This is a shining example of the Tulsa District Attorney’s Office and Criminal Defense Team at Boeheim Freeman Law working together to help the community and in this case a single individual who needs help, not incarceration.
Video Conferencing in the Courtroom
The Oklahoma Legislature has recently taken a big step, with a new statute that allows videoconferencing technology to be used in the Oklahoma District Courts for hearings up to, during, and after trial in both civil and criminal cases. Prior to this, it was unlawful for videoconferencing to be used in the District Courts of Oklahoma. There are several minimum requirements; here are a few:
Everyone who is directly involved, i.e. the attorneys, witnesses, judge, defendant, court reporter, and interpreter, can see and be seen and hear and be heard.
Participants shall be able to see, hear, and communicate with each other simultaneously;
Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibit presented;
Video and sound quality shall be adequate to allow participants to observe demeanor and nonverbal communications and to clearly hear what is taking place to the same extent as if they were present in the courtroom;
The location from which the trial judge is presiding shall be accessible to the public to the same extent as the proceeding would be if not conducted by videoconference;
When feasible, a party and the party's attorney should be allowed to communicate privately off the record by use of a private communication facility (cellphone, landline, facsimile, Skype, etc.) during the proceeding, or during a break. The court is not required to provide a private communication facility if none is available.
There are also some exceptions; here they are:
Situations where its use might create undue prejudice;
When a person is available, but simply does not wish to be in the courtroom;
Convenience vs the Value of the Testimony;
Whether its use would interfere with the full ability to cross-examine a witness;
In a circumstance where the gravity of being in the actual courtroom will impress upon the witness the importance of telling the truth;
Whether a physical liberty or other fundamental interest is at stake in the proceeding;
Whether the judge is comfortable with his or her ability to effectively control what is happening at the remote location;
Whether a distortion in the technology causes those present in the courtroom to reflect negatively upon the person at the remote location;
Whether use of the videoconferencing technology will diminish the integrity and fairness of a proceeding in a particular instance;
Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom;
The necessity of waivers and stipulations between the parties regarding the use of videoconferencing during a proceeding;
And anything else that the judge might think is relevant.
The party that wishes to use videoconferencing technology for the purpose of witness testimony must submit a motion stating their intent at least thirty (30) days prior to the proceeding. Any party that objects to this must submit their objection in writing within ten (10) days of the filing of the original notice.
So, what are the advantages of using this new technology in the courtroom? The cost benefit is particularly relevant to those needing an interpreter or court reporter where none is available to be physically present, and the time, effort, and finances that would be required to get someone to be physically present would be restrictive. This is particularly true of poorly served and rural areas that lack the same resources as larger metropolitan areas.
However, there is no rule stating that courts must employ this new technology, and since the initial cost to install the equipment and training would presumably be substantial, it is likely that the areas that are poorly served now, will not be able to afford the equipment that is necessary to meet the requirements set out in the statute. Furthermore, the statute does not specify who is supposed to pay for the installation and maintenance of the equipment. Is it the County Treasury? Is it the State? Is it the Court Fund?
So, when would the videoconferencing technology be most valuable? Obviously, when used for expert witness testimony. The ability to bring in the testimony of a nationally, or even internationally, renowned expert without having to pay travel costs would be an enormous cost savings for either side of a litigation. As mentioned above, the ability to bring in an interpreter for unique and specific languages and dialects, would also provide witnesses and defendants the ability to understand and be understood. This is not just important, but a Constitutional right.
What about the risks? Clearly, it is difficult to tell when someone is lying. Most people find it difficult to tell when they are face to face with someone. Seeing and hearing them over a video screen will only make that more difficult. Considering that a big part of a jury’s job is to determine the credibility and reliability of each witness, this knew technology leap could get in the way of justice. The level of personal separation videoconferencing technology provides has the potential to reduce the impact and gravity of the proceedings, creating an insulation or barrier to the stress and impact of a tough and vigorous cross-examination, harming the truth-finding process of witness confrontation. Furthermore, there are no security measures in place that would ensure that the remote location remains pristine and free from influence or bias that could taint witness testimony. It is feasible that a person could stand out of view of the camera and coaches a witness without the court’s knowledge.
Technology has invaded every part of our lives. It has increased the quantity of communication, but not necessarily the quality. There are efficiencies that would be created for the court system, but for each benefit there comes a possible risk. So, what stands in the way of this technology leap? The greatest barrier to this technological leap may be the fact that it requires financial and procedural investment, and the legal world tends to resist investment and resists procedural change even more.
