Help Me, Help you – How You Can Help Your Criminal Case
Walk into any criminal courtroom and you will see hundreds of flat, lifeless, 8 x 11 inch file folders. Inside you will find charging instruments, offense reports, witness statements, criminal histories, CDs, DVDs, and other evidence submitted by state agencies attempting to link persons to a crime. To many prosecutors, tirelessly shifting through mounds of paper, the accused is nothing more than a 8 X 11 inch file folder. It is the criminal defense attorney’s job, with your help, to shape that lifeless file into a living, breathing, three-dimensional human being.
So what can you do to help your criminal case? Start by:
- Hiring a qualified criminal defense attorney.
- Not committing another crime while out on bond or violating any bond conditions (e.g. dirty drug test). Few things anger courts more.
- Showing up to Court on time and in proper attire. Court staff takes note of their audience.
- Providing names of witnesses who can give their account of what actually happened on the alleged crime date. (e.g. sobriety witnesses for a DWI, family members for an assault, etc).
- Giving your lawyer proof of employment and/or school transcripts. Prosecutors and judges want to know what your current and future plans are.
- Obtaining character letters from people who know the real you. The character letter should be one page. The first paragraph should identify who the writer is, where they live, and how they are employed. The second paragraph should describe how they know you, how long they have known you, and opportunities to observe you for relevant character traits (e.g. drinking habits, honesty, etc.). The third paragraph should explain specific instances of good character. The fourth paragraph should provide the writer is aware of the criminal charges and that such behaivior is out of character. Lastly, the writer’s should include their contact information.
- Tracking down records of your medical history.
- Providing honors, awards, or achievements earned in the community. If you served and received an honorable discharge, provide your attorney with proof of such.
- Attending relevant classes (e.g. substance abuse class or AA for drug and alcohol charges, theft class for theft charges, anger management class for assault charges).
- Understanding prosecutors will look at your social media accounts, such as Facebook, twitter, linkedin, etc. Pictures of you partying aren’t going to help your DWI case.
- Emailing your lawyer a picture of you with your family (i.e. the new face for the 8 x 11 file).
With the tools above your attorney can breath life into your file and obtain the best possible result.
Sometimes When You Win. . . Exonerations and Criminal Defense.
In the 1992 basketball film White Men Can’t Jump, it was explained:
Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.
Make Sense?
Neither does the state of our Criminal Justice System.
Sometimes When You Win…
The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.
Crime Breakdown:
Homicide: 58 or 39 % (new record)
Drug Cases: 51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault: 15 or 10%
…You Actually Lose:
Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys? The prosecutors? The judges?
The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).
Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%
Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.
Official Misconduct:
There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.
With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.
Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country. Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.
Guilty Pleas:
Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.
No Crime:
What? Huh?
How could someone be convicted of something that is not a crime?
A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.
Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things. They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable. The experts of the unsinkable ship, Titanic, sounded believable too. “Junk science” has become a “fly in the ear” for many types of criminal offenses.
False Confessions:
People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.
Still Work To Be Done
While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better. So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place. In other words, sometimes when you win, you really lose.
DWI – Collateral Consequences
A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties. That’s the bad news, the good news is you can fight the DWI!
Deal or No Deal?
Recent headlines have been filled by criminal charges against NFL star running back Adrian Peterson. From the get go Peterson maintained his innocence. In a statement issued September 15 he said, “I never intended to harm my son. I will say the same thing once I have my day in court”. On November 3, 2014 his day in court came and when asked how do you plead to the charges, he responded, “no contest” Wasn’t he just insisting he was innocent? Maybe he was innocent; maybe he wasn’t. Regardless, the system doesn’t care.
The American Injustice System?
