MY PHILOSOPHY
Some people believe that it is unnecessary to retain counsel with regard to criminal allegations until the accused has been indicted by a Grand Jury or formally charged. I take a contrary position to this strategy, suggesting that the accused retain an attorney and get involved in the process as soon as possible. This proactive approach allows more time to investigate, obtain and preserve perishable evidence and to preserve witnesses testimony before memories fade or other motivations develop which can cause the truth to vary.
Early involvement gives me the opportunity to identify factual, statutory and Constitutional issues important to the defense of your case. Once these issues are identified, we take great pride in keeping ahead of the prosecution with our investigation, while at the same time developing the most effective strategy to defend your case. Being proactive in a criminal case will often make the difference between liberty and wrongful or unnecessary incarceration.
BASIC INFORMATION ABOUT THE CRIMINAL JUSTICE SYSTEM
The best way to understand the Criminal Justice System is to start with the basics. After an arrest, a Municipal Court Judge or Magistrate will, within 72 hours of your arrest, advise you of the charges against you and discuss your eligibility for a bond. If you are unable to make bond, the Municipal Court will usually hold a preliminary hearing several days after an arrest to determine if there is sufficient evidence to bind the case over to the State or Superior court. Misdemeanors, which are less serious cases, punishable by 12 months or less in jail, are bound over to the Solicitor General for prosecution in State Court. Felonies, which are more serious crimes, punishable by one year or more in prison, are sent to the District Attorney for further investigation and prosecution in Superior Court. The District Attorney’s office presents most felony cases to the Grand Jury for indictment when their investigation is complete. It usually takes 45 to 90 days from the day of arrest for a case to be presented to the Grand Jury.
The Grand Jury consists of 16 to 23 county citizens who serve for a statutorily designated period of time. They are randomly selected from the list of registered voters. One duty of the Grand Jury is to determine if there is sufficient evidence to bring formal charges against an individual for a specific crime. Neither the defendant nor his or her attorney is present at the Grand Jury hearing, which commonly serves as a rubber stamp for the District Attorney’s Office to indict you.
After hearing evidence, the Grand Jurors discuss the case in private and vote to return a TRUE BILL of indictment or a NO BILL. If a TRUE BILL is returned, the defendant is indicted and must stand trial. If a NO BILL is returned, the defendant is not indicted and the case is dismissed by the Grand Jury.
Once a case is indicted, it is assigned to a judge of the Superior Court and the District Attorney or his assistant, an Assistant District Attorney, is assigned to prosecute the case.
ARRAIGNMENT AND PRETRIAL MOTIONS
At arraignment, the initial appearance in a criminal prosecution, the defendant is formally advised by the court of the charges contained in the indictment against him and is given the opportunity to plead GUILTY or NOT GUILTY to the charges. If the defendant pleads NOT GUILTY, the case is set for trial. If the defendant pleads GUILTY, he or she will usually be sentenced that day.
The victim in a case is always kept informed as to the progress of the case in court and will receive information from the Assistant District Attorney assigned to the case regarding the date and time of in court proceedings. It is not necessary that a victim or witnesses be present at arraignment or any other pre-trial hearing.
In most cases, the defendant’s attorney will file various motions raising questions of law which must be decided by the court before the trial can proceed. The judge will conduct the necessary hearings and decide the questions presented. Usually, victims and witnesses are not required to attend these, but in the event their presence becomes necessary, they will be contacted and compelled to attend.
HOW TO RELEASE AN INMATE FROM JAIL
Most inmates can obtain release from jail prior to trial by posting bail with the court through the jail. The amount of bail for each inmate depends on the number and seriousness of the inmate’s charges.
The local courts have, in many jurisdictions, set a certain dollar amount of bail which must be posted for each offense charged. Some local courts leave it to the discretion of the judge. The list of these bail amounts is called the master bond schedule. When a person is first arrested and booked into jail, his total bail is determined from the master bond schedule by adding the individual bail amounts for all charges. When the inmate later appears in court, a judge may raise or lower the inmate’s total bail amount based on factors relating to the inmate’s likelihood of returning for trial and the inmate’s risk of danger to the community.
NON-BAILABLE CHARGES: Certain charges have no bail at the magistrate level. Bail for murder, armed robbery, rape, and other serious charges such as selling or trafficking narcotics and certain child molestation offenses can only be set by a judge of the Superior Court in the county where the alleged crime occurred.
DETAINERS: Persons who have detainers (holds or outstanding warrants) placed on them by other jurisdictions cannot be released from jail until these detainers are satisfied or withdrawn. Many detainers are automatically placed by computer and you will usually be advised upon your arrest or when you attempt to make bond if another agency or jurisdiction has an outstanding detainer on you. If there is a detainer on the computer for you from another jurisdiction and it is not released, bail can still be posted if it has been set on the new charges and upon your release from the detention facility where bond is made, the inmate will then be transferred to or picked up by the other agency that has placed the detainer on you.
TYPES OF BAIL
There are several types of bond which may be posted for an inmate. These are summarized below. Jail personnel are prohibited by law from recommending specific types of bail or particular bonding companies.
COMMERCIAL BOND: A bonding company may agree to post the inmate’s entire bail for a fee set by state law at ten to fifteen percent (10-15%) of the total bail amount. The fee is not refundable. Names and telephone numbers of the local bonding companies are usually displayed in the jail lobby and inmate holding area.
PROPERTY BOND: Real property may be posted as collateral for the bail, provided that all owners are present at the jail when the bond is written and the equity in the property equals some multiple of the bond amount after the homestead exemption ($5,000.00) and all liens and encumbrances are deducted.
CASH BOND: The entire amount of the bail, plus certain non-refundable fees, may be paid in cash or approved money order to enable release from jail. In these instances, the entire amount will be refunded after the case is completed in court, less the jail fees for posting the bail in cash.
PRETRIAL SERVICES AGENCY BOND: Inmates demonstrating community ties (lengthy employment and residency requirements, for example), and satisfying certain other requirements are often allowed to make bond upon payment of a percentage of the total bond amount to The Pretrial Services Agency of the local jurisdiction.
SELF (RECOGNIZANCE) BOND: A judge having proper jurisdiction may authorize an inmate to sign his own bond in lieu of posting bail, however, unless you are the preacher of the local church, this type of bond is given rarely.
DEFENDANT’S RIGHTS
Right to a Criminal Defense Attorney
Defendants have the right to a criminal defense attorney throughout criminal proceedings. In felony and serious misdemeanor cases, the court will appoint an attorney for the defendant at no charge if they cannot afford to hire one. However, if you can afford to hire a criminal defense attorney, the court will not appoint one or, if they do, you may be required to pay all or part of their fees.
Right to a Jury Trial
On felony, DUI, and serious misdemeanor cases, defendants have a right to a speedy, public jury trial. On other misdemeanor cases, you have a right to a trial with a judge. At the trial, the defendant is presumed innocent, and cannot be convicted unless the impartial jurors are convinced of the defendant’s guilt beyond a reasonable doubt.
Right to Confront Witnesses
Defendants have a right to confront and cross-examine all witnesses testifying against them. This means the witnesses show up in court and testify. If witnesses fail to appear, the state might dismiss your case if requested by your criminal defense attorney.
Right Against Self-Incrimination
You have the right to remain silent and not incriminate yourself. You also have the right to testify on your own behalf. If you choose not to testify the court and jury cannot hold this against you.
Right to Produce Evidence
The defendant has the right to present evidence and to have the court issue a subpoena to bring into court all witnesses and evidence favorable to them, at no cost to them.