Is That Plea Deal Really a Deal?

 

Prison is Hell for the guilty. It is difficult to envision what it must be like for the innocent. How and why do innocent people confess or plead guilty to crimes that they did not commit? In most instances, a defendant will be required to make a choice between a plea of guilty or not guilty. When pleading guilty a defendant is required to "allocute" before the judge -- admit the crime and furnish sufficient details to satisfy the court that he is indeed guilty. (One cannot help wonder how and by whom an innocent defendant is furnished with enough information about the crime to satisfy the court of his guilt.)

The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description.  An innocent person should NEVER plead guilty.

The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant's guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive to PROTECT the innocent -- even those who profess to be guilty.

If you believe you are innocent, hiring the right attorney can make all the difference.  Seek out an attorney who has trial experience and is not afraid of telling your story to a jury.  Your freedom may depend on this choice.

 

Miranda Warning

Chief Justice Earl Warren wrote the Miranda warning, which criminal suspects have been read since the U.S. Supreme Court mandated it in 1966. Above: Justice Warren led the Supreme Court from 1953 to 1969.

If you have ever watched a crime drama on television, you have probably seen the officer advise the suspect of his or her Miranda Rights. This warning is read after an arrest has been made and before police questioning is conducted.

The Miranda Warning says:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak with me?"

What does this mean?

·       You have the right to remain silent.

·       If you do say anything, what you say can be used against you in a court of law.

·       You have the right to consult with a lawyer and have that lawyer present during any questioning.

·       If you cannot afford a lawyer, one will be appointed for you if you so desire.

·       If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

Many people believe that if they are arrested and not "read their rights," they can escape punishment. Not true. Generally, if the police fail to read a suspect his or her Miranda rights, the prosecutor can't use anything the suspect says as evidence against the suspect at trial.  There are some exceptions to this protection, which is why your best bet is to remain SILENT when questioned by police.

Consequences of Failure to Provide Miranda Warning:

Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.

Example:

If a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence -- unless the police can prove that they would have found the weapon without the suspect's statements.

Bottom Line:  Even though you have some protections under Miranda:  You should never speak to the police without an attorney present!!!

Bail- How Do I Get Out of Jail If I'm Arrested

Handcuffed, put in the back of a police car, and now sitting behind bars not sure what to do next.  There is one thing going through your head – “How do I get out?”  In general, getting out of jail is accomplished by posting "bail" or “bond.”  Bail is generally cash or a piece of property that has a cash value that you give to the Court in return for your promise to show up when ordered. Generally, if you show up to Court when you are supposed to after being let out of jail, the Court will return your bail. However, if you do not show up, the Court will keep your bail and most likely issue an arrest warrant for you, meaning you'll probably end up back in jail.

Before we talk about the process; here are some tips:

·        Never cause a problem for the police or booking staff involved with your arrest or booking. Why do we say this…because you will need their help with using the phone.  Even if you believe you are innocent…remain calm and silent and politely ask for an attorney and a phone.

·        Find a phone…quick! You should have a list of people in your head to call. Bail is not cheap! SO make sure you have credit worthiness with the people you are attempting to call; the person bailing you out will be promising to pay your entire bail if you fail to appear.

·        Make sure to understand the bail process—please read below about the bail process.

·        If you cannot find someone to post your bail…you might be stuck…you might not. Within 72 hours, you will be arraigned.  The arraigning magistrate will read you the crimes you are being charged with and also set your bail.  The magistrate will look at your risk of flight and the danger that you may pose to the community if you are released and weigh these two in light of the charges when determining the proper bail amount.  Are you local? It’s easier to show up for court if you are a local. Do you have a history of failing to appear for court? This will ensure a high or no bail. Did you get charged with a serious offense? They have higher penalties and the person poses a greater risk of flight because they might flee to avoid jail. Are you employed? People without jobs are generally less reliable and do not have connections to the community, thus making it easy to pick up and leave. Do you have family obligations? The courts don’t want you to lose your job when you’ve got a family to feed.

 

The Process of Setting Bail

Let’s talk about the Eighth Amendment of the United States Constitution … no person can have an excessive bail amount set against him or her. This has been held to mean that bail cannot be used as a way for the government to raise money for itself or punish a person for being arrested. The Eight Amendment is there to ensure that bail is not used for a purpose other than to guarantee that an arrested person comes back to court at the appointed time. Despite the theory behind the Eighth Amendment, judges often use excessively high bail amounts to prohibit an arrested individual from getting out of jail. This type of excessive bail is often used for people that have been arrested on suspicion of dealing drugs, murder or other crimes where flight is a real possibility.  If a judge sets an excessive bail amount, your attorney can challenge it at a later date.  Stay calm and let your attorney handle this task.

Posting Bail

When you "post bail," you are paying the amount at which your bail was set. This can generally be done in a few ways, including: Paying by cash or check in the amount of your bail; Signing over ownership rights to property that has a cash value that is equal to or exceeds the amount of your bail; Giving a bond (a promise to pay if you do not appear) in the full amount of your bail; or Signing a statement that says you will appear in court at the required time, generally called "being released on your own recognizance."

 Bail Bond

Many people are forced to purchase a bail bond in order to get released from jail. A bond is much like a check that you give to a friend, asking him or her not to cash it until you say it's okay to do so. Generally, the purchase price of the bond is about 10% of the value. Therefore, if your bail is set at $5000, you can expect to pay about $500 in order to purchase a bail bond. If you appear at court and proceed with all requirements thereof, you will generally get the full amount of your bail returned back to you (minus some small, administrative fees from the court). However, if you buy a bail bond, you are already out 10% of your bail amount (this is generally not refundable), and you will also probably have to give the bail bondsman some collateral in order to get the bond (such as an interest in your car or home). If you fail to appear in court at a required time, the bondsman can cash in on the collateral you gave, meaning that he or she could sell your property and take the money from the sale.

Getting Released On Your Own Recognizance

As mentioned above, if you have the option of being released on your own recognizance, you should jump at this opportunity.  If you are denied this request for a personal bond, you can always ask about getting a lower bail amount. There are certain factors that can lead a judge to release you, many of them having to do with your ties to the community in which you were arrested. Factors that could support your request to be release on your own recognizance include: having close family members living in the community; being raised in or living in the community for a number of years; having a job in the community; having no criminal history, or a criminal history that only includes small crimes and misdemeanors; and having a good track record of showing up to court when required in the past.

When and How to Invoke Your Right to Silence

 

 

You have the right to remain silent…USE IT!

 

You decided to leave your house for a late night drive, the next thing you know, you look in the rearview mirror and you see flashing police lights. The officer walks up to you're vehicle, takes one look and tells you to step out of the car, your placed in handcuffs. The officer puts you into the back of the car and drives you to the police station. The officer tells you that you match the description of someone who robbed the house in the area of which you are driving. A detective comes up and takes you to a back room of a police station, puts a recorder on the table and says “Let’s hear your side of the story.” 

What do you do now?

Your freedom, your reputation, and your life depend on what you say in this moment.

 The next words out of your mouth should be “I wish to speak to my attorney.”

The right to silence is designed to protect the innocent. The police can and will stretch the truth and make promises to you that are not true.  For instance, they say you can get a lower bail amount if you co-operate. They may say your best friend is in the next room singing like a canary. They may even threaten your life. It is their job to get as much information out of you as possible.  Don’t give in to their pressure and please exercise your right to remain silent!

You should always exercise your right to silence until you have obtained proper legal advice, even if you believe you are guilty and especially if you believe you are not guilty.