Mr. Peterson was formally indicted and charged for the offense of Injury to a Child under Tex. Pen. Code 22.04 (a)(3). This offense is a state jail felony, with a punishment range up to two years in prison and/or up to a $10,000 fine. State jail felony convictions are day for day (i.e. 365 days means 365 days). He plead “no contest” (i.e. guilty) to reckless assault, a Class A misdemeanor and received a two year deferred adjudication conditioned upon a $4000 fine, plus court costs, and eighty hours of community service. Upon successful completion of the deferred adjudication he will be eligible for a non-disclosure. Make no mistake about it this was a good deal. He avoids jail time; he avoids a felony; he avoids a final conviction; and he can have his record blocked in the future. In just a few months he went from “having his day in court” with the possibility of a felony conviction and up to two years in state jail, to a “no contest” misdemeanor conviction and zero days in an orange jumpsuit.
Welcome to the American Justice System. But he was guilty, you say. Maybe he was, but let’s assume he wasn’t. In fact, let’s assume it was you who was arrested for a crime you did not commit. Let’s assume you faced the very situation Mr. Peterson did, deal or no deal? What if you were wrongfully charged with murder with the possibility of life in prison, but were offered a lesser charge of ten years in prison? Would you take the ten or would you seek your day in court? William Kelly found himself in that very situation and took the ten. Two years later DNA revealed the State had the wrong guy and Mr. Kelly was exonerated. He isn’t alone.
A statistic released by the Innocence Project (an organization dedicated to exonerating those who have been wrongfully convicted) revealed of the three hundred people the project has proven were wrongfully convicted of rape and murder, at least 10%, plead guilty to those crimes. Think about that. Thirty people stood up in court, walked to the bench, looked the judge in the eye, and said they were guilty of a crime they DID NOT COMMIT. Criminologists recently estimated of the 2.2 million Americans in prison, over 2 million are there because of plea bargains. Of those 2 million, somewhere between 2 – 8 % plead guilty to crimes they DID NOT COMMIT. That means 40,000 – 160,000 people are sitting in jail for something they did not do.
But why would an innocent person plead guilty? United States District Court Judge Jed S. Rakoff, in his recent article for the New York Review of Books, “Why Innocent People Plead Guilty” reasoned innocent people often plead guilty to avoid the potential, lurking harsh sentence at trial. He notes the scenario can be seen played out at your local courthouse time and time again. The accused is charged with a crime. The prosecutor offers a lesser punishment or even a lesser charge in exchange for a guilty plea. To assist in making the accused’s decision, the prosecutor threatens with enhancements, additional charges, or “take it or leave it” offers. The court is anxious to move their docket. The prosecutor is anxious to get a conviction. The accused has been living the nightmare for over a year and is tired. The pressure has taken its toll. The deal is accepted. The accused pleads guilty. But, is he? Rakoff expresses his concern that prosecutors have too much power, acting with “virtual impunity”, in determining the fate of an accused.
How did the American Justice System get to this point? Judge Rakoff explains, as crime rates rose over the years, plea bargaining offered a way out. Cases could be resolved without burdening the system with additional trials. The accused could avoid jail or less jail time. The government could get a conviction without using further money, resources, and time. As crime rates continued to rise (especially drug and violent crimes) and with the passing of “tough on crime” legislation, plea bargains began occurring at extremely high rates. It is estimated approximately 95% of criminal cases, not dismissed, result in a deal. Judge Rakoff states, the flaw is in deals determined largely by the prosecutor and government policy, with little judicial input. Subtle, small things such as the mood of a government employee that day can have its effect. I would add defense attorneys unwilling to set cases for trial add to the high number of plea bargains. The judge expresses the system in the United States has evolved into a far cry from what Thomas Jefferson and co. contemplated, what the movies and television portray, or what the average American believes. Justice Rakoff isn’t alone in his opinion. The Human Rights Watch, published a 132-page report titled An Offer You Can’t Refuse, highlighting similar problems in today’s justice system.
Of course, the American Justice System is not entirely flawed. It is still the best justice system in the world. Watch any high-profile, foreign case for confirmation. Further, plea bargains are necessary to keep the system moving. When done properly, a plea bargain can result in a win for both the accused and the government. However, if innocent people are pleading guilty to crimes they did not commit; if innocent people are sitting in jail for crimes they did not commit, then our system needs help. There was a time in America where the jury-trial served not only as a truth-seeking mechanism but also as means of achieving fairness. Have we lost sight of that original goal?
