Taken by Joe Bodiford, August 2017
Copyright 2017, all rights reserved.
Taken by Joe Bodiford, August 2017
Copyright 2017, all rights reserved.
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.
Thank you, Tallahassee Bar for the kind recognition in the September 2016 Bar Bulletin.
I was honored to have been asked to present a CLE seminar on cross examination in August. It’s a pleasure to be a part of such a wonderful group of attorneys and staff!
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:
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.
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.
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.
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.
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.
In short, calmly comply and clam up. Call me afterward. 850-222-4529.
Trial Guides for Attorneys
Florida Bar and National Board of Trial Advocacy Certified Criminal Trial Lawyer
Top news, as it breaks!
Board Certified Criminal Trial Lawyer Joe Bodiford
Rules, Statutes, and Cases on Florida Criminal Procedure by Joe Bodiford, J.D., LL.M.