As Mr. Crook’s lawyer, explain the advice you will give him both pre-arrest and post-arrest.
Dear Mr. Crook, I am the defense attorney assigned to you for this case, and am fully trained to handle the case at hand. As your attorney, I advise you to remain silent when the officers first ask to interrogate you, and to not waive your rights to have me present at the interrogation itself. Finally when I am called in to be present at your actual interrogation, at the time of the interrogation you will be allowed to ask me for advice on how you should answer every question. I urge you to take this opportunity to consult me before answering every question you wish to answer, so you do not give the investigator reason to believe that you are the suspect of the charges you were arrested under.
Chief Justice Rehnquist once stated in the case of Dickerson V. United States (Law.cornell.edu, “DICKERSON V. UNITED STATES” WEB PAGE) that, “In Miranda v. Arizona, 384 U.S. 436 (1966), we held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence.” This is the type of expert wisdom I am banking on in my advising you to not speak to your investigator unless I, your defense attorney, is present at their investigative interrogation of you.
Identify all major steps you will take to prepare a defense for Mr. Crook, including investigation of evidence and witnesses, should Mr. Crook be arrested for a felony such as Armed Robbery.
Should you be arrested for a felony such as Armed Robbery, I will take every measure possible to ensure that you will not be convicted of the crime you are charged with, even to the extent of petitioning the judge for a lessening of charges if those you were charged with seem too extreme for the evidence that is clearly at hand. I will be interviewing the witnesses, asking them questions such as any fond memories they have of being your friend, such as asking them what they believe to be your strongest character qualities, such as asking them how long they have known you and what types of business and pleasure activities they have experienced specifically with you. I will also ask them if they have any evidence to prove your innocence, such as documentary evidence including ATM receipts, credit card transaction records, or photographic evidence to be useful in proving you were elsewhere at the time of the crime. I will also be asking the witnesses if they would like to testify on your behalf in the court of law when the time for trial comes along, and if that is the case, I will talk to the judge about sending out correspondence of summons to ensure that they will be present in the court for your trial.
Just to help inform you of the accurate definition of what Armed Robbery actually is, Matthew Bender states (Bender, p. 443), “Robbery involves either violence or the threat of violence, and the theft of property.” Since you may have been charged with using a firearm -- your BB gun in this case -- in the commission of robbing a gas station for $130 dollars as has been brought to my attention, that’s why Armed Robbery might be the charge which may be placed upon you.
Explain to Mr. Crook the pre-trial process and any motions you would file on his behalf (including your reasoning for filing these motions).
I would like to file a pretrial right of discovery motion on your behalf, in order to fully investigate the prosecutor’s evidence in order to prepare my defense examinations on his evidence ahead of time. If any of the prosecutor’s evidence is objectionable in accordance to the right against illegal search and seizure or the fruit of the poisoned tree doctrine, I plan to file a motion to suppress evidence in order to have the judge discard the evidence as objectionable and inadmissible as evidence in the court of law. If the motion to suppress evidence is sustained, then we will hold a hearing to suppress evidence, to determine whether the evidence was indeed illegally obtained or not. If the case was not brought to trial or the prosecutor’s evidence was seriously defective, then I will file a motion to dismiss the charges. If we cannot locate a material witness before the trial, and you provide evidence why the material witness must be maintained, after considerable effort to locate the witness, and if no other witness can present this particular testimony, then I will file a motion of continuance in order to attempt to secure a material witness.
If they charge you for more than one offense such as the multiple charges of assault and armed robbery, I will file for a motion for severance of offenses so they can be tried as two separate cases, if that is your wish. If your mental state comes into question, I will file a motion to determine competency, in order to possibly lessen the charges as applicable or to call for a retrial at a later date. I may also attend a pretrial conference where the adversary and the judge are present, in order to determine if the case even needs to go to trial. The prosecutor may offer you a plea negotiation, which you are free to decline if you wish. If you choose to enter into a negotiated plea, you may also later retract the negotiated plea if it becomes apparent that either the judge or prosecutor do not agree with the plea.
For further information on what occurs during pretrial conference hearings, as Cliff Roberson put it (Roberson, p. 243), “These conferences are informal meetings, usually in the judge’s chambers, between both attorneys and the judge. The strong and weak points of the case are discussed in an effort to arrive at a settlement without going to trial.” So, as you can imagine, pretrial conferences are much more informal than are preliminary hearings or grand jury proceedings.
Describe to Mr. Crook his trial options.