Author: Lauren N. Stanley
Can I get a DUI even if I have a Medical Marijuana Card?
In Oklahoma, the short answer is yes. According to current Oklahoma Statutes, the ability to legally use a controlled substance for medical purposes does not mean that it is legal to operate a motor vehicle while under its influence (47 O.S. 11-902 (B)). This applies to any substance that might cause impairment, whether it is a prescription or not. If a substance impairs cognitive function and normal reflexes it is neither safe nor legal to drive. The legality of the substance is irrelevant.
There are many prescriptions that have side effects that include drowsiness or impaired reflexes and it will say so on the bottle when you receive it. “CAUTION!!! This medication may cause drowsiness! Do not drive or operate heavy machinery until you know how it affects you!” This applies to everything from heavy duty prescription narcotics to over-the-counter Benadryl.
According to the law, Marijuana is no exception. This exemplifies a situation in which older statutes have not been updated to reflect new laws. Marijuana is still listed as a Schedule I substance, even though Schedule I substances are considered to be those substances that lack a medical purpose (63 O.S. 2-203 & 63 O.S. 2-204 (C)(12)). The DUI Statute states that having anyamount of a Schedule I drug in your system is a violation (47 O.S. 11-902 (A)(3)). As such, testing positive is sufficient cause for prosecution, and the State does not have to prove that you were impaired, merely that it was in your system.
This is problematic for those who use legal medical Marijuana due to the fact that it lingers in your body long after its mind-altering effects have worn off. It can take up to thirty (30) days for your body to completely metabolize it.
This is a burgeoning issue in law and the administrative and legislative branches of the government are still trying to manage the legalization of Marijuana for medical purposes. As an individual, be sure to be responsible and take precautions to ensure your protection from a system that is still working out some of the kinks.
If you get stopped, politely decline from making any statements without your attorney present. Do not consent to taking the field sobriety test. Do not consent to a search of your vehicle. If you get arrested for a DUI call an experienced, aggressive, and compassionate team of attorneys that can handle the criminal and DPS issues for you. Why hire an attorney when you can hire a team?
Written by Lauren Stanley
Rules of Evidence
The rules of evidence are very specific and have been hammered out at the Federal and State levels through years of experience in watching the results of criminal and civil cases. The intent of these rules are to provide for a fair and just outcome. One of the Oklahoma rules, Title 12 O.S. § 2404(A)(1), is to prevent what might be perceived by a jury as a bad character trait, or a previous crime, from being used by the prosecution to prejudice the jury’s opinion of the defendant, instead of letting the facts speak for themselves. There is an exception built right into this rule (Title 12 O.S. § 2404(B)), which says it may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This is a well thought out and well written statute.
Weakening the Rules of Evidence
In an attempt to once again weaken the rules of evidence and to fix something that is not broken, the Oklahoma State legislature has proposed a legislative bill (HOUSE BILL 1093) that will bypass the above rule in cases of domestic abuse. At first blush, you might say that maybe domestic abuse cases may need some special consideration. However, this poses a very real to the rights of the accused. This increases the risk of sending an innocent person to prison based on perception instead of facts. §2404(B), along with several other exceptions, provide the prosecution ample opportunity to enter this type of evidence to show a pattern of behavior. Furthermore, if a jury was to find a defendant guilty of the crime, then the defendant would be looking at a much stiffer punishment for having previously committed the crime of domestic abuse. This proposed new law does not offer greater opportunity for the truth to come out, but instead plays into the mudslinging insanity that has irreparably damaged innocent lives of late.
Especially Faulty Language in House Bill 1093
Beside the fact that this law is redundant and more effectively handled by the current statutes, it adds dangerous language that opens the door to broad interpretation and possible misuse.
Here is what I mean, look at the words highlighted below from § D of the proposed bill:
D. For purposes of this rule, "domestic violence or abuse" means any incident of controlling, coercive or threatening behavior, violence or other act of abuse against a person in a relationship as specified in subsection C of Section 644 of Title 21 of the Oklahoma Statutes. The violence or abuse may be psychological, physical, sexual, economic or emotional.
The current statutes defining Domestic Assault and Battery couldn’t be clearer. Look for yourself, I have attached them to the bottom of this post.. This bills new definition of domestic violence or abuse would bring in an unrealistic number of normal domestic issues into the fold of what would be considered as domestic abuse. Remember that this applies to the following people: spouse, significant other, former person you lived with, or blood relative. You can no longer threaten those people in any way. No limiting sweets, sex, or spending money without a risk of that relationship being brought before a jury to be judged. You can’t even threaten such limitations.
