Monday, June 13, 2011

Topic: Frequently Asked Questions - Criminal Matters

Frequently Asked Questions:
About Criminal Matters and Plea Bargains

CLICK to Jump to Visitors Questions

A Criminal Justice System Primer:

Often as folks go through the Criminal Justice System there are things that go on which are not completely explained by lawyers, and after the process is over folks find out other things they are subjected to which they were never told about beforehand. So here we are going to walk through the process (an overview) to hopefully point out some of the subtle points that lawyers never explained to defendants or their families.

When someone is charged with a criminal sex offense the prosecutor then must present a case (evidence) to prove -beyond a reasonable doubt- that the person is guilty of the offense they are charged with. The person is the Defendant and his/her lawyer must be able to present opposing evidence to prove that the Defendant is innocent of the charges.
Note: Prosecutors are notorious for over-charging defendants, with knowledge they do not have sufficient evidence to make some charge/s stick. They do this so that, later when they offer a plea bargain, part of that bargain is to drop XXX if the Defendant will plea (See type below) to XXX. Unfortunately, this is never explained very well to defendants.
Plea Bargaining: Oft times the Defendant has no real evidence to prove innocence, so their lawyer tells them to accept a Plea, if offered by the Prosecutor. The Prosecutor is not required to plea bargain a case, but in the interest of time usually does. However, once the plea bargain is accepted by the Defendant and by the court (the court does not have to accept a plea, they can reject them if the court feels some part of it is not just), then that ends all questions about the plea bargain. Prosecutors will also include a comment as to the actual sentence they are seeking, and any other terms that may be applicable.

Trial: If there is no plea bargain, then the defendant must go to trial. The trial is held either just before the judge, or with a jury. The Prosecutor and Defense lawyer make this decision based on the facts of the case. Sometimes one is better than the other, always hard to tell without the facts of the case. Defense lawyers will usually advise defendants that, if they go to trial, they are likely to get a higher sentence than if they work out a plea bargain (and this is a true statement supported by history). Judges do not take it lightly that a defendant may force the victim to testify in court, hence the defendant can expect a stiffer sentence.
Plea Types:
Guilty: Formal admission in court as to guilt of having committed criminal act charged which defendant may make if s/he does so intelligently and voluntarily. Boykin v Alabama 395 US 238;

Alford: The term "Alford Plea" has come to apply to any case in which the defendant tenders a guilty plea but denies that he or she has in fact committed the crime. The Alford plea is expressly prohibited in some states and limitedly allowed in others. In federal courts, the plea is conservatively permitted for certain defenses and under certain circumstances only. North Carolina v Alford 400 US 25;

Alford/Norgaard Pleas: Requirements for Entry. The Court of Appeals rejects the appellant’s appeal of the denial of post-conviction petition to convert a stay of execution to a stay of imposition. The original plea was entered as a Norgaard plea, in which the appellant stated she was too intoxicated to remember the events and therefore cannot attest to the elements constituting the offense. In this case of first impression, the Court of Appeals essentially equates the requirements necessary for the entry of an Alford plea to that of a Norgaard plea: a strong factual basis, and the defendant’s acknowledgment that the evidence would be sufficient for a jury to find the defendant guilty beyond a reasonable doubt. These two items should combine to provide the court with the basis to independently conclude that there is a “strong probability” that the defendant would be found guilty of the charge to which the Norgaard plea is being entered. Portrice Williams v. State of Minnesota, A07-2447 (Minn. App. 01/27/09).

Nolo Contendere: Latin phrase meaning "I will not contest." Has the effect of pleading guilty Hudson v U.S. 272 US 451. Type of plea which may be entered with leave of the court, by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed. The principle difference between guilty and nolo is that, a nolo plea may not be used against the defendant in a civil action based on the same acts.
The next step is the actual sentencing by the court. Defendants are always allowed to make a statement but many simply do not, it depends on the facts of the case and whatever advise the lawyer gave the defendant.
A sticky point usually not understood by defendants: For the most part Courts DO NOT sentence folks to the sex offender registry, instead the court may make a statement about the sex offender registry, like, "You must register according to the law." Defendants oft miss the "according to law" and think the registry is part of the punishment, but in reality it is not. With that said, we have found a few states that actually sentence a defendant to register for a period of time (more on this later).
At this point the sentence must be carried out, by the Department of Corrections (prison) or the Probation Department (Probation in the community).

The Appellate Process: If the defendant wants to appeal, anything about his/her case, they are appointed an Appellate Lawyer (AL) who prepares the appeal. The AL reviews all lower court documents and transcripts and suggests grounds for the appeal, if they can find them. This appeal must be done and filed within TIME LIMITS set by the state's court rules. All issues must be included in the appeal or they will be considered WAIVED. Any issue not preserved during the lower court process, cannot be first raised on appeal. The appeal if filed and folks wait for the upper court to decide.

This ends the criminal justice system process, defendants must live with the decisions made during the above processes.

Visitors Questions and Answers:

Effectively, questions such as those that follow are foreclosed, if not raised and preserved during the above processes, and there is nothing that can be done, without some change in law, court rules or case law. The Defendant must live with whatever consequences that flow from the above processes:
  • Can't I change or withdraw my plea? Unless there is proof of wrongdoing it is impossible to change or withdraw a plea accepted by the court.
  • I took a plea because I was assured that a conviction would NOT require sex offender registration (or was told registration would only be for XXX years). Now I'm being told it is for XXX years, and that has again been extended by the state. Nothing with respect to sex offender registration is under the control of the sentencing court, no relief is possible in the sentencing court.
  • Can't I go back to court to get relief? Going back to court, if at all possible, is very dangerous because you might get a different judge (if the first one is no longer there) and s/he might feel different about the case and ultimately sentence you to something worse than you now are. We would never suggest doing this unless you have talked to a lawyer, and they agree with the grounds for going back to court. Even then it is a very risky process.
  • My lawyer was ineffective?" This would have to be raised during the appeal, and proved.
  • I didn't get a fair trial! This would have to be raised during the appeal, and proved..
  • I didn't commit a crime. My lawyer said I had a choice of a plea or facing an unsympathic judge or jury, and get huge amounts of prison time. Can't I get it changed? Again, this would have to be raised during the appeal and proved, a very difficult and costly task, if you have any evidence.
I am sure there are many other questions folks might ask, but in reality, the criminal justice process is governed by law and court rules which the court will not bend. If you can find a way to get something past those, then speak to a lawyer as they may know what to do.
The day after I wrote the above comes this case: "Court rules NJ man who killed Megan's Law namesake can continue appeal on some issues" so with that in mind, never give up hope and watch for changes in law or court rules. In Timmendequas's case the death penalty was eliminated and his other appeal issues, foreclosed before it was repealed, are now viable, but I seriously doubt he will see any change in his life without parole sentence. A proper sentence for his crime.
For now, have a great day and a better tomorrow.
eAdvocate (BACK to the Top Page)

No comments: