Clients, here’s how prosecutors view your case

Tallahassee criminal defense attorneyThis article will help clients understand what I deal with when working with prosecutors.

Stress and fear usually envelop anyone charged with having committed a crime.  The frantic search for hope in a dire situation often drives how someone new to the criminal system seeks answers and relief.  I certainly understand that, and offer these words to those folks – so they understand what we defense attorneys are working with (and, often, against).

First, understand that the prosecutor is an elected official, and his or her employees are representative of the office.  All decision are subject to public scrutiny.  All records are public.  In other words, politics is a part of the process.  Like it or not.  So prosecutors always have in mind whether there will be any negative repercussions about how they handle a case.  No one wants to get called to the boss’ office, nor see their name in the paper regarding a case.

Second, understand that the prosecutor is not in the business of dismissing charges.  To the contrary, the job is to prosecute allegations of crime.  Please do not ask me if your case “can just be dropped”, or if I can tell the prosecutor that you are a good person and this is your first arrest and see if he or she will just let it go.  It does not happen that way, sorry.  Your good history and character are a part of my presentation, but will not magically impress a prosecutor to simply ignore a police report with your name on it.

Please also understand that the prosecutor may not immediately know what has happened to you.  From the time you are arrested until the paperwork makes its way to the State Attorneys’ Office (SAO) could be days, even weeks.  While I jump on cases right away, it takes time for the prosecutor to get a file and get up to speed.

Next, understand that whatever I tell prosecutors about the case will be checked out.  Trust but verify, as it is said.  Most prosecutors will give credit to what another professional tells him or her (except one I know in Gadsden County, who told me he doesn’t believe anything that comes from a defense attorney – real nice).  But as they are bureaucrats and at-will employees of an elected official, they have to confirm things before decisions are made.

Prosecutors have many, many cases, and yours is probably not that important to them.  What that means is that I often have to make several attempts at contact to get an answer to my questions and to get you information about resolving your case (check this article I wrote years ago, admonishing prosecutors to return phone calls).   You must be patient – I keep a running list of which prosecutors I am currently waiting to hear from so I can follow up.  

Finally, please undestrand that resolving a criminal case necessarily involves a penance . . . a punishment.  It is not intended to be comfortable nor convenient for a defendant.  Prosecutors generally do not care that you have to take time off from work, or attend meetings or do community service hours at night, or that you have to pay fines and court costs.  So demanding that I ask a prosecutor to amend a sentence because its cramping your style is senseless.

So, all that to say that negotiating with a prosecutor is a very difficult thing to do.  The process is not the traditional postitionally-based negotiation, in that most prosecutors do not take the position that they have something to lose.  That’s a whole different blog post, actually!  As a Tallahassee criminal defense attorney, I work to present creative resolutions in a professionally manner.  If you are charged with a crime in Leon County, we will work past these issues and do our best to “get to yes” as we have for many other clients over the years.

The longest day of your life: deciding whether to enter a plea

Take a look at this article:  Man gets 40 years in jail after rejecting plea deal that would have freed him immediately.

Look at this man… Look at his eyes.  He could have pled to time-served and gone home, “hence without day” as they say.  Instead, he went to trial…

…and was convicted…

… and got 40 years.  In prison. The pen. The big house.  That’s a life sentence, folks.

When you enter a plea, you’re asking for mercy… If you go to trial, you may be asking for justice.  At least, that’s what an old trial judge, J. Rogers Padgett of Tampa, used to say.  That guy is a wealth of courtroom wisdom.

Making the decision as to how to resolve a case is hard.  No one wants go to jail or prison.  Well, most normal people don’t – some would rather do that than serve probation, for various reasons.  How does one ever decide to voluntarily agree to go to prison?

My suggestions to clients are:

  1. Know what the worst-case scenario is (what’s the maximum sentence possible?).
  2. Know what your judge does in cases like yours.  If everyone similarly situated to you gets ____, then more than likely you’ll get that, too.
  3. Look objectively at your case. If you did not commit the crime, or the government can’t prove it, absolutely consider going to trial with a great trial lawyer.  If you have some liability, be realistic about it and think about how to lessen the impact of a sentence.  Remember, there are lots of people in prison on principle – the ones that relied on a false sense of something or other while not being real about their situation.  And finally….
  4. Think about this:  if you reject the plea, and get a harsher sentence – what would the longest day of your life be?  Upon going to jail or prison, what would the longest day of your life be while incarcerated??

Call for a consultation, come in and talk, and if you haven’t figured it out, I’ll tell you.  No one ever guesses correctly, and are surprised when I tell them.  Trust me, it will make a difference in your plea-vs-trial decision making.

Look at the man in the photo…look at his eyes. He has figured out the answer to my question.

Onward justice!

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You never know how your private personal information is being (mis)used

A TBO (click the photo for a link) article that shines a light on what those of us in the system already knew goes on.  Sometimes, those with access will pull your information for non-official reasons. Maybe just out of curiosity, but sometimes out of spite. It’s a scary thought!

Misuse of the DAVID (Florida driver database) is actionable – meaning the misuser can be sued. You can request a copy of your driving history, which will show what user accessed your information and when.

I’ll be ordering mine tomorrow. If you find that your driver information has been abused, contact us.  850-222-4529.

Calmly comply and clam up: what to do when confronted by police

Everyone has the right to remain silent. What many lack is the ability to remain silent.

These are the do’s and dont’s of dealing with an encounter with law enforcement. Follow them and you’ll survive the encounter, and position yourself to fight a case later.

The rules: calmly comply and clam up.