Who among us is flawless? Who among us has had perfect relationships? When accused, should the prosecutor be able to spread before a jury all of your dirty laundry, or only that which is pertinent to the case at hand? This bill is redundant and flows from the same river that drowns our airwaves with fear mongering, innuendo, and unsubstantiated claims. Haven’t we learned from history? We have more than enough laws and rules of evidence (see below). Let’s focus our legislative energy on improving education and broadening our economic base for a stronger Oklahoma.
Any person who commits any assault and battery against a current or former spouse, a present spouse of a former spouse, a former spouse of a present spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is or was in a dating relationship as defined by Section 60.1 of Title 22 of the Oklahoma Statutes, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, or a person living in the same household as the defendant shall be guilty of domestic abuse.
An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.
A battery is any willful and unlawful use of force or violence upon the person of another.
Supreme Court decision provides defendants the ability to challenge outlandish forfeitures and overly burdensome fines.
The Supreme Court has unanimously decided the Eighth Amendment applies to the States and not just Federal cases. This will prohibit excessive fines and fees especially when State agencies seek to seize property or other assets from individuals charged or convicted of a crime.
This decision supports what critics of civil asset forfeiture have been saying for a long time. It also opens another avenue to legally challenge the widely abused practice by which states and local governments can seize cash, cars, homes, and guns that are suspected of being used to commit a crime.
The case before the Supreme Court, Timbs v. Indiana involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pled guilty and was sentenced to one year of house arrest and five years of probation. The Court suggests that it became excessive when the State of Indiana seized his Land Rover, which was purchased with his father's life insurance payout, not with the proceeds of drug sales. The State claimed that they could seize the vehicle because it had been used to commit a crime.
Timbs’ attorneys argued that taking the vehicle was nothing more than an additional and excessive fine. The Indiana Supreme Court rejected that argument, because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.
The Supreme Court overturned the Indiana Supreme Court in an opinion wrote by Justice Ginsberg:
"For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history. . .Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, or can become sources of revenue disconnected from the criminal justice system.”
Local government uses fines and fees as a means to raise revenue, and that creates a perverse conflict of interest between the bureaucracy and residents of the community. The Supreme Court’s decision makes clear that the Eighth Amendment applies to the states. This will make it far easier to challenge unreasonable fines and fees, as well as, asset forfeiture
This case points out how ridiculous overly burdensome fines and civil asset forfeiture can be when abused. Many times the fines and the confiscation of property only hurts the families left behind when a defendant gets convicted and goes to prison. This inevitably propagates a cycle of crime, when a family is left with very few options and bills to pay.
The Supreme Court and Justice Ginsberg have spoken: Excessive fines are unconstitutional, and civil forfeiture is an additional fine to those who are convicted. If you have been served with a civil forfeiture in connection with a criminal case, please give us a call at 918-884-7791 and let us help you fight for your constitutional rights.
Oklahoma Medical Marijuana Law
Marijuana Licensees with Minor Children:
No medical marijuana license holder may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this law, unless the person's behavior creates an unreasonable danger to the safety of the minor. 63 O.S. § 425A(D) (OSCN 2019), Medical Marijuana
Marijuana Licensees - Protect Yourself Against Claims of Neglect
Parents who are licensed marijuana users are expected to act with the same precautions as those who are prescribed other controlled substances. As with all medications, keep medical marijuana our of plain sight, out of the reach of children, and in properly labeled containers; and take medical marijuana in proper doses and during times when is does not inhibit your ability to parent. Never drive with children after medicating. In a home where there are duel patients who are parenting, alternate intake of the medication to ensure that one parent is alert and capable of taking care of an emergencies that may arise.
Marijuana Licensees - What to do DHS or Family Court Gets Involved
Sensible use and safe storage of prescribed marijuana when children are in the home of the licensee affords protections to the licensee from DHS or family court interference with child custody. If your licensed marijuana usage becomes an issue in your child custody or DHS case, call the family law attorneys at Boeheim Freeman Law. 918-884-7791
Jurors find man not guilty of murder in 2017 fatal shooting in Bixby
By Harrison Grimwood Tulsa World21 hrs ago
A Bixby man was found not guilty of first-degree murder Thursday evening.
