Buying Justice: Myth Or Reality?

Who stands a better chance of walking out of a courtroom free and clear of all criminal charges? Is it the rich businessman and his team of high-priced attorneys? Or, is it the average Joe, a hardworking ditch-digger who barely gets by earning minimum wage and is represented by an overworked, underpaid court-appointed attorney who’s fresh out of law school?

I think it’s safe to say the answer to that question is, well … it goes without saying.

I’m sure you’ve all heard of the latest high-profile case where a young man of more than substantial means, while driving drunk, crashed and killed four people. His family hired a couple of “big name” attorneys, and when the dust settled the defendant skated out of the courtroom with a sentence of probation. His defense had been that he was raised in the midst of extreme wealth and riches and had never been disciplined for doing wrong. As a result of living in those “horrible” conditions he suffered from affluenza, meaning that he couldn’t/didn’t know any better. Apparently, affluenza renders some folks totally and utterly stupid beyond all definitions of the word.

At least, though, the young man’s attorneys managed to come up with a defense that has a name attached to it. But what about the wealthy one-percenters who never seem to serve any real time for their crimes? How do they manage to avoid the orange jump suits and sharing a 6×9 concrete and steel room with roaches and rats? Has it always been this way, where the well-connected enjoy a different standard of justice than do folks of meager means?

Let’s begin our exploration on a small scale—the wannabe big fish in a tiny pond. You know, the upper crust of small town U.S.A.

There was a deputy who’d decided to come in off patrol to catch up on a bit of paperwork. He parked in front of the jail and, after that unseen person buzzed him through the gates, he headed upstairs to a private office area where several deputies shared a bank of desks and a few typewriters.

As he made his way up the steps he heard someone clacking away at one of the old Royals. He thought it was odd to hear someone hard at work in the office because he hadn’t seen any other patrol cars parked outside. When he turned the doorknob and pushed the door open, he was quite surprised to see a young man, a non-employee civilian, sitting behind one of the army-green metal desks. The stranger looked up from his typing and, without so much as a “kiss my tail feathers,” he went back to pecking the keys. To top off the bizarre situation, a tiny fluffy dog that resembled a small sheep was seated in his lap, licking the remnants of a bright red lollipop.

Yeah, I know.

The deputy placed his folders and other do-dads on one of the other desks, and said, “Excuse me.”

The interloper stopped typing and looked up. He was obviously irritated that the lowly deputy had the gall to bother him.

The deputy continued. “Did someone give you permission to be in here?” The deputy was concerned because their lockers, which contained evidence, firearms, chemical sprays, and other police goodies, were also in the room.

The little snob said, “Yeah … they did.” He went back to work.

“Who?” the deputy asked.

“Who, what?” was the kid’s snotty reply to him, without bothering to stop punching the keys and dinging the bell.

The officer had heard and seen enough, so he placed his hand over the typebars and said, “Who gave you permission to be in this room using our typewriters?”

“My daddy told the sheriff to let me do my homework in here, and he TOLD the sheriff I was not to be interrupted.”

“And your daddy is … ?”

“Judge So and So. You may have heard of him.”

Well, after checking his story it turned out that Mr. Typewriter was indeed the high-court judge’s son, and the little darlin’ had been convicted of manslaughter in another jurisdiction (driving drunk and crashed into a car, killing the elderly couple inside).

His father, the judge, pulled some strings and arranged it so that his baby boy—a grown man attending college—could serve his sentence in this particular jail. The judge had also worked a deal with the sheriff to allow the kid to remain outside of the cell blocks until lights out. He was also to be allowed to hang out in the employee break room, watch TV, enjoy meals delivered to him from the outside, wear street clothes, and to use the desks and typewriters normally reserved for deputies to complete his papers and other projects for the college he attended (assignments and notes were also delivered to him). Deputies were not to disturb the judge’s son while he was using their typewriters and their desks.

In another instance, a wealthy businessman was arrested for his 4th DUI and was subsequently sentenced to a whopping 30 days in the county jail. This man was one of the county sheriff’s golfing and drinking buddies.

You can imagine how this went.

During his “incarceration,” the man was allowed to wear his street clothes. He was also allowed to wear a gold bracelet, watch, and a gold chain around his neck that was nearly large enough to use as an anchor chain on a battleship.

It didn’t stop there.

Jailers were instructed that this man’s cell door was to remain unlocked and open at all times. Jail cooks were mandated to prepare made-to-order meals for him (he sent his selections to the kitchen via the on-duty jailers). He received a daily newspaper. He used the phone anytime day or night. He received visitors anytime day or night. He was allowed to run his business from the jail. He roamed the halls and corridors normally patrolled by jail staff. And, he was even allowed to use the jail conference room for business meetings!

