubted his own case but whose hands were tied by the system; a judge whose attitude toward  post-conviction motions ranged from indifferent to hostile; a pugnacious Assistant Attorney General determined to fight on toward death because she can; and a client, mentally challenged and delusional, who never quite seemed to understand what was happening, and who stood on the edge of the abyss — always in danger of unraveling the threads of his own case.

Throughout the book, Temple retains the journalist’s detachment — neither praising the lawyers of the CDPL nor condemning the lawyers for the State. That Ken Rose and his team emerge as heroes is tribute to the strength of their work and convictions. The lawyers of the CDPL take on incredibly unpopular causes for little money, and find the resolve to press on despite the long odds against them.

The Last Lawyer is a fast read that is both entertaining and inspirational, and serves to remind us in the criminal defense bar why we fight, and why we need to keep fighting. As Ken Rose’s mentor advised him early in his career, Represent your broke death row client like you were representing Coca-Cola. Considering how many defense attorneys half-heartedly fake their way through cases, it is a lesson I wish more of us had learned.

Yesterday, I wrote about how the Municipal Court of Philadelphia handles misdemeanors starting with the arrest and continuing up the arraignment status hearing. At the arraignment status, the defendant is given his or her trial date. Today, the series continues with the trial phase.

The Municipal Court has the jurisdiction to conduct trials, accept guilty pleas, and impose sentences on misdemeanors — any offense with a maximum punishment of five years or less. On your trial date, a few things can happen. If the defendant decides to accept the plea offer that was made by the District Attorney, then the judge will hear the guilty plea and impose sentence. Technically, the judge can reject the plea offer, but that almost never happens with misdemeanor cases. Typically, the judge just accepts the plea and imposes sentence in accordance with the agreement. If there is no plea offer and the defendant pleads guilty anyway, the judge has the power to impose any sentence he or she wants.

Very few people go to jail for these kinds of offenses. Those who do are usually repeat offenders. For the most common cases — Retail Theft, Drug Possession, or Disorderly Conduct — the court orders probation. Probation is a program that allows people who have been convicted of a crime to stay out of jail as long as he or she obeys some rules. The rules can be pretty basic — don’t do drugs, keep the appointments with your probation officer, and stay out of any more trouble. If a probationer disobeys these rules, he or she can be sent to jail.

There is one misdemeanor crime, however that has a mandatory jail sentence — Driving Under the Influence of alcohol (DUI). Mandatory, unfortunately, means exactly that — it is mandatory and the judge has no discretion at all. First offenders can avoid jail if they qualify for ARD, which I have written about before. However, people who been convicted of DUI before cannot get the benefit of ARD. They must either win at trial or go to jail — in some cases, the minimum jail term is one year!

Which leads to tomorrow’s post — how trials are conducted in the Municipal Court. Here’s something to ponder on that point: there is no jury.

If the case doesn’t plead, then there will be a trial, and that will be discussed tomorrow.

The criminal justice system in Pennsylvania is confusing. Complicating things is the fact that there are TWO completely different sets of rules and procedures — one for Philadelphia, and one for the rest of the state. Even then, each county court system has its own set of rules and procedures. It’s enough to leave even some attorneys confused about what is actually going on.

This post is the first in a series explaining how the system works in Pennsylvania, and we begin with misdemeanors in Philadelphia.

A misdemeanor is historically a relatively minor offense, and include any offense punishable by up to five years in prison. The most common misdemeanors include theft, DUI, simple assault, drug possession, and disorderly conduct.

The process begins, obviously, when someone calls the police to complain about a person’s behavior and an arrest is made. The police bring the person to the police station where he or she is processed (fingerprints, mug shot, warrant check, et cetera). Then the person is taken to a bail commissioner — a quasi-judge whose only function is to set bail. In 99% of misdemeanor cases, bail will be unsecured or release on recognizances (ROR). Unsecured bail or ROR bail require no money down, but release may have conditions attached, such as “no contact with the complainant” or “stay out of the Gallery mall.” If bail is unsecured, the person will be released. The whole bail process might take 8 – 12 hours before you are released.