Earnest Liggins, 39, acknowledged that he fatally shot Kevin Phelps, also of Bixby. Brian Boeheim, Liggins' attorney, said the shooting was in self-defense.
The shooting occurred during an altercation between the two men developed in front of Phelps' residence, located near 126th Street and 85th East Place in Bixby, in June 2017.
"Mr. Liggins is very remorseful that this ever occurred," Boeheim said. "He considered Mr. Phelps a friend for most the time they knew each other."
A juror told prosecutors they considered the shooting self-defense, Assistant District Attorney Kevin Keller said after the trial.
The jury did find Liggins guilty of unlawfully carrying a firearm.
Keller said Liggins was discharged from the Tulsa County jail, where he has been in custody since the shooting, after he was credited for time served for his conviction on the lesser charge.
Neighbors told police they heard an argument between Liggins and Phelps before the shooting, which occurred shortly before 10 p.m. June 19. Phelps was pronounced dead at the scene.
Liggins had gone to Phelps' home to repay him some money, Boeheim said, and Phelps reportedly became irate and fought with Liggins. Boeheim said Liggins tried to tell him he just wanted to go to his car and leave.
Phelps reportedly was trained in martial arts and intoxicated, and Boeheim said his client feared for his life.
"He (Liggins) and his family are excited he'll finally get to go home," Boeheim said. "It's horrible that a man lost his life. At the end of the day, it was self-defense."
The DA's office failed to prosecute the father, and laid all the blame on the mother. The lead investigator admitted that the investigation was influenced by the initial statements made by the parents, but the father then told the jury that he lied not once, not twice, but three times to police. Is this justice?
After a 5-day Murder Trial, Brian Boeheim and Ciera Freeman were able to convince the jury that David Ellis did not murder Michael Shane Floyd with malice aforethought (premeditated), but instead the stab wound that ended Mr. Floyd's life was Manslaughter Due to Anger or Fear.
Although Mr. Ellis was sentenced to Life in prison, due to his prior criminal convictions, Mr. Ellis was happy that his version of the events was heard and that the jury refused to believe the lies that some witnesses tried to tell from the witness stand.
After the verdict, Mr. Ellis thanked both Mr. Boeheim and Ms. Freeman for their aggressive and thorough cross-examination of the State's witnesses in order to catch them in a series of fabrications and exaggerations.
Hard fought trial results in a Not Guilty Verdict
Brian Boeheim and Ciera Freeman successfully defend this young man who was facing decades in prison.
A Tulsa man is making plans for the future after a jury found him not guilty of rape and sexual assault.
What is Deferred Prosecution?
Beginning in June of 2017, the Tulsa County DA began offering Deferred Prosecutions. This is a contractual arrangement to not file charges on you even though you have been arrested. Simply put, if you will sign up for voluntary supervision, pay all of your fines and fees upfront, then they won’t even file charges against you. Sounds like a dream come true, right? Maybe not, keep reading.
Who is eligible?
This contractual arrangement is only available to people who have a clean record and no criminal history. As you have read above, all the fines and fees must be paid in advance, so this will seriously limit the people that can take advantage of this program.
How much will it cost?
The supervision fee will be $240. On top of that, you will have a fee of between $200 and $400 for each charge you were booked in on. So, as an example, if you were arrested on Possession of Marijuana, No Driver’s License, and No Insurance; you would be looking at a total of $1065.00 total up front before you can take advantage of this program.
What does the supervision look like?
Tulsa COURTS will supervise you, which is the same group that supervises people for Drug Court. It will be for a minimum of 6 months, but could be 2 years. You may have to do a Drug and Alcohol Assessment, Random Urinalysis Drug Testing, Restitution, Mental Health Evaluation, Community Service Hours, Stay Away Orders, GPS, or SCRAM Alcohol Monitoring. Oh yeah, that is all at your cost. Also, they can also come visit your home or place of employment.
What happens if I fail?
Even if you only have supervision for 6 months, if you run into trouble anytime within 2 years, you will not only have to deal with those charges, but the DA will file these old charges on you too. They can also file the charges on you for any form of non-compliance.
Seems like a decent deal, what is the catch?
Your biggest concern is that you are waiving several of your Constitutional Rights! First, you will have to sign an agreement that says that the State of Oklahoma has sufficient evidence to achieve a conviction. Next you are waiving your rights to speedy prosecution and a speedy trial. Also, you will be waiving the Statute of Limitations. Finally, you will be waiving your rights to counsel.
Is there anything else I should know?