A first time offender was arrested by an FBI agent for possessing less than $100 worth of crack cocaine. Thousands upon thousands upon thousands of dollars were poured into the investigation—search warrants, canines, dozens of officers, agents, state police, prosecution team, etc. All for less than $100 worth of crack cocaine. That’s it. That’s all they found and that was the defendant’s only charge.

The FBI and federal prosecutors threatened to lock up the man’s family (as accomplices: they weren’t). Officials threatened the man with a sentence of 10 years or more. And they threatened to seize his home and all of his possessions, leaving his family with absolutely nothing.

However, the officials offered a five year sentence if the man pleaded guilty.

The defendant hired a very prominent attorney to represent him … for a base fee of $25,000. Shortly after, the attorney came to the man (who was in jail under NO BOND) and said the plea deal he’d negotiated was for just over three years in federal prison. The attorney, by the way, placed a lien on his client’s home for the $25,000, and he’d done so the moment he was retained. The defendant had no access to any funds other than the equity in his home.

The attorney, in the same conversation, said he could probably have the sentence reduced to probation or home confinement if the defendant could somehow find another $25,000.

So, what are your thoughts? Is there a special justice system for the wealthy “one-percenters”? Are harsher sentences handed down to the average Joe’s and Jane’s in this country? How about the poor? Do they stand a chance against the courts and powerful prosecutors? Do some prosecutors, such as U.S. Attorneys, routinely step on the “little people,” chalking up big conviction numbers to further their personal career goals—like an appointment as the head of the FBI, etc.?

Can money truly buy freedom?

Sadly, I think I’ve seen enough over the years to say yes, in some cases it can.

Right to Trial by Judge or Jury … and Marilyn Mosby

 

Marilyn Mosby is the Maryland prosecutor who elected to prosecute the six officers involved in a case that resulted in the death of Freddie gray, a suspect who was in their custody at the time of his unfortunate demise. Mosby failed to receive a conviction in either of the first four cases and on Monday, dropped the remaining charges against the rest of the officers awaiting trial.

Mosby, obviously frustrated because the officers chose to have their cases heard by a judge rather than a jury, said she wants to pursue greater prosecutorial power over whether a defendant can choose a bench trial over a jury trial. In short, she wants this particular and extremely important right taken away from all defendants, further stacking the deck against them as they face incarceration and other punishments that include the loss of even more rights.

“I have a number of ideas that I’m not yet going to talk about,” Mosby said. “I have it all written out. I have it all planned.”

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One of the purposes of affording the option of trial type is to allow a defendant to have his/her case heard by a judge rather than a jury whose opinions may be swayed by emotions and public statements made prior to start of the courtroom proceedings. A great example of possible jury tainting is the case in question, the trials of the officers accused of murdering Freddie Gray.

A local jury pool most likely saw and heard Ms. Mosby’s emotionally-charged speech announcing the charges against the officers (depraved heart murder—a deliberate act that is so dangerous that it shows total indifference to someone else’s life, murder, and manslaughter, among others). She concluded her lengthy oration with, “… to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let’s insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and as young people, our time is now.”

Many have considered Mosby’s dramatic speech as a one offered by an angry political activist rather than that of a unbiased prosecutor.

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Potential jurors likely witnessed her appearances on national TV, in magazines, and on the stage with Prince at a concert that was billed as a Rally4Peace, an event in honor of Freddie Gray, the victim in the case. Not to mention that she’s married to City Councilman Nick Mosby, whose district includes the area where the Gray incident and much of the recent Baltimore rioting took place. She’s also friends with Gray family lawyer Billy Murphy. Murphy helped with Mosby’s campaign fund-raising.

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So yes, the defendants in the case had just cause to fear the jury pool would be stacked against them. Therefore, as is their right, they opted to have their cases heard by a judge, an option Mosby wants to change.

I’ve included the below text, especially for Maryland prosecutor Marilyn Mosby, in the event this page is missing from the law books in her office. Please note the red text below.

Seriously (I suppose Ms. Mosby is at least aware of the law), I highlighted the line in red so to make it stand out to help those who aren’t aware that this indeed is the law. The right to trial by judge, or jury, is not a suggestion or something that can be instantly altered simply because someone doesn’t like it, or because the results produced by it are not favorable to an attorney involved in a court proceeding.

