BREHM'S BLOG

BREHM’S BLOG I

FIVE COMMON MISCONCEPTIONS ABOUT

CRIMINAL DEFENSE

          As a criminal defense attorney, I have consulted with thousands of people regarding their pending criminal or traffic cases. Over the years I have encountered common erroneous beliefs people have about the system. These erroneous beliefs are not a function of ignorance or foolishness, but rather largely stems from the portrayal of the court system by television shows and movies. Here are five of them:

It’s all pretty much cut and dried

            Occasionally, I will speak with a prospective client about a charge or situation they are addressing. Often, the conversation will be prefaced by a comment by the client along the lines of “I am not sure I need an attorney. It is all pretty much cut and dried.” Is this really true? In some cases that may well be true. However, often it is not. What actually has to proven by the prosecutor and can it be proven? What is at stake? How serious is the charge? How is it going to affect your employment? How is it going to affect your driving privileges? Is it better to resolve the case for one consequence rather than another? Which judge is assigned? Who is the prosecutor? What is normally done in the jurisdiction in this situation?

            The more at stake, the more important it is to take any criminal or traffic charge seriously. Most cases are resolved pursuant to plea agreements. The plea bargaining process allows the parties to strike a balance between the best and worst case scenarios of any given case. Consultation with an honest and knowledgeable attorney can allow a person to reach the best decision for them, not necessarily what is best for the attorney.

I can’t be convicted because they didn’t read me my rights

            This is a very common misconception by the general public. A person may believe that because a police officer did not read him or her Miranda rights, that that will make it difficult or impossible for the prosecutor to prove their case. My response to such a person’s statement that “they didn’t read me my rights” must be “and?” The reason the response is “and” is because the issue cannot be analyzed in a vacuum. The remedy for the failure to read Miranda rights is the suppression of incriminating statements. This could have a huge impact on the State’s ability to prove a case. However, in order for Miranda to apply, the suspect normally has to be in custody and subject to interrogation by a law enforcement officer. Whether someone is in custody or subject to interrogation can be determined by applying the facts to applicable law. A motion to suppress would be brought before the trial court to determine whether the incriminating statement is admissible. If the court determines the statement is inadmissible, it is possible for the statement to still be admissible if the defendant testifies. It may be that suppression of a statement would have no impact on the case, especially if there is other strong, admissible evidence against a defendant. This is one of many issues that can come up in any criminal case.

I can’t be convicted of bail jumping because …

            Bail jumping is an offense that encompasses more conduct than the name implies. You can commit bail jumping by fleeing the jurisdiction instead of appearing in court. This was probably in the initial intent of the law. However, the offense of bail jumping has expanded greatly since then. When you are arrested and charged with an offense, bond is set. Sometimes a cash bail is set. You have to sign a bond. The bond is your promise to follow the conditions of bond while the case is pending. The conditions usually are that you not commit any new crimes, that you appear in court and that you notify the clerk of court within 48 hours of a change of address. Other specific conditions may be set. Do not possess a weapon. Do not consume alcohol or other drugs. Do not have contact with the victim. If you intentionally violate the conditions of bond, you can be charged with bail jumping, either a misdemeanor if the offense for which you were on bond was a misdemeanor, or a felony if the offense for which you were on bond was a felony. Bail jumping charges are often easy to prove and can allow the state to obtain leverage against a defendant in plea negotiations.

            There are actually two very common misconceptions that occur related to bail jumping. One of the most common things I have experienced over the years is the defendant complaining that he or she did not receive notice because his or her address changed, meaning he or she cannot be charged with bail jumping. That sounds like a reasonable explanation. Except, there was almost certainly a condition of bond that said the person was supposed to notify the court of a change of address within 48 hours. Since, that was not done within 48 hours, the person violated that condition of bond. In many counties, an employee of the clerk of court’s office will go through the conditions of bond with the defendant right after bond is set to prevent this type of misunderstanding.  Again, this can often lead to a violation of bond that is easy to prove by the State.