Yes. You are also waiving your ability to challenge the lawfulness of your arrest. You are also waiving your ability to challenge the search of your vehicle, home or person.
What should I do?
You have a right not to be singled out. You have a right not to be harassed because of who you are or what neighborhood you come from. You also have a right to your privacy. Hire a qualified attorney that is not afraid to fight for your rights. If the DA was going to give you the Deferred Prosecution then they most likely will still offer you Deferred Probation, which is practically the same thing without waiving all of your rights.
Why is the DA offering this?
It is about the money. This method of handling cases will shift money from the Court Fund to the DA Fund. This isn’t about helping you, but instead a way of funding the DA’s Office.
If you are accused of robbery, there could be very significant penalties at stake. While most theft crimes are considered property crimes, robbery is considered a violent crime against the person. Depending on the type of robbery with which you are charged, you could be facing up to life in prison.
What is Robbery?
Someone who discovers their property missing may say they have been “robbed.” This is actually larceny or burglary. While larceny and burglary generally depend upon stealth, robbery is about the force or fear used to commit the crime. Robbery is defined by Oklahoma law as “a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (21 O.S. § 791). The state divides robbery into several classifications, including first degree, second degree, conjoint, and armed robbery.
First Degree Robbery
Defined in 21 O.S. § 797, first degree robbery occurs under one or more of four specific circumstances:
1. inflicts serious bodily injury upon the person;
2. threatens a person with immediate serious bodily injury;
3. intentionally puts a person in fear of immediate serious bodily injury; or
4. commits or threatens to commit a felony upon the person.
First degree robbery is a felony punishable by a minimum of 10 years in prison. It is also an “85 percent crime,” under O.S. 21 § 13.1, a person convicted of this crime must to serve a minimum of 85 percent of the sentence before the possibility of parole. With that said, there is case law that brings the minimum down to 5 years, but judicial notice should be invoked.
Second Degree Robbery
Second degree robbery does not carry the same requirement that the force results in serious bodily injury or that the fear is the intentional threat of serious bodily injury. Second degree robbery is a lesser offense than first degree robbery, and it is not an “85 percent crime”. Robbery in the second degree brings a possible sentence of up to 10 years in prison.
Conjoint robbery, or robbery committed by two or more people conspiring or acting together to accomplish the robbery is a serious felony where each person involved faces 5 to 50 years in prison. Like first degree robbery, conjoint robbery is an “85 percent crime”.
Robbery or attempted robbery with a dangerous weapon or imitation firearm (21 O.S. § 801) carries a minimum sentence of 5 years in prison. It is important to note that this law also includes failed attempts. It does not matter if the gun was not loaded, or even if the “firearm” used was a fake. Because the motive behind the use of an unloaded or imitation gun is still “force or fear,” it is considered armed robbery even with a toy gun. Robbery or attempted robbery with a dangerous weapon or imitation firearm is an “85 percent crime”.
Robbery is a Serious Felony
Robbery charges are very serious and the DA’s office prosecutes these cases aggressively. You or your loved one could be facing decades in prison, mandatory minimum sentencing, and even registration with law enforcement for placement on the Oklahoma Violent Offender Registry. Call us today at 918-884-7791 to discuss how we can defend you or your loved one from a Robbery charge.
PRESIDENT TRUMP’S EXECUTIVE ORDERS
On January 25, 2017, President Trump signed two executive orders (EOs) on immigration policy. These orders directed the Department of Homeland Security (DHS) to enlarge the deportation dragnet and further militarize the southern border of the U.S. The administration expanded the group of people who will be priorities for deportation, specifically noting “removable” immigrants who have been accused or convicted of committing criminal offenses. The EOs also reflected a focus on having local law enforcement agencies perform the functions of immigration officers through formal agreements and by denying federal funds to “sanctuary jurisdictions” that do not comply with requests to help Immigration and Customs Enforcement (ICE) detain and deport immigrants.
Do the EOs change who is legally subject to deportation “removable”?
No. The existing immigration laws dictate who is legally “removable.” Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions. The President cannot redefine who is legally “removable” without an act of Congress. However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.
Do the EOs change whom ICE will seek to detain and deport?
Yes. Some individuals who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction. Of note, any “removable” person who has been previously accused or convicted of a crime is now a priority for deportation.
Immigration authorities will prioritize deporting the following categories of “removable” people:
- Those with any criminal conviction(s);
- Those with previous criminal charges – even if such charges have not been resolved;
- Those believed by immigration officers to pose a threat to public safety or national security;
- Those who have a final order of removal; and
- Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.