 

RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

West’s Annotated Code of Maryland

Maryland Rules

West’s Annotated Code of Maryland

Maryland Rules (Refs & Annos)

Title 4. Criminal Causes

Chapter 200. Pretrial Procedures (Refs & Annos)
MD Rules, Rule 4-246
RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

(a) Generally. In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. The State does not have the right to elect a trial by jury.

(b) Procedure for Acceptance of Waiver. A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily.
Committee note: Although the law does not require the court to use a specific form of inquiry in determining whether a defendant’s waiver of a jury trial is knowing and voluntary, the record must demonstrate an intentional relinquishment of a known right. What questions must be asked will depend upon the facts and circumstances of the particular case.
In determining whether a waiver is knowing, the court should seek to ensure that the defendant understands that: (1) the defendant has the right to a trial by jury; (2) unless the defendant waives a trial by jury, the case will be tried by a jury; (3) a jury consists of 12 individuals who reside in the county where the court is sitting, selected at random from a list that includes registered voters, licensed drivers, and holders of identification cards issued by the Motor Vehicle Administration, seated as jurors at the conclusion of a selection process in which the defendant, the defendant’s attorney, and the State participate; (4) all 12 jurors must agree on whether the defendant is guilty or not guilty and may only convict upon proof beyond a reasonable doubt; (5) if the jury is unable to reach a unanimous decision, a mistrial will be declared and the State will then have the option of retrying the defendant; and (6) if the defendant waives a jury trial, the court will not permit the defendant to change the election unless the court finds good cause to permit the change.
In determining whether a waiver is voluntary, the court should consider the defendant’s responses to questions such as: (1) Are you making this decision of your own free will? (2) Has anyone offered or promised you anything in exchange for giving up your right to a jury trial? (3) Has anyone threatened or coerced you in any way regarding your decision? and (4) Are you presently under the influence of any medications, drugs, or alcohol?
Cross reference: See Kang v. State, 393 Md. 97 (2006) and Abeokuto v. State, 391 Md. 289 (2006).
(c) Withdrawal of a Waiver. After accepting a waiver of jury trial, the court may permit the defendant to withdraw the waiver only on motion made before trial and for good cause shown. In determining whether to allow a withdrawal of the waiver, the court may consider the extent, if any, to which trial would be delayed by the withdrawal.
Source: This Rule is derived from former Rule 735.
*As always, please … no arguments about gun control, police-bashing, protestors, political rants and raves, bashing of political candidates, religion, race, and, well, the usual. Oh, and please do save the bad language for other pages. We have kids who visit this page and I’d like to keep the site as kid-friendly as possible. Besides, I’m extremely weary of seeing and hearing the “F” word. But that’s just me. Thanks!

New DOJ Guidelines: It’s Called Forensic Science, NOT Forensic Opinion

 

Well, it actually happened. I’ve lived long enough to say I’ve seen it all when it comes to our government controlling what people may or may not do and say.

The federal muzzling, if the plan moves forward, and we all know it will if they want it to, includes what experts are allowed to say when testifying in court. Or, more importantly, what they’re not permitted to say during those legal proceedings.

The Department of Justice recently spent a ton of time and resources to draft a guidance regarding courtroom testimony of government experts, such as those folks employed by the three-letter agencies—FBI, etc.

But…

At first glance, this sounds a bit over the top and perhaps a trampling of free speech. However, when it comes to sending innocent people to prison based on the mere opinion, not scientific proof, of a technician in the employ of a law enforcement agency, well, this idea may not be such a bad thing after all.

Remember, when experts exaggerated the fortitude of hair and bite mark evidence? It was, after all, their testimony that, for decades, led to the convictions and imprisonment of several people who were later exonerated and released.

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Ray Krone was exonerated after spending 10 1/2 years in prison. Three of those years were served on death row. Ray’s conviction was based on faulty bite-mark evidence.

Click the link to read more about Ray’s incredible story.

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Here are only a few of the new DOJ proposed guidelines…the things experts may NOT say when testifying in criminal and civil proceedings.

Examiners/technicians/scientists may NOT:

  • state the dose of a drug or poison based on analytical findings in post-mortem samples.
  • state an opinion that a drug or poison finding in hair is proof of ingestion of the drug or poison unless a metabolite that is unique to ingestion is also identified…
  • state an opinion that an individual was impaired based on a drug concentration in a urine or hair sample.
  • state or imply that the methods used in performing serological examinations have error rates of zero or that they are infallible.
  • state or imply that two friction ridge prints originated from the same source to the absolute exclusion of all other sources.
  • state that a shoe/tire is the source of a questioned impression to the exclusion of all other shoes/tires because all other shoes/tires have not been examined.
  • state or imply that a fiber came from a particular source to the exclusion of all other sources.