When the time for trial comes along, you will be given a number of options as to how you can plead. As I mentioned earlier, the prosecutor may be allowed to offer you a plea bargain, and you can accept or decline that as you wish. On the other hand if you decline any plea bargain the prosecutor provides, you will be given the opportunity to plead one of the following pleas. If you plea Nolo Contendere otherwise known as No Contest, that would mean you either prefer not to say if you committed the crime or not, or it would mean that you committed the crime but refuse to consider it is a crime from within your chosen system of understanding. If you plead innocent, the case will go on as planned, and I will be required to attempt to prove your innocence before the court and jury. You may also choose to take the stand and testify yourself if you choose to defend your own innocence in such a manner. If you stand mute and refuse to enter a plea, your lack of plea will probably lead the judge to assume you would have chosen to plead innocent if your tongue allowed you to, and the trial will go on as would be desirable. If you plead guilty, your sentencing will follow as according to state law, as this is a state case and not a Federal case.
To help you understand the plea of Nolo Contendere or No Contest a little bit better, the editors of Merriam-Webster Dictionary define it this way as their primary definition, saying (Merriam-webster.com, “Nolo Contendere – Definition and More from the Free Merriam-Webster Dictionary” WEB PAGE), “a plea in a criminal prosecution that without admitting guilt subjects the defendant to conviction but does not preclude denying the truth of the charges in a collateral proceeding.”
That, in a nutshell, is the legal definition of Nolo Contendere.
If this case goes to trial, discuss with Mr. Crook the possible sentence he could face based upon a review of your own state’s criminal laws.
If this case goes to trial, here is the possible sentence you could face based on the criminal laws of our state Florida. In 1998, Florida Governor Jeb Bush brought to legislation a new gun-law statute aimed to deter violent crimes, notably acts of armed felony. Since you are charged with the armed robbery of a gas station for the amount of $130 dollars, it would indeed be considered a felony, if you are convicted and the 10-20-LIFE legislation in our state would offer you a mandatory minimum sentence if you are proven guilty as charged, along the following guideline of determinate sentencing.
If a firearm was in your possession but not discharged at the scene of the crime, you will be faced with a mandatory minimum sentence of 10 years in prison.
If you possessed a firearm at the time of the robbery and it was discharged but did not injure or kill anybody, you will be faced with a mandatory minimum sentence of 20 years in prison.
If you possessed a firearm at the time of the robbery and the gun was used by you to injure or kill someone, you will be faced with a mandatory minimum sentence of life in prison.
I am aware that the weapon you have been charged of being in possession of is a BB gun, but whether the state considers it a firearm or not is considerably up for dispute. In the long run, that is for the judge alone to decide. It is also the decision of the judge as to whether or not your sentence will be only the mandatory minimum if you are convicted, or if he will tack on additional time for reasons he might define during the course of the trial, if this case passes the preliminary hearing or grand jury proceeding and makes it to court.
(Info on current Florida legislation derived from the following web page:
“Florida 10-20-LIFE – Mandatory Minimum Prison Sentences”
http://www.dc.state.fl.us/oth/10-20-life/ )
Define key legal terms to Mr. Crook so he has an understanding of the legal principles involved.
Interrogation – A custodial investigation where an investigator or investigators ask a suspect for information regarding whether they were involved in the commission of a crime, and if they admit guilt, also to determine a testimony of exactly how the crime took place, if possible.
Investigator – The investigator is the police officer who conducts the investigation of the crime, and also who can conduct witness, victim, and informant interviews, as well as suspect interrogations, among other duties such as the discovery, collection, preservation, and transmission of evidence from the scene of the crime.
Felony – A felony is the grade of crime considered of higher offense than a misdemeanor. Felonies include slayings, armed robberies, larceny, and other higher offense grade crimes, whereas misdemeanors include lesser offense violations such as petty shoplifting and petty drug charges.
Armed Robbery – Armed robbery is the felonious act of committing robbery while in the possession of a drawn weapon, whether the weapon was fired -- used in an attacking gesture -- or not.
Interviewing – Interviewing is what takes place when an investigator or attorney asks witnesses, victims, or informants for information to be used as witness testimonial evidence in a criminal trial or pretrial.
Documentary evidence – Documentary evidence is evidence which exists in the form of records such as photographs, letters, receipts, and even computer files. It’s different from Physical Evidence and Verbal Evidence.
Testify – To testify is to give one’s opinion in all honesty and to the best of one’s knowledge regarding a case at hand.
Judge – The judge is the one, often referred to as “the court”, who presides over the courtroom proceedings, who ensures that order be kept in the court, who advises the jurors of their responsibilities, and who usually determines the sentence to be given if the suspect is found guilty as charged, beyond any sentencing matrices.
Summons – A summons is a court order similar to a subpoena or citation, which asks someone to appear in court.
Right of discovery motion – Right of Discovery is a pretrial adversarial motion which asks permission of the court for the opposing side to present the evidence they plan to use in the case which is about to occur.