For those currently in the criminal legal system, it is important to note the EO makes no distinction between the types of crime or level of offenses that will make a person a target for deportation. Also, it is likely ICE will prioritize people with prior convictions regardless of how long ago the conviction occurred or the level of the prior conviction.
Should I bother hiring a good Criminal Defense Attorney?
Yes! The executive orders confirm that immigrants with convictions will be targeted as a top priority for deportation. It is crucial to not just negotiate dispositions, but fight them to dismissal in order to minimize immigration consequences and exposure to enforcement agents. This applies to immigrants with and without lawful status! Make sure to hire a Criminal Defense Attorney that understands that any conviction even one that includes a deferred sentencing, probation, and expungement can still make you a priority for deportation.
Am I safe if it is a Municipal case?
No! Dispositions considered to be minor or even “non-criminal” can make your client a priority or deportation. For example, DHS considers municipal violations to be misdemeanor convictions. It is important to hire a attorney who is well versed in criminal law and understands that the only way to keep you in the United States is to fight your case and have it dismissed.
What does this mean?
Whether you are documented, or are here without papers, it is important that you stay out of the legal system. Don’t drink and drive, stay away from illegal controlled drugs, walk away from fights, and don’t carry a gun. But, if you are arrested, your first call is to a highly qualified criminal defense attorney who is not afraid to fight your case, because the only chance you may have to stay in this country is to challenge the charges and get them dismissed.
Brian J. Boeheim, Esq. --- Boeheim | Freeman PLLP --- 918-884-7791
When you are charged with a crime you have five options in how you plea:
- Not Guilty – the defendant claims innocence, and the case goes to trial before a judge or a jury of his/her peers.
- Guilty - the defendant admits to committing the crime and accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial
- Blind - the defendant admits to committing the crime and allows the judge to determine the sentence, avoiding a jury trial
- No Contest (Nolo Contendere) - the defendant neither admits nor denies guilt, but acknowledges that the evidence is sufficient to convict, should the case go to trial. The defendant accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial. Not all judges will accept a no-contest plea, so make sure your attorney is sure that the judge will accept this type of plea.
- Alford – the defendant claims innocence, but acknowledges that the evidence is sufficient to convict should the case go to a jury trial. The defendant accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial. There are several problems with an Alford plea. First, it has an innocent person accepting punishment on a crime they claim they did not commit. That flies in the face of the entire concept of innocent till proven guilty. Second, the judiciary, probation, and a parole board all frown on someone that, in their eyes, refuses to take responsibility. So, although it may seem like a way to claim one’s innocence, it can sometimes make the punishment even greater down the road.
Guilty pleas, no contest pleas, and Alford pleas all result in criminal conviction without a trial by jury. Before entering any plea, it is critical that the defendant fully understand his or her rights under the law and the possible ramifications of each type of plea. This is why it is very important to find an attorney who understands criminal law and will take the time to explain your options fully and completely.
There have been several headlines of late regarding civil forfeiture. It is a fairly complex legal and social issue, and by no means am I an expert, but I thought I would throw my two cents in an attempt to clarify some confusion my clients have voiced. Let me try to answer three questions: 1) What is civil forfeiture? 2) Why is it making news? And, 3) How might it affect you?
What is Civil Asset Forfeiture?
Civil Forfeiture is when law enforcement and the courts work in concert to take an asset from a person they believe used or acquired that asset from criminal activity. When I say asset I mean cash, bank funds, personal property (cars, boats, computers, etc.), or real property (houses, buildings, or land). The point of this is prevent drug dealers from benefiting financially from activities, and to use their assets to fund the war on drugs. Let me give you an example:
A person transporting drugs gets stopped for speeding. The person has warrants, so they are taken into custody. When the vehicle is legally searched (inventoried) before it is towed, the police find a large quantity of heroin. The person is arrested and convicted for trafficking heroin. The police then file for civil asset forfeiture of the vehicle, any cash, and any other personal property that is in the vehicle.
Why is it making news?
Recently there have three big changes. The first one happened about six months ago. That is when the Department of Justice (the Feds) decided to get out of the business of civil asset forfeiture for States. Up to this time, the DOJ would handle all of the Asset Forfeiture and then give a sizeable cut back to the state police agency that originally confiscated it. For several reasons, the DOJ decided that it wanted out of this business and the State’s had to take over this work, but they wanted to make it easier so they have been passing laws and judicially making laws to make it very easy to make this asset grab.