            The second common misconception related to bail jumping is a little more complicated to explain. Let’s assume for example, a defendant is arrested and charged with a burglary. The defendant is placed on felony bond with conditions including that he or she not commit a new crime. Let’s further assume the burglary charge is very weak. The burglary victim actually gave the defendant permission to stay at the residence!  While defendant is awaiting trial for burglary, defendant now gets caught possessing a small amount of cocaine and is charged with misdemeanor possession of cocaine and felony bail jumping because the defendant committed the crime of possession of cocaine while on felony bond. The defendant comes up with a strategy. I will go to trial and win on the burglary first! If I am acquitted on burglary, I cannot be convicted of felony bail jumping!  Sounds reasonable. Unfortunately, that is not the law. The crime of felony bail jumping in this case has little to do with whether the defendant actually committed the burglary. The offense of bail jumping is the failure to comply with the conditions of bond, not being convicted of burglary and violating the conditions of bond.

I can’t lose my gun ownership privileges if I am not convicted of a felony

            Most people know a direct consequence of being convicted of a felony is the loss of your right to own or possess a firearm for the rest of your life. When a defendant is convicted of a felony, the court usually notifies him or her of that consequence. But that is not the only way a person loses their right to own or possess a firearm in the criminal justice system.

            You can lose your right to own or possess a firearm under federal law upon conviction for a misdemeanor criminal conviction of domestic violence. What is a crime of domestic violence? Under federal law, it would include an offense involving the infliction of bodily harm or a threat to do. Almost any domestic offense charged against a person is going to meet that definition. A husband violently grabs his wife’s arm during an argument could be enough. To be a domestic incident, the parties do not have to be married. They can be from the same family.

The defendant may not become aware of this loss of right until he or she goes to buy and gun years later and a background check uncovers the conviction. This body of law is extremely complicated. There are often ways to avoid this permanent loss of right. One, if the charge is amended to an ordinance, the federal law does not apply. Two, if the charge is amended to a nondomestic criminal offense, the federal law may not apply. A defense attorney must be aware of the nuances in the law, especially for those clients who value the right to own or possess firearms.

I heard a guy with the exact same charges got a very light sentence

            Strange things happen in the criminal justice system. A person convicted of sexual assault may get no jail time. A person who commits a fifth offense operating while intoxicated offense may not go to jail. A person who commits a violent domestic offense may only be convicted of a misdemeanor. The criminal justice system is far from perfect. But it is a necessary vehicle for an orderly society. It is constantly changing, often for the better.

            Often, a client will bring me one of the examples above. He or she heard of a guy who got convicted of a fifth offense operating while intoxicated offense and was not sentenced to jail. Could that happen? Absolutely. While not a common occurrence, a prosecutor may not have been aware the other four convictions when the offense was settled. Does that mean it is likely to happen often? Obviously not. Such an occurrence is exceedingly rare. If a criminal defendant is charged with a fifth offense, and the prosecutor is aware of the prior four convictions, it probably is not going to happen.

            Or, a client facing a serious charge may tell me he or she heard that another defendant facing the exact charge had their charge dismissed. There is usually more to the story. Maybe the serious charge was dismissed because the defendant pleaded to other serious charges for an agree-upon disposition. Maybe the victim died or moved away. Maybe the information received by the client about the other defendant is unreliable or incomplete. There can be many, many reasons why a serious criminal charge was dismissed.     

            Case law is replete with examples where seemingly similarly situated criminal defendant got vastly different sentences. How can that be?  Because no two criminal defendants facing sentencing are exactly the same. A judge imposing sentence is allowed to determine the appropriate sentence after consider many relevant factors. Each judge has their own unique view of what the law is and what the law should be. Each has their own personality, their own pet peeves and their own view of “justice.” Two judges may impose vastly different sentences for the same crime.

DISCLAIMER: THIS BLOG IS NOT INTENDED AS LEGAL ADVICE IN ANY GIVEN CASE. A PERSON FACING CRIMINAL CHARGES SHOULD ALWAYS CONSULT WITH AN ATTORNEY TO DISCUSS ANY ISSUES RELEVANT TO THEIR CASE.