Misdemeanor cases then go to the Municipal Court of Philadelphia. The Municipal Court has jurisdiction to conduct bench trials in misdemeanors, but only preliminary hearings in felony cases. The two kinds of cases are handled completely differently.

The first court date after the bail hearing is usually called arraignment status. Despite the name, this is neither your arraignment, nor a status conference. In fact, it is entirely likely that you will not see a judge at all. If you have an attorney, your lawyer will receive discovery from the district attorney. Discovery is, basically, a copy of all the evidence against the defendant. For example, suppose a person is charged with simple assault following a fight — typically the discovery in this kind of case includes the complainant’s statements to the police, possibly photos of the complainant’s injuries, the statements of other witnesses, and information about the defendant such as his or her criminal history, or whatever statements the defendant made to the police. By the way, a suspect should never talk to the police! Whatever you say will be used against you — even if you deny it!

At the arraignment status, the District Attorney will sometimes make a plea offer to your defense attorney. A plea offer is a proposal — the DA can agree to a particular sentence (like probation) or to drop some charges in exchange for a guilty plea. The defendant does not need to decide right then. If the defendant does not have an attorney, the DA may not make a plea offer — the rules of ethics do not permit prosecutors to negotiate with unrepresented defendants. This is yet another reason why you should never go to court without a lawyer — if you do not have an attorney, you can either plead guilty without any promises or go to trial. With a lawyer, you can have a promise from the DA to consider and either accept or reject.

A defendant with an attorney will be told when his or her next court date is, called the trial date and be allowed to leave. Defendants without a lawyer will have to wait to see the judge before being given a court date.

Tomorrow, I will write about what happens when a misdemeanor goes to trial before the Municipal Court. If you have been arrested for a misdemeanor in Philadelphia and would to talk to an attorney, call Charles Thomas at 877-397-3003.

I have seen it happen over and over again. Someone charged with what they think is a minor offense — Retail Theft (shoplifting), DUI, Disorderly Conduct, or Harassment to name a few — goes to court without an attorney. They are embarrassed and ashamed. These are the people who did something stupid and got caught, and so they want to make it easy on everyone and just plead guilty. The judge, sensing the humiliation and seeing that the person has learned his lesson, gives a light sentence — a fine, maybe some community service.

The person knows he or she did wrong and is relieved not to be going to jail. Years go by and the person has forgotten about his or her youthful indiscretion.

Until he or she gets turned down for a job, a mortgage, or a professional license because an old criminal conviction that resurfaced following a criminal background check. For example, forty-six states plus the District of Columbia require criminal background checks for health workers.

The fact of the matter is that although many people who find themselves hauled up on charges repeatedly and never seem to learn their lesson, many times more are people who make one mistake and learn from it. These are the people for whom pre-trial diversion is appropriate.

A pre-trial diversion is a program that moves the case off the court calendar for a period of time, usually a year. During that time the defendant may be on probation or doing community service. If they complete the program successfully, the charges are dismissed.

Dismissal means no conviction and a clean record. Usually, any trace of the offense can be wiped off the record and nothing will show in a criminal background check.

In Pennsylvania, pre-trial diversion is known as Accelerated Rehabilitative Disposition — ARD. Each county District Attorney sets the rules for the county, and each county is different. Neighboring counties, therefore, can have vastly different rules for the program. For example, in Montgomery County, PA, no drug offense is eligible for ARD, but next door in both Bucks County and Philadelphia, drug possession charges can be admitted to ARD (not drug dealing, however). Furthermore, each county has its own application procedures — Montgomery and Bucks use ARD application forms, while Philadelphia makes the admission decision during plea negotiations in most case, no form necessary.

While you don’t necessarily need an attorney to get into ARD, having a lawyer who knows the ins and outs of the system makes it a lot easier. After all, with each D.A. deciding the rules for each county, that means there are 67 different sets of rules out there. While the urge to admit your mistake and move on is strong (and admirable, I might add), doing so can have devastating consequences for years to come.

If you have been charged with an offense and would like to discuss your options, including ARD, call me, attorney Charles Thomas at 877-397-3003.