  1. Remain calm.
  2. Quickly comply with all commands.
  3. Be polite but do not answer any questions other than to identify yourself – clam up.

A police-citizen encounter is not the time to make a point, argue, protest, complain, question, or try to show how informed about the law you are.  Get over feelings of anger, impatience, feeling “dissed” or disrespected. Stay calm.

The officer(s) are in control. Not you. Accept that fact and you’ll make it through the incident. Comply with all commands.

As discussed below, silence is golden. Identify yourself, but refuse to answer any questions. Clam up and stay clammed up.  Ask for a lawyer.

Don’ts

  • Don’t run.
  • Don’t make sudden movements.
  • Don’t try to talk you way out of the situation.
  • Don’t talk – just listen.
  • Don’t consent to any search.
  • Don’t refuse to sign a traffic citation or notice to appear in court (signing doesn’t admit guilt).
  • Don’t forget to make eye contact with the officer.
  • Don’t be confrontational.
  • Don’t ever touch a law enforcement officer.

Why?  These are difficult times.  Everyone is on edge.  Officers have a job to do – one that puts their personal safety at great risk.  So understandably they are on red alert.  Be cool and everyone makes it out of the confrontation in one piece.

Every encounter starts on high alert

Cops need to control the situation. Let them. 

If you feel that you were physically abused, or in any way mistreated, let your attorney know immediately.  You may also want to file a written complaint against the officer later. But do not touch, strike, or attack the officer.  Defend yourself only if you must – but understand that law enforcement officers are trained in hand-to-hand combat, have weapons, and have reinforcements.

Legal issues arising from the encounter: the importance of silence

The street is not the courtroom. The street is not the place to argue over whether you were legally detained. It’s not the time or place to dispute the legality of any search.

Just keep quiet.  Do not consent to any searches.  Do not make comments.

If your rights are read to you, don’t make any statements. Ask for a lawyer – don’t be wishy-washy, be firm: “I am not answering any questions and want to speak to a lawyer.”

Resist the “you don’t need a lawyer, we can work this out if you’ll just talk to us” routine.  Don’t say anything.

If you invoke your rights at first, don’t start talking later. Don’t think that invoking your right to remain silent will somehow cover what you say afterward. To the contrary – keep talking and you’ve waived your right to remain silent.  Anything you say can and will be used against you.

If you stay silent, and you end up catching a charge, your attorney will be in a far better position to fight the case. You’re not going to talk yourself out of an arrest, but the attempt to do so can seal your fate later.  Don’t talk yourself into a conviction.

Conclusion

In short, calmly comply and clam up.  Call me afterward.  850-222-4529.

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Ms. Richardson, we need a ruling on your experience, please

When will Monique Richardson clarify her credentials? When will the accuracy about her actual legal experience start to matter to her and her campaign?

Apparently not soon. While Richardson is very active on social media, she hasn’t touched this issue at all.  Since my Facebook question to her a week ago, and my bLAWgger post on Saturday, no response. I know she knows about both. I guess it doesn’t matter to her that there are questions to be answered.

First, take a look at this: http://www.miamiherald.com/news/local/community/miami-dade/article97462927.html

Compare the facts of this article about a Miami campaign lawsuit to the facts in my bLAWg post of last Saturday.  Judicial candidate says she was a prosecutor when in fact she was not:

Del Rey has also billed herself as a former prosecutor, but records show she hadn’t been sworn in as a lawyer yet while working briefly as “legal trainee” at the Miami-Dade state attorney’s office in 2005. The office lists her as having been terminated, although she insists she sent in a timely resignation letter — which cited a grueling work schedule as her reason for leaving.

I’ve checked her website and some social media posts. As of this morning (Wedneaday, August 24), Richardson still has not clarified that “during her 15-year career as an attorney” she did NOT work at the State Attorney’s Office. She worked there BEFORE her legal career, as an intern.

There is a difference between being a sworn assistant state attorney (prosecutor) and being an intern.  One is part of a legal career, while the other is part of legal training.  Interns are not yet members of the Bar.  Interns must be at all times supervised.  Interns usually only work in the county court misdemeanor division, handling a limited amount of select DUI and misdemeanor cases.  In other words, it’s a significant difference that matters.  Especially when you are running for judge and want to tout that valuable “former prosecutor” experience.

(Again, I strongly believe internships are a valuable part of legal education.)

Her supporters have told me “she never said she was a prosecutor!”  No, not directly. But she sure as heck has stuff out there that could lead people assume she was one.  It’s no different that someone saying “I worked at the White House” – which could be interpreted as having been an important aide to the president…when in acutality the person worked in the mail room. Or “I was with the Atlanta Braves” – you might think one was a player when one was really a trainer or front-office executive. 

Richardson has also not clarified how many times she took the Bar exam, or details of her self-proclaimed “significant” trial experience.

Accuracy matters.  Transparency matters. Not making improper insinuations – it matters. Not forcing people to assume -it matters. Not asking voters to guess – it matters.  Richardson cannot ignore this issue.

So, the voters of Leon County need a ruling from the judicial candidate, in the form of her campaign website, on social media, or a response to me:

  1. Were you an intern or an assistant state attorney?
  2. How many times did you take the Florida bar exam?
  3. How many jury trials have you been involved in, and what was your part (did it all, was 1st chair, was 2d chair to another attorney, etc) and what parts of the trials did you personally do (opening, closing, etc)?

And so I am accurate and transparent: I support and have donated to incumbent Judge J. Layne Smith, Ms. Richardson’s opponent.

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