Remember, this is only a small sampling of the things experts may NOT say in court. Believe me, the list is long and there are more on the way. This sort of makes one wonder if, in the future, there’ll be a need to call experts to the stand.

What do you think? Should experts be allowed to offer their opinions based on scientific findings, even if it means an innocent person, such as Ray Krone, could wind up on death row?

Should you wish to express your views about these proposed guidelines, you may do so directly to the Department of Justice by clicking HERE.

*Source – DOJ, PROPOSED LANGUAGE REGARDING EXPERT TESTIMONY AND LAB REPORTS IN FORENSIC SCIENCE

What is a Grand Jury?

What is a Grand Jury?

 

Basically, a grand jury’s function is to control the start of prosecutions for felony cases. In 1215, the grand jury was established to keep a tight reign on the king, preventing the possible despotic abuse of his powers against the citizens.

Each state has its own laws, rules, and regulations regarding court systems. However, the goal and end results are the same…to provide a fair trial to the accused. For the purpose of this article, though, we’re speaking of Grand Juries in the Commonwealth of Virgina, simply because that’s familiar to me. However, the process is basically the same in the areas/states using the Grand Jury system.

In Virginia, criminal court proceeding normally begin with an arrest, usually by warrant, which is a formal, written accusation stating that the person named has committed a crime.

– Crimes are divided into two classes—misdemeanors and felonies. A misdemeanor is punishable by a sentence of up to 12 months in jail and/or a monetary fine. Felonies, the more serious of the two crime classifications, are punishable by confinement in the state penitentiary (remember, we’re only talking about state and local courts, not federal offenses).

– Offenders arrested for misdemeanor offenses are brought to trial in District Court (lower court), where he/she is tried before the district judge. There is no jury in District Court. The district judge hears the case and makes one of two decisions—not guilty, which results in dismissal of charges, or guilty, which results in imposition of sentence.

A District Court judge has no authority to try felony cases, only misdemeanors and traffic cases.

If the accused is charged with a felony offense, he makes his first court appearance in the lower court where a district judge conducts a preliminary/probable cause hearing to determine whether or not enough evidence exists to try the case.

Both the prosecutor and defense present evidence during preliminary hearings. Keep in mind, though, these hearings are not trials, therefore not all evidence is presented, nor are all witnesses or experts called on to testify.

If the district/lower court judge finds that a felony has been committed, along the necessary evidence to back it up, then he/she sends the case to Circuit Court (high court) for trial. Sending a case to the higher court is called “certifying” the case (Judge I. R. Mean certified the case against Ima Crook).

– Once a case has been certified it goes to the Regular Grand Jury, whose duty is to once again determine whether or not there is probable cause to believe the person has indeed committed a felony. The defendant may or may not be released on bail while waiting for the Circuit Court trial to begin.

After a case has been certified to the Circuit Court (the high court), the prosecutor (Commonwealth’s Attorney in Va.) prepares a “bill of indictment,” which is a formal document accusing the defendant of the felony.

Prosecutors may elect to bypass the lower court entirely by bringing the case/bill of indictment straight to the Grand Jury. This step can be done in secret to avoid “tipping off” the accused. This is often done in major cases involving multiple offenders, such as drug dealers, child porn operations, etc. When the indictments are “handed down” police officers begin rounding up the accused criminals. These arrests are often carried out simultaneously in large multi-jurisdictional/agency sweeps. Again, this is done to avoid tipping off co-defendants/conspirators.

Following an indictment and subsequent arrest, the accused is arraigned—charges are formally read and the accused enters a plea of guilty, not guilty, or nolo contendere (no contest).

Grand Jurors are selected randomly (voter registrations, DMV, etc.) by the clerk of the court and are summoned to appear by the sheriff (serving jury summons is one of the duties of a sheriff, but not a responsibility of a chief of police). In Virginia, Grand Jurors serve, as needed, for a term of six months (they do not meet every day, or even every month). The Grand Jury consists of 5-9 jurors.

Before the Grand Jury begin their duties, the judge reads a list of instructions of their official duties and rules. This reading of instructions is called “Charging the Grand Jury.”

The Grand Jury’s purpose is to determine whether or not there is sufficient probable cause to try the accused for the crime in question. The Grand Jury does not determine guilt or innocence.

Grand Juries normally meet in a jury room, not in open court.

Once in the jury room, the members of the Grand Jury begin hearing testimony from witnesses. Witnesses are called one at a time and are questioned by the members. No attorneys and no judge. And, only witnesses for the prosecution are called before the Grand Jury. The defense is not permitted to present their case at this time.