Prosecutor – The prosecutor is the attorney in criminal justice proceedings whose duty is to state the nature of the crime with which the defendant is charged, as well as to present the evidence leading to the defendant’s possible conviction on behalf of the state or Federal government, and to also interview witnesses in the courtroom on the state’s behalf.
Right against illegal search and seizure – This law is set forth in the 4th Amendment of the Bill of Rights in order to prevent evidence from being admissible in a court of law if it was obtained via illegal means.
Fruit of the poisoned tree doctrine – This works hand in hand with the 4th Amendment’s stance against illegal search and seizure to also prevent testimonies which are based on evidence illegally obtained from being used as evidence .
Motion to suppress evidence – This is a common defense motion which is used when the defense believes that certain articles of prosecutorial evidence were illegally obtained, or if certain testimonies violated the Fruit of the poisoned tree doctrine.
Hearing to suppress evidence – This is the hearing which follows a motion to suppress evidence, in order to determine if the evidence is truly inadmissible in a court of law or not.
Motion to dismiss the charges – This is a motion to dismiss the charges and thus to dismiss the case at hand, when there is a belief that the prosecutor’s evidence for the case is seriously defective.
Motion of continuance – A motion of continuance is usually placed to the judge by the defense attorney when a material witness is required for the defendant’s case, but if it would take a longer amount of time for the material witness to be located and subpoenaed to court.
Motion for severance of offenses – This motion is used to petition the judge to split a case of multiple charges into several cases of one charge each.
Motion to determine competency – This is a motion which petitions the court to determine if the defendant is mentally capable to stand trial, and must be accompanied by evidence of the defendant’s current incapability in order for the motion to be honored by the judge.
Pretrial conference – A conference between the prosecutor, defense, and judge, sometimes held before the case in order to see if the case truly needs to go to trial or not.
Plea negotiation – A common pretrial procedure in many states, where the prosecutor offers the defendant a lesser sentence (or lesser charges) in exchange for an admission of guilt, usually in order to decrease trial expenses; this is also commonly referred to as a Plea Bargain.
Nolo Contendere – Also known as a No Contest plea, this can be plead by the defendant when they prefer to not plead guilty nor innocent, or if they believe that they committed the crime but do not believe the criminal offense is a crime.
Plead innocent – When a defendant pleads innocent, they do not feel they are guilty of having committed the crime(s) they had been charged of committing.
Plead guilty – If a defendant pleads guilty, they are stating that they are guilty of committing the crime(s) they were charged of having committed.
Mandatory minimum sentence – A guideline of determinate sentencing, mandatory minimum sentences are a guideline to help the judge decide upon the sentence of the suspect if they are convicted of all crimes as charged.
Determinate sentencing – This is a method to assist the judge in coming to a conclusion of how to sentence the suspect if they are found guilty. Charts of determinate sentencing often include sentencing matrices which show common sentencing options in a diagrammatic form.
Preliminary hearing – These take place before a criminal trial, including the adversarial process, in order to determine if the case should go to full trial. The accused is usually present at a preliminary hearing.
Grand jury proceeding – Grand jury hearings also take place to determine if a case should go to trial, but are non-adversarial, and usually consist of the prosecutor handing the indictment or true-bill of the crimes the suspect has been charged with to a grand jury panel, in order for them to determine if the case will go to trial or not. The accused is generally not entitled to be present at a grand jury proceeding.
Cite all legal authority used in giving advice to Mr. Crook.
I come from a family background of a highly religious former entertainment attorney father and a shrewd taxpaying psychologist mother. In high school I excelled at Law, Government, and Economics classes, and I did very well in Criminal Procedure, Criminal Investigation, and sundry other Criminal Justice classes in college as of the time of this writing, as well as performing a great deal of internet research on contemporary law and criminal justice, and on the historical development thereof.
Besides being an attorney, I am also a musician.
References:
1. Law.cornell.edu, “DICKERSON V. UNITED STATES” WEB PAGE.
http://www.law.cornell.edu/supct/html/99-5525.ZO.html
2. Criminal Investigation: A Method for Restructuring the Past, by Matthew Bender.
Copyright © 2007 Matthew Bender & Company, Inc.
Licensed to Kaplan University in Agreement with LexisNexis Anderson Publishing
3. Procedures in the Justice System, Eighth Edition, by Cliff Roberson, Harvey Wallace, and Gilbert B. Stuckey. Published by Prentice Hall.
Copyright © 2007 by Pearson Education, Inc.
4. Merriam-webster.com,
“Nolo Contendere – Definition and More from the Free Merriam-Webster Dictionary” WEB PAGE.
http://www.merriam-webster.com/dictionary/nolo%20contendere
5. Florida Department of Corrections web site,
“Florida 10-20-LIFE – Mandatory Minimum Prison Sentences” WEB PAGE.
- 
- 
- 
Posts
No comments:
Post a Comment