So it begs the question, if you were falsely accused of a crime, what would you do? Deal or No Deal.
Collateral Consequences of Criminal Convictions
Posted By: ADAMO / ADAMO
A criminal conviction can follow you around like luggage.
So before you enter into a plea of guilty you need to understand the potential consequences of doing so. If you are charged with a drug, sex, or violent offense you need to be on high alert.
I. Possible Financial Consequences
1. Loss of Employment
FELONY CONVICTIONS and convictions for CRIMES OF MORAL TURPITUDE* can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses. Once upon a time, one could enter a plea of deferred adjudication and be assured the offense would never be used against them. This has since changed, and deferreds are routinely used as disqualifications to employment.
To see a list of potential Texas licenses that may be impacted click here.
*A Crime of Moral Turpitude includes, but is not limited to: Issuance of a bad check with the intent to defraud; prostitution; theft; swindling; false report to police officer; assault by a man against a woman; indecent exposure; bigamy by a lawyer; failure to identify; delivery of a controlled substance; violation of a protective order involving family violence; failure to stop and render aid (sometimes).
2. Loss of Funding and Assistance
A. Education Funding
i. Federal Loans/Grants
- Federal education grants are unavailable to those incarcerated in federal or state penal institutions (self-explanatory). A conviction for possession or sale of a controlled substance can make a person temporarily or permanently ineligible for federal loans or grants under the Drug Free Student Loans Act of 1998.
ii. State Loans/Grants
- Similarly, Tex. Ed. Code §54.633 states one who commits a felony or class A misdemeanor, or an offense under the Texas Controlled Substances Act, forfeits a prepaid higher education scholarship. This includes offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results. Thus, even a minor Class C misdemeanor offense (i.e. drug paraphernalia) may result in the loss of education funding.
- Many schools have adopted “zero tolerance” policies covering potential consequences for any type of criminal offense occuring both on and off campus grounds. Check your schools disciplinary code for additional information.
B. Federally Funded Assistance Programs
- Lifetime ban on food stamps and federally funded public assistance for felony drug convictions. 21 USC 862a.
- Mandatory ineligibility for federal health care benefits for federal distribution convictions. 42 USC 1320a-7.
- Federal grant, license contracts, and other benefits are restricted for felony drug convictions. 21 USC 862.
- Exclusion of federal subsidized or funded housing for drug offenders. 42 USC 1437(1)(b).
C. Asset Forfeiture
- Asset forfeiture is a possibility in both state and federal courts. Your home, business, automobiles, and “cash stash” can all become property of the government. Asset forfeiture typically applies in narcotic cases, but if you are charged with a Felony DWI your vehicle may be forfeited. In order for the government to successfully become owners of your property they must prove, generally, that the asset is “connected to” the charged offense or criminal activity.
D. Surcharges (paid to keep your license)
- Certain convictions result in license suspensions and surcharges.
- DWI – 1st offense = $1,000 per year for 3 years;
- DWI – 2nd offense = $1500 per year for 3 years;
- DWI – BAC > 0.16 = $2000 per year for 3 years;
- Driving with Invalid License = $250 per year for 3 years.
II. Possible Rights and Privilege Consequences
A. Possession of Firearms
i. Texas Law
- A convicted felon is prohibited from possessing a firearm. Tex. Pen. Code §46.04. This includes an individual placed on probation, unless their “rights have been restored” under Tex. Code Crim. Proc. art. 42.12 §20 where the court sets aside the veridic or permits the defendant to withdraw the plea and dismisses the complaint.
- A conviction of misdemeanor family violence under Tex. Pen. Code §22.01, prohibits a person from possessing a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation. Tex. Pen. Code 46.04(b).
- A conviction will affect a person’s ability to obtain a concealed handgun license (CHL). Tex. Gov. Code § 411.172.
- Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later. Tex. Pen. Code §46.04.
But…
In Texas you must pay attention to federal laws too. Courts have ruled, if a state law has any exception to the restoration of rights regarding firearms (and Texas does under Tex. Code Crim. Proc. art. 42.12 §20) then the felony conviction prohibits one from possessing, transporting, etc. firearms and ammunition. 524 U.S. 308. See also U.S. v. Daugherty, 264 F3d 513 (5th Cir. 2001) (where the court affirmed the conviction of felon in possession who had successfully completed probation).
ii. Federal Law
- A conviction for an offense carrying a maximum punishment of more than one year in prison prohibits the person from possessing, shipping, receiving, or transporting a firearm or ammunition. 18 USC 922(g).
- If a person is has been placed on deferred adjudication or is still under indictment they are prohibited from acquiring firearms or ammunition.
- A person convicted of misdemeanor domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm. 18 USC 922(g)(9).
B. Driver’s License Restrictions
|
Discretionary one year suspension. |
|
Mandatory one year suspension |
|
180 days for 1st offense;1 year for 2nd offense |
|
180 days for 1st offense;1 year for 2nd offense |
|
90 days – 1 year |
|
1 year suspension |
Alcohol/Drugs and Minors:
|
1 year suspension (with exceptions);30 days – 1st offense; 60 days – 2nd offense; 180 days – 3rd offense; 180 days – 1 year |
|
180 days |
C. Loss of Passport Privileges
- An issued passport may be revoked, even for misdemeanor drug offense, if the government finds that the criminal offense should give rise to such disqualifications. 22 USC 2714(b)(2).
D. Civil Rights
1. Voting: a convicted felon may not vote in a public election. A conviction is considered final whether the sentence is imposed immediately or suspended (i.e. probation). A convictions is not final if it is on appeal. This ineligibility lasts until the offender has been “…fully discharged…or completed a period of probation ordered by the court.” Tex. Election Code §11.002(4).
2. Public Office: A convicted felon may not run for, or be appointed to, public elective office in Texas. Probation counts as a conviction. Except in limited circumstances (i.e. pardon), the offender is barred from life.
3. Jury Service: A person convicted of, or currently charged with a misdemeanor theft may not serve on a jury. This may apply to one serving a deferred adjudication.
E. Divorce/Child Custody
1. Evidence of abusive physical force against a spouse, child’s parent, or any person younger than 18 years of age and within two (2) years of a divorce being filed can be considered in regard to sole or joint conservatorship. Tex. Family Code §153.004.
2. Evidence of a history or pattern of physical or sexual abuse may be considered by the court in awarding joint managing conservatorship (JMC). A finding of such removes the presumption that the appointment of parents as JMC’s is in the best interest of the child.
3. The court may not allow access to a child if it is shown by a preponderance of evidence there is a history or pattern of family violence during the two (2) years preceding the date of filing the lawsuit.
4. A conservator convicted or placed on deferred adjudication for: indecency with a child; sexual assault, or aggravated sexual assault, is considered a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child. Tex. Family Code §156.104(a).
5. A party may obtain a protective order if there are facts and circumstances of family violence.
F. Sex Offender Registration: results in the imposition of significant restrictions and requirements, including losing your right to privacy in electronic communication or data.
III. Immigration Consequences
if you are not a citizen of the United States you should consult an immigration attorney while your criminal case is pending. Your criminal defense attorney may be able to refer you to a qualified immigration attorney.
1. Deportation/Removal
- You are not a U.S. citizen; AND
- you commit a crime of moral turpitude;
- with a punishment range of at least one year; AND
- the crime is committed within five (5) years after admission to the United States or you commit two or more crimes that did not arise out of a single scheme of criminal misconduct any time after admission to the United States.
- you commit a crime of moral turpitude;
OR
- you commit an “aggravated felony”.
- For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
- Examples include such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering; fraud; tax evasion greater than $10,000; theft or violent crime with a sentence order of a least one year; treason; perjury with a sentence of at least one year; etc.
- See also §247 of the INA for additional deportable offenses.
- For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
- Under 101(a)(48)(A) of the INA the definition of a conviction includes deferred adjudication.
The importance of knowing these issues can not be understated. Too often we receive phone calls from individuals unable to escape the cloud of previous mistakes. Make sure you are under the guidance of a qualified attorney. BE PREPARED.