When all testimony is heard, the Jury then votes. If four or more Jury members vote yes, then it has been decided that they will issue a “true bill,” meaning enough evidence/probable cause exists to proceed with the trial. A vote of “not a true bill,” means the jury did not find an ample amount of probable cause to proceed with a trial at that particular time. However, it is rare to see a Grand Jury return a “not a true bill” finding since all witnesses are prosecution witnesses.

– Grand Jury proceedings are held in secret.

*Remember, rules and regulations governing Grand Juries vary from one state to another. Also, please remember that the above information is basic. There are, as always, exceptions.

 

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Plea Bargains: Voluntary, or Legal Coercion?

Plea Bargains

 

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that the accused will have the assistance of counsel and may be convicted only if an impartial jury of his peers unanimously determines that he is guilty beyond a reasonable doubt.

So what about plea bargains? There’s no judge or jury involved in that process. Instead, a plea agreement is reached when both the prosecutor and defense sit down and hammer out a really good deal for both sides, right? Well, not quite.

A plea bargain is about as one-sided as it gets, and the side that wins nearly every single time is that of the prosecution. In fact, less than 3% of all federal criminal cases make it to trial. This translates into a whopping 97% of all federal cases being decided by a plea bargain. And, it is the prosecutor who decides how much time the defendant will serve behind bars, not a judge or jury of anyone’s peers.

The defense is at a huge disadvantage at the onset of the process because prosecutors hold all the cards—secret grand jury testimony and evidence, crime scene evidence and lab test results, witness statements, and the authority to charge the accused with the most severe offense he believes he can prove…UNLESS the defendant agrees to plead GUILTY in exchange for a charge of a lessor offense, which would result in serving far less time in prison than had he been found guilty of the more severe charge. In many, if not most cases, “far less time” could be a decade or even more.

The way a federal plea bargain works, in short, is like this.

1. Police conduct an investigation and hand over their collected information and evidence to a prosecutor.

2. The prosecutor presents his/her case to the Grand Jury who almost always issues a “true bill,” meaning there is enough evidence/probable cause to proceed with the trial. After all, the only people testifying before them are witnesses for the prosecution. The defense is not a part of the Grand Jury process.

3. The suspect is arrested and incarcerated. A favorite prosecution trick is to have agents/officers make the arrest on a Friday afternoon. This is so the suspect will have to sit in jail throughout the entire weekend, until judges/magistrates return to the bench on the following Monday to hold/conduct a bond hearing (holiday weekends are a bonus because courts are also closed on Mondays). This provides the defendant a bit of eye-opening time behind bars before having an attorney appointed to their case. When Monday morning finally rolls around, many defendants are willing to do or say almost anything to return home, including agreeing to a quick plea deal.

4. Bond is either set or denied.

5. Prosecutor and defense attorney meet either in person or by phone.

6. Prosecutor offers a deal—a lessor charge if the defendant agrees to plead guilty, or face the top charge possible, along with the standard obstruction of justice for not accepting responsibility (not pleading guilty) with as much time in prison as the law allows. Obstruction, by the way, could result in an additional sentence of ten years. And that’s on top of the time for the original charge.

7. Defense attorney presents the “deal” to his client—either plead guilty to the lessor charge and serve time in federal prison for ONLY three years, for example, or refuse the deal and face the possibility of being found guilty anyway, but receive a sentence of twenty years in prison. And, this deal is open for discussion only at that moment. There’s very little time given to consider it. It’s either now or never in most cases. Of course, prosecutors will most likely accept a deal at a later time to avoid taking the case to trial, but the first offer is always the best offer. The longer the wait the more time the defendant will have to serve in prison.

8. The deal is almost always accepted. As I stated earlier, this is so in approximately 97% of all federal criminal cases, including deal acceptance by defendants who are innocent of the crimes for which they’re charged. These folks plead guilty because they’d rather agree to a shorter time in prison rather than face decades behind bars, or, in some cases, the possibility of receiving the death penalty…for a crime they didn’t commit.

In 2012, the average sentence for drug offenders (in federal court) who agreed to plea deals was five years and four months. Defendants who rolled the dice and went to trial were sentenced to an average of sixteen years. It’s a “no-brainer” decision and prosecutors know it and they rely on it. And, a plea deal typically includes a “no appeal” stipulation.

A fair and voluntary system? What do you think? Before you answer, consider this. Of the 2.2 million people in American prisons, over 2 million of those individuals are there as a result of a plea bargain devised by a prosecutor who also determined the amount of time the defendant was to serve behind bars. No jury. No judge. All prosecutor.