The first one was in the State of Oklahoma. The legislature passed a law that allowed the State Troopers to carry modified credit card swipe machines. The purpose of this is to allow them to swipe debit cards, gift cards, and cash cards and take every cent on them. Literally they could take every cent off your Starbuck’s gift card, and the worst part is that the charge on the card will look anonymous. On the positive side, they can’t reach into actual bank accounts, but if you received a cash bonus from your employer on a Visa/MC Debit card, they can siphon it dry. Now they claim they are only authorized to do this if they have arrested you of a crime that you could profit from, but this hasn’t been defined anywhere. Also, what about due process? How are they able to take your assets without a conviction? What happened to innocent until proven guilty?
This leads us to the second recent Court made law, out of Texas. The Texas Supreme court has decided that Civil Asset Forfeiture is above the U.S. Constitution. They decided (http://www.txcourts.gov/media/1386417/140692.pdf) that if the criminal charges are thrown out due to an illegal (unconstitutional) search and seizure then it is still okay to keep all of the assets confiscated, in this case a Lincoln Navigator. That’s right, the Texas Supreme Court has created law by saying that Assets Forfeited as part of an arrest, does not have to be validated by a conviction. What was I saying about innocent until proven guilty?
How might this affect you?
I don’t think I have to go into any great detail at this point. I think it is obvious, that if you are arrested, you have a chance of having all of your assets confiscated and forfeited to the State.
What can you do?
First, and foremost, stay out of trouble and away from drugs because that is the target these laws are attempting to hit. Second, contact your State representatives and let them know that you like the U.S. Constitution and would prefer it if they would stop coloring outside the lines. This type of freelance interpretation of the U.S. Constitution stinks, whether done by Liberals or Conservatives it makes for fewer freedoms and more State and federal control. Due process and the belief that people shouldn’t be punished until convicted must stay a cornerstone of our criminal legal system, otherwise we might as well have lost the “Cold War” or WWII for that matter.
The simple answer is, YES! The police can always search you. The real question is whether they can use what they find against you in court. Generally speaking, the U.S. Constitution and the Supreme Court have clearly said that warrantless searches are unconstitutional and any evidence found during an unconstitutional search shall be excluded as evidence in criminal proceedings. There are a few exceptions to this rule.
The first exception is if you give the police consent to search your person, your vehicle, or your home. This consent must be clear, but they can take something as small as a head nod as consent. This gets to be a very complex issue when you bring language barriers into play. The safest bet is to just say “NO” to any and all requests to search.
The second exception is when the police have probable cause. Probable cause means that there is sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. The idea here is that it may take too long to obtain a search warrant, and evidence may be removed or destroyed, so the Supreme Court allows police officers to search a person or a vehicle if a warrant would have been given anyway. Probable cause can be deduced by police observations, such as the smell of alcohol, the smell of marijuana, or seeing contraband (drugs or a gun) in plain view. The best way of avoiding this type of search is by not giving them a reason to stop you.
The last exception we’ll discuss in this article is an inventory search. This happens when your vehicle is impounded for towing by the police. It is an inventory of the contents of your vehicle. Any contraband they find can be used against you in a court of law. How can you avoid this? Make sure that you pull into a parking lot or private driveway. The police can only impound and tow your vehicle if it is a safety hazard, like on the roadway. If it is on private property, like a store or gas station parking lot, they cannot impound your vehicle and therefore any evidence they find as part of an inventory search is inadmissible in court.
We have only touched the surface of the issues surrounding search and seizure of evidence. This is just another reason to hire a lawyer who is well versed in the 4th Amendment to prevent the police from violating your Constitutional Rights.
With the Presidential primaries beginning, one of the hot topics is whether “immigrants without papers” have the protection of the U.S. Constitution and the Bill of Rights. The 14th Amendment and the U.S. Supreme Court say YES!:
The 14th Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The key word in this Amendment is the word “person”. There it is as clear as day right after the term citizens. This leaves little doubt that the Amendment was clearly meant to include every person living within the jurisdiction. That means everyone, including those without papers, and the U.S. Supreme Court seems to agree. In Zadvydas v. Davis (2001) the U.S. Supreme Court said that "due process" of the 14th Amendment applies to all aliens in the United States whose presence maybe or is "unlawful, involuntary or transitory." Twenty years before Zadvydas, the Supreme Court ruled in Plyler v. Doe (1982) that Texas could not enforce a state law that prohibited children without papers from attending grade schools. Specifically they said, “no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under immigration laws, an alien is a 'person' in any ordinary sense of the term ... the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.” In Almeida-Sanchez v. United States (1973) they concluded that all criminal charge-related elements of the Constitution's amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, legally or illegally present.
