Articles Posted in CRIMINAL PROCESS

Published on:

1_lawyer_trial_faster_394255.jpgRemember Billy from Part 1? He was charged with misdemeanor marijuana possession two years ago. It was his first offense and he did not hire an attorney. He plead guilty under Georgia’s conditional discharge drug first offender law when he might have been able to take advantage of, and participate in, a pretrial diversion program. He was recently arrested again for the same offense and won’t be able to take advantage of either one. Billy’s situation illustrates the importance of people facing criminal charges to hire or consult with an attorney, especially first time offenders.

Now meet Brenda. Brenda was pulled over in Cobb County and received a ticket for driving with an expired tag and she was given a date to appear in court. Before she was able to renew her tag, she was pulled over again in Dekalb County and received the same citation. Brenda’s Dekalb Recorders Court date was prior to her required appearance in Cobb County, so she appeared in Dekalb Recorders Court and disposed of her case. Brenda made a critical error, however. Without speaking to a lawyer, she thought that since she renewed her tag and her case was closed in dekalb that she did not have to go to court in Cobb. She was very wrong.
Continue reading

Published on:

Thumbnail image for keep_calm_and_call_your_lawyer_tshirts-rd344890ffde24af8924834bf42aa6b30_8naxt_512.jpgThe importance of seeking the advice of a lawyer when you are facing a criminal offense, no matter how insignificant you think it is, can not be overstated. Not long ago i spoke with two people whose recent legal difficulties are a direct result of not hiring an attorney when they faced prior criminal offenses.

Meet Billy. Two years ago, Billy was pulled over in in Dekalb County and consented to a search of his car. The police found a small bag containing less than an ounce of marijuana and he was arrested and taken to jail. Although police officers may take it somewhat easier on you if you cooperate, my advice, generally, is that you should not consent to a search. The State is obligated to prove beyond a reasonable doubt that you are guilty using evidence that its agents (the police) find and collect. You have no obligation to help them collect the evidence. The Fourth and Fifth Amendments to the Constitution protect us against unreasonable search and seizures and self-incrimination. But once you consent to a search, all bets are off. The police can almost do whatever they want. So don’t consent to a search. Make them do their job.
Continue reading

Published on:

concert pic.jpgOther than being an international city, Atlanta is certainly one of the United States’ top five intercontinental cities. This past weekend was no exception. Between hosting the NCAA final four basketball tournament championship, the Chicago Cubs in town to play the Atlanta Braves, free concerts by the likes of The Zac Brown Band, Sting, and The Dave Matthews Band, and other fun celebratory events, thousands of Atlanta residents welcomed tens of thousands more people from all over the country to enjoy the festivities and the perfect weather. These times of the year are huge boosts to the local economy. But a lot of the money generated by these kinds of events comes from a source that most people forget. Criminal fines.

Any time Atlanta plays host to so many people doing so many different things, the many police departments within Atlanta and the surrounding Atlanta metropolitan area become especially vigilant. Officers work extra shifts and longer hours, so more officers are in more places. Police will issue hundreds upon hundreds of traffic tickets, and even more citations for other minor offenses. Police will likely make several thousand more arrests for offenses like disorderly conduct, criminal trespass, public drunkenness, minor in possession of alcohol, DUI and other alcohol related crimes; misdemeanor marijuana possession and other drug related offenses; different types of violent crimes like battery, domestic violence, assault, and possession of guns and other weapons; and theft offenses like shoplifting, fraud and identity theft.
Continue reading

Published on:

shplftngpic2.jpgWho shoplifts? That is really a rhetorical question. It doesn’t have a specific answer. The shoplifter is profile-proof. There are certainly career criminals out there, those who are simply seeking a cheap thrill (literally), and those that just decide at the last minute that they want to get something for nothing. Women shoplift. Men shoplift. Children and adults alike, rich people, poor people, nobodies and public figures are all guilty of shoplifting.

A common thread of shoplifting, however, is that it rarely has anything to do with whether or not a person can afford to pay for the merchandise. The stereotype is, of course, the daring, adrenaline junkie teenager. But more often than not the shoplifter suffers from underlying psychological stresses that they are trying to mask or alleviate. Almost invariably, if you ask someone why they did it, “i don’t know” will likely be the response you get.

It can become an addiction as strong as any other vice. Shoplifters know right from wrong. But when depression, anxiety, fears, and other stresses become overwhelming, the act of shoplifting takes their mind off of those problems, and the rush achieved from a successful “take” can be like a drug. What they do not acknowledge or admit to themselves, however, is that it only makes those negative and painful feelings worse. According the National Association for Shoplifting Prevention, about a third of the people involved in psychological studies conducted on shoplifters suffer from some form of depression.
Continue reading

Published on:

tdkrfilesjohndoe.jpgYou might be surprised to learn how easy it is for one person to have a warrant taken out for another person’s arrest. It happens all the time in theft cases; or in fraud cases, if someone passes a bad check; or in assault and battery, and domestic violence cases where police either were not called, or were called but did not discover enough evidence to make an arrest.

The procedure is relatively easy. If a person wants to take out a warrant for your arrest, all they have to do is go to the magistrate court of the county where the alleged wrongdoing took place and fill out a warrant application. The applicant provides as much information as they want to describe why they want a warrant against you. Once the application is filed, the court will send out a notice for you to appear in court before the magistrate judge. Here the applicant will have the opportunity to present whatever evidence they have to support their allegation, and you have the opportunity to defend yourself in an effort to prevent the judge from issuing the warrant.
Continue reading

Published on:

scales-justice.jpgHave you ever sat on a criminal jury? If so, you have participated in one of our most basic and fundamental civic duties. Your decision will literally impact the defendant on trial for the rest of his or her life. Did the State do its job? Is the defendant guilty beyond a reasonable doubt, or not? What if, beyond a reasonable doubt, you believe the defendant is technically guilty but you simply just do not want to vote to convict him or her? Do you have a choice? Do you have to convict this person? Are you required, obligated, and bound to convict?

The answer may surprise you.

The answer is NO. You are not required or obligated to do anything that you do not want to do. If you feel the law that you are asked to apply is unjust, you can vote to acquit the defendant even if you still believe that he or she is technically guilty.

Published on:

pleasestandby.jpgDefense attorneys hear these things all the time. Since the invention of the police drama on television, people have been led to believe that they are the ones in charge when they or someone they know is arrested. “I don’t want to press charges;” or “I want to drop the charges;” or “I was arrested but the other person wants to drop the charges;” or “I was arrested but the police didn’t read my rights to me.” When I tell people these are really just terms of art they are, invariably, disappointed. I used to feel a twinge of guilt for potentially ruining the whole genre for them. But it is a useful lesson.

“I don’t want to press charges.” This is common in domestic or family violence cases and other types of cases involving altercations or interactions (battery, property damage, thefts, frauds, etc.) between people who, once things have calmed down, feel like the whole thing was a misunderstanding and wish they could just handle it between themselves without someone being prosecuted. My answer is always the same: that’s too bad; you are not the one “pressing” the charges; and stop watching cop shows to learn how the law works.

As private citizens, we don’t have that power. The representatives, prosecutors, for the State do. Once you get the police involved and they make an arrest, the State is the only one that can decide whether or not to prosecute the case. We can certainly assist them in their decision by telling them our side of the story. But most of the time, that doesn’t matter. Their job is to prosecute the cases that the police investigate. That being said, the first seven to ten seconds of Law And Order is really the only useful part of the show.
Continue reading

Published on:

warrant.jpegIt is not an easy concept for many people to grasp. Where I think people get hung up is on the misconception and misperception that we, as defense attorneys, condone, or ignore, or tolerate, or even advocate bad behavior and law breaking. Nothing could be further from the truth. Theoretically, defense attorneys and prosecutors are on the same side. Theoretically, we are both in pursuit of the same goal, making sure the constitution is upheld, making sure justice is served, and society is made better by our efforts. Very idealistic, I know. But the theory is made more practical when we start to interact. What makes the relationship, by definition, adversarial is how we go about reaching that goal.

The fundamental question when someone (anyone) is accused of committing a crime is “if the evidence is presented to a rational fact finder, could the State prove it?” That is their job. Our job is not so much to keep them from doing so, but to make sure that, if they can, they do so in accordance with the Constitution. Violation of one person’s rights is a violation of everyone’s rights. Again, very idealistic. But it is hard to rebut, is it not? If something can happen one person, it can happen to all of us.

Take, for instance, the latest potential example of the State acting outside the boundaries of the Constitution.
Continue reading

Published on:

1327422100_img0.jpgGetting arrested for the first time probably ranks in the top five most frightening things that can happen to us. But once the initial shock wears off, it is important for people to realize that almost every jurisdiction in the state has, or with the signing of the new Georgia Crime Bill, will soon have programs designed to allow first time offenders an opportunity to prevent their arrest from haunting the rest of their lives. These are called pretrial intervention (PTI) or pretrial diversion programs. These programs literally “intervene” or “divert” away from the prosecution of a person’s case, the end result being, upon successful completion, a dismissal of the charges and an eligibility to expunge your criminal record.

These programs are generally case-specific but most, if not all, jurisdictions with these programs have a list of offenses for which they will offer a first offender PTI. But prosecutors review these instances on a case by case basis, potentially rejecting someone’s participation in a program based on the facts of the case. This can happen, for instance, in simple battery and domestic violence cases. Prosecutors often understand that people in any kind of relationship, from strangers to spouses, can have altercations. If police are called to investigate, they typically make an arrest. If the “victim” is particularly injured or other aspects of the facts are particularly egregious, a prosecutor may not feel that PTI is appropriate and other first offender options will need to be explored, such as resolving the case under Georgia’s First Offender Law.

  • What would I have to do?
  • How long does the program last?
  • How much does it cost?
  • What if I’m really not guilty of what I’m charged with? Why should I have to do anything or participate in any program?

Continue reading

Published on:

checkpoint arrestPeople fail to appear in court for a multitude of different reasons. This is one of the top five most common questions I get on a weekly basis. A Failure to Appear (FTA) in court can have potentially devastating consequences if you do not do something quickly and aggressively to remedy the issue.

Probably the most important thing to know is that when a person fails to appear in court, judges will generally issue bench warrants for a person’s arrest, and the court notifies the Georgia Department of Drivers Services (DDS) and the person’s driver’s license is suspended. Time is of the essence in these situations because the procedure from DDS notification to license suspension happens fairly quickly. Once your license is suspended, if you are thereafter pulled over for any reason, you WILL BE arrested and taken to jail. Driving on a suspended license is no laughing matter in Georgia. The minimum sentence upon conviction carries with it a five hundred dollar ($500.00) fine, two days in jail, and up to 12 months of probation. Furthermore, you will suffer an additional six-month suspension of your license. All of this on top of the offense on which you originally failed to appear. But with swift action this can possibly be avoided, or in the case where a person’s license is already suspended, steps can be taken to speed up the process leading towards license reinstatement.

FTAs never go away until a judge sets them aside with a court order. Although sometimes, in cases of FTAs in Municipal Courts on traffic violations, a person will be allowed to pay the fine on the old citation, thereby setting aside the FTA by closing the case. The court clerk will then send a “clearance letter” to the DDS. But whether undetected, unremembered, or simply just ignored, they lurk in the background of people’s lives.
Continue reading