Even as far back as the late 1800’s the U.S. Supreme Court was clear about the rights of immigrants without papers. In Yick Wo v. Hopkins (1886), the court ruled that: States cannot deny equal justice is still under the Constitution. And, in Wong Win v. United States (1896), the court ruled that all persons within the territory of the United States are entitled to the protection by the 5th and 6th Amendments, even aliens.
In summary, immigrants without papers have the full protection of due process under the U.S. Constitution by way of the word "persons" in the 14th Amendment.
The law allows a police officer to use deception in an investigation. This means that during an interview by police, they can make false claims about what witnesses have seen or evidence they have recovered. They can say just about anything they want in order to get a confession as long as the deception does not result in what would be considered coercion sufficient to make someone confess to a crime they did not commit. Let’s be clear, this means that they can get away with almost any lie just short of telling you a loved one has died.
For instance, a detective might tell a burglary suspect that they have a witness who saw them enter a house, or that they found the suspects fingerprints inside the house. If the suspect knows he had never been in the house, then you might think there is little chance of getting a confession. But, recent studies have shown that suspects often confess to crimes they did not commit under the false impression that cooperating, even by admitting to something they did not do, will benefit them in the long-term, only to realize that they have created far greater problems for themselves.
Here is another example of how this might play out: A detective might tell a woman that her children will be taken from her and placed into foster care if she does not confess to a crime. The threat of losing her children is sufficient to make some people admit to doing something they didn't do. This borders on coercion, but once you have confessed it is hard to put that genie back in the bottle, because the police will begin to look through your life with a fine tooth comb trying to find anything to corroborate the confession they believe they just got. Also, the confession will be used against her in any hearings to take away her children.
Should police be allowed to blatantly lie to suspects? On the one hand, it is a very persuasive and efficient method to motivate a guilty person into confessing. It would also seem that an innocent person would see through these lies and quit talking to the police immediately. On the other hand, people who have something to fear can be intimidated and potentially pressured into confessing to something they did not do. This is especially true of non-residents without papers, people with difficulty speaking English, and those who have little or no education.
What should you do? If the police are interviewing you, they probably are looking at you as a suspect. Politely tell them you have nothing to say, and that you want an attorney.
If you are charged with a crime, there will be one of four results when you go to court. Dismissal is the best of all results because your charges have been dropped and you are free. Jail or Prison time is obviously the worst result because it means you will be incarcerated for some period of time. In between these two extremes are two forms of probation: Suspended Sentence and Deferred Sentence. Let’s focus today on these two forms of probation.
If it is your first offense, your attorney may be able to get you deferred sentencing and probation instead of jail time. This alternative sentencing solution is the best possible outcome other than an outright dismissal. A deferred sentence allows you to have your court record sealed after successfully completing all of the court-ordered probation. This means having all of your fines and DA supervision paid, as well as, completing any special orders like Drug and Alcohol Assessment, DUI School, or Batters Intervention Program, and obviously, you must not break any federal, state, municipal, or tribal laws.
Having your record expunged is a tremendous advantage since a criminal record can limit your job and licensure opportunities. So how does this work? It starts with you pleading guilty to the criminal charge. However, instead of accepting the plea and rendering judgment, the judge delays judgment and sentencing, giving the defendant an opportunity to complete probation instead.
For example, a first DUI offender may plead guilty to DUI, but instead of convicting the defendant and ordering him or her to jail, the judge would defer sentencing and order the defendant to drug and alcohol treatment, community service, participating in a victim’s impact panel, and similar terms of probation.
If you were to violate probation or commit other crimes, the prosecutor will likely file a Motion to Accelerate sentencing. The judge may then accept the guilty plea and order you to serve a jail or prison sentence. If the you successfully completes your probation, the court records are updated. Your guilty plea is changed to reflect a plea of “not guilty,” and the case is dismissed. There is no criminal conviction, and through expungement, your name is stricken from court records.
A suspended sentence is different from a deferred sentence. While both types of sentencing allow you to serve probation in lieu of all or part of the jail or prison sentence, a suspended sentence results in criminal conviction, which will stay on your record. It isn’t jail or prison, but a suspended sentence pales in comparison to the benefits of a deferred sentence.