Some have said “having our day in court” is a thing of the past. What about you? Do you agree with the current method of plea bargaining?

 

 

Judge Bill Hopkins: When Bail, Bond, and Divorce Make Me Growl

Judge: Bill Hopkins

 

As a sitting judge on a general trial court for twenty years, I ran across many things that made me wonder if anyone knew anything about the law. There is, of course, no secret that lawyers and their co-conspirators in all levels of government work daily and diligently to make the law incomprehensible. (CPAs are also guilty, but that’s another blog post.) So if we lawyers make things difficult, we shouldn’t complain when people don’t understand it, right? Wrong.

Here are but three of many things that make me growl.

(1) “A divorce (or dissolution of marriage or whatever your state calls it) is not a lawsuit.”

This one baffles me. Once I was speaking to a non-lawyer and I said, “John sued Mary for divorce.” The fellow answered, “No, he didn’t sue her. He filed a divorce. That’s different.”

If you are married and you do not want to be married, the only legal way I know of to accomplish that is to file a lawsuit asking the court to unhitch you. You must file a petition (or complaint or whatever your state calls it) and the court that hears divorce cases. That makes you the plaintiff (or petitioner or whatever your state calls it). The other party to the lawsuit (your soon to be ex-spouse) is called the defendant (or respondent or whatever your state calls it).

In some states, if you’ve agreed on everything, you can file a notice of settlement and some judge will sign a judgment, declaring you and your sweetie to no longer be married.

If you can’t agree, there could be a knock-down, drag-out courtroom battle that concerns everything from child custody to who gets the matched salt-and-pepper shakers from Hawaii.

That, my friends, is a real lawsuit, the same as if it was Standard Oil and the EPA.

(Note: I heard a divorce case where two judges were getting a divorce. They couldn’t agree on the disposition of a manure spreader. [Insert manure spreader joke here.] I decided it for them and they haven’t complained since.)

(2) “If you have a will, you don’t need to go through probate court.”

As far as I know, there is no such thing as an automatic will anywhere in any state or territory of the United States. (Correct me if I’m wrong. I’d love to see how that works! And, keep reading.)

When you die, there are two ways your stuff (if you have any stuff leftover from paying taxes all your life) is split one of two ways: You have a will or the government decides where your stuff goes.

This one I shouldn’t get too upset about because of the growing prevalence of trusts and other non-probate transfers of property. Such things keep you away from the probate division of the court to some degree or the other (depending on your state).

Free legal advice: Go to a competent—meaning you’ve done your research on the person—estate planning lawyer. Get a financial power of attorney, a healthcare power of attorney, a will, a trust, and advice on how transfer/pay on death works in your state. This can save you a lot of money and heartache. If you don’t care where your stuff goes and you don’t care if you have heartache and grief, then don’t do anything or use forms you found on the Internet.

And there’s no “reading of the will” except on soap operas. In fact, after you make out all your estate-planning documents, you should give photocopies to your potential heirs—you don’t have heirs until you die—and make sure they know how to get to your safe place after you pass. Protect your valuable documents from fire, flood, wind, earthquake, and critters (four- and two-legged).

(3) “Bail and bond mean the same thing.”

BAIL is generally how much the judge wants before you get out of jail and BOND is generally how the bail is made. Don’t ever expect journalists to get this right. And judges and lawyers often confuse it also.

The best way to knock this one flat is to give you three scenarios.

ONE: Danny Defendant has been arrested for a felony and the judge says, “You’ve always shown up in the past when you’ve been arrested so I’ll let you out on your own recognizance and we’ll take your word for it that you’ll be back for your trial.” This is a recognizance bond (or signature bond or whatever your state calls it).

TWO: Danny Defendant has been arrested for a felony and the judge says, “$10,000 cash only bail.” Danny’s decrepit grandmother who barely scrapes by on Social Security, sells her great-grandmother’s diamond ring and forks over $10,000 in cash to the court and gets a receipt made in Danny Defendant’s name. When he shows up, she gets the dough back. If he doesn’t show up, the government keeps the money. This is cash bond (or whatever your state calls it).

THREE: Danny Defendant has been arrested for a felony and the judge says, “$10,000 bail.” Chico leaves the Little League game he’s sponsoring and hustles down to the jail. Chico sells Danny a bail bond for $1000 which is paid for by Danny’s decrepit grandmother who gets a receipt made out in Danny’s name. If Danny shows up when the court tells him to, then the bond is cancelled. If Danny does not show up when the court tells him to, the bond is forfeited and Chico sues the decrepit Grandma for all she’s worth since Danny is gone. This is a bail bond (or whatever your state calls it).

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After two decades on the bench, Bill Hopkins captures readers with his Judge Rosswell Carew murder mysteries. How does a judge manage to wrangle his way into investigating so many crimes? And can he do it without crossing into the dark side himself? Find out by reading the complete series beginning with Courting Murder, followed by River Mourn and Bloody Earth.

Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, Romance Writers of America, and Sisters In Crime. Bill is also a photographer who has sold work in the United States, Canada, and Europe. He and his wife, Sharon (also a published writer), live in Marble Hill, Missouri, with their dogs and cats. Besides writing, Bill and Sharon are involved in collecting and restoring Camaros.

Please take a moment to visit Judge Bill Hopkins at www.judgebillhopkins.com

 

Courtroom Security: The Hidden Side of The Criminal Trial

Courtroom Security

You’ve all seen the deputies and other officers who guard courtrooms. Yes, they’re highly visible and they’re there to protect everyone from harm. However, courtroom security is far more than just watching prisoners inside the actual room where the trial is held.

Courtroom security officers diligently monitor spectators, witnesses, and defendants. They also watch the victim’s family members for any signs of potential violence against the defendant(s). And they’re always on high alert for escape attempts by prisoners.

But what we see in the courtroom—stern faces, sharply creased uniforms, and holstered weapons—is the tip of the iceberg. Behind the solid oak door at the rear of the courtroom is a well-oiled security machine with wheels that begin to turn long before the judge, jury, and witnesses sit down to have their breakfasts. In fact, many security measures have been in place for months, maybe years.

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Security starts with things like landscaping around the building and parking areas. Plantings and hardscapes must allow an unobstructed view and no potential hiding spots for snipers and others who may assist in an escape attempt during times of inmate and witness movement.

Outdoor lighting must be adequate, and prevent areas of darkness and shadow. Those yellow posts sticking up through the sidewalks and pavement? They’re in place to prevent a driver from rushing the building, or people. The barriers also prevent vehicles (those containing explosives, getaway vehicles, shooters, etc.) from getting too close to the facility.

Windows and doors are equipped with a shatter resistant film between the layers of glass. As a means of even greater protection some lower floor windows may be fitted with bullet-resistant glass. Doors are tamper proof and are connected to alarm systems.

Visitors to the courthouse, and their belongings, are carefully screened prior to entering secured areas of the facility.

Officer stationed at x-ray machine and walk-through metal detector.

Monitors for x-ray equipment.

Many judges have panic buttons hidden somewhere on their benches.

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A quick press of the button and the alarm sounds in manned stations within the courthouse and in nearby police departments.

Help is on the way in an instant.

Designated parking areas for judges and other court employees is a standard. The same is true for police and inmate transport vehicles. Any unauthorized vehicle in those areas is cause for concern and would require immediate investigation.

To further prevent breaches of security, the public is not permitted in any unauthorized areas of the court buildings.

Courthouses also feature secure areas for weapons and other sensitive material.

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Inmates are awakened, fed, and dressed long before the courtroom is open. All prisoners with hearings on a given day are transported from the county or city jail to the courthouse, where it’s quite possible they’ll each remain until the last trial of the day.

While at the courthouse prisoners must receive meals, bathroom facilities, etc. for the duration of their time there, which could be many, many hours.

Holding cells, where prisoners wait until the time of their trial, are located inside court buildings. After their time in the courtroom is complete, prisoners are returned to the holding cells where they remain until they’re transported back to the main jail, often at the end of the day when all inmates are transported at once.

*It is possible that transportation officers make trips to and from the jail and courthouse throughout the day. This depends on availability of staff members and vehicles. Remember, the fewer times inmates are out and about in the public, even in secured transport vehicles, reduces the opportunities for escape.

Inmate movement inside the courthouse is conducted through special hallways or passageways that are typically not available to the public.

FYI – Some courthouses are directly connected to jail facilities via underground/basement hallways.

Prisoner

In most areas, the duty of courtroom security falls on the sheriff of that particular jurisdiction. The sheriff assigns deputies to each courtroom, and each of those deputies receive specialized training that’s specific to the courtroom and inmate transportation.

In the federal system the job of courtroom and inmate security falls on the shoulders of the U.S. Marshals.

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Transporting prisoners via the U.S. Marshals’ Justice Prisoner and Alien Transportation System (JPATS). JPATS operates a network of aircraft, cars, vans and buses. (U.S. Marshals photo).

Protecting our courtrooms, and shuttling prisoners to and from those facilities, is a tough and dangerous job, a job with duties many people never see.

 

California Death Penalty Ruled Unconstitutional

California death penalty

 

Federal Judge Cormac J. Carney ruled that California’s death penalty is unconstitutional, dysfunctional, and beyond repair. In his ruling, the judge said California’s system is so broken that inmates are left wondering about their fates for decades, or more. In other words, death sentences in the Golden State have been transformed into life sentences with a slight chance that they’ll end in the inmate’s death. More than likely, though, that death would be due to natural causes, not by the hand of an executioner.

The death penalty in California basically serves no purpose. That’s no shock to anyone who’s ever followed one of their death penalty cases (Scott Peterson comes to mind). But how does it compare to the rest of the country? Does the sentencing phase of a death penalty case in California stand on equal ground with other areas of the country? Of course not. California jurors don’t face the same pressures as do their counterparts in…well, let’s say Texas. Texas jurors, when they sentence someone to die you’d better believe they know that within a reasonable amount of time (if you can believe that 10 years, or so, is reasonable) the state is going to kill that prisoner. California…not so much. In fact, the last inmate executed in California, Clarence Ray Allen, spent 26 long years on death row.

Terri Lynn Winchell, a 17-year old Lodi, Ca. girl, was murdered 34 years ago. Her killer, Michael Morales, was sentenced to death for the murder. As his execution date finally rolled around, in 2006, a federal judge ordered a hold on all death penalty cases due to a court challenge of the state’s lethal injection process. The hold is still in place because the state has yet to submit a suitable method of lethal injection for the courts to review.

It will most likely be many years before this mess is sorted out. Until then, nearly 800 men and women sit on California’s death row, mocking a system that spins its wheels while costing taxpayers staggering amounts of money. For starters, the cost of a death penalty trial and one appeal (attorneys, experts, etc.) can exceed a standard criminal trial by $1.5 million, or more.

To put the numbers in perspective, it costs California approximately $137 million annually to house death row inmates. In comparison, the cost to house non death penalty inmates, including those serving life without the possibility of parole (which is basically the same sentenced served by death row inmates in California) is over $11.5 million.

Let’s not stop there, though. Let’s dig a bit deeper into the costs associated with California death penalty cases.

– The Supreme Court automatically considers all capital cases if a sentence of death is handed down – the Court’s budget for hearing these cases is well over $15 million.

– The budget for the State Public Defender’s Office (for death penalty cases) exceeds $12 million.

Shall I go on? Okay, one more, out of many. The state funded Habeas Corpus Resource Center has a budget of over $13 million to assist indigent inmates with their appeals.

Is it truly worthwhile to spend the extra bazillion dollars just to see the words “condemned to death” on a piece of paper? After all, in most California death penalty cases, those two words mean about as much as the cost of the paper on which they’re printed…not much.

Why not convert all death penalty cases to life in prison without parole and call it a day. The state could then put those savings toward desalination plants or other means to ease the drought. By the way, I saw where California just passed water restriction regulations that include a fine of $500 per day to residents who waste water (hosing off your driveway, washing a car without a nozzle, etc.). Yet, a city-owned park near our new home ran mega-giant sprinklers 24 hours per day for a week to water a soccer field that hasn’t been used in months. Well, let me back up a bit. The field hasn’t been entirely vacant. A couple of homeless guys have been sleeping near the fence beneath the shade of two large eucalyptus trees.

After a couple of days of non-stop watering, there was so much standing H2O that birds and other wildlife played in it for days, splashing and bathing and sliding around. I’m sure the two homeless men enjoyed the entertainment.

I wonder if the same people in charge of water conservation also control collected tax money and corrections budgets? For some reason, when I close my eyes and picture them, this is what comes to mind…

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 *Also in Judge Carney’s Wednesday ruling was the stay of execution for Ernest Dewayne Jones, who’s been on death row for almost 20 years for the rape and murder of a Southern California accountant.

 

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Hear Ye, Hear Ye, All Rise For…The Mayor?

Hear ye, hear ye

 

It’s a small red-brick building nestled between Betty Lou’s Cut ‘n Curl and Smilin’ Bob’s Hardware and Pawn Shop. The lone parking space in front is reserved. The sign reads “Chief’s Parking Only.”

Inside, the hallway to the right takes you to the water department and the office of the building inspector. There, you can also purchase dog tags and yard sale permits. A left turn leads to the village police department, a force comprised of five dedicated, hardworking police officers—one chief, one sergeant, two full-time officers, and one part-time guy who’s also the mayor of the next town over.

Complaints can be filed with the dispatcher at the window, or by dialing the local number. Calling 911 in the Village of Bubbling Falls works the same as calling 911 in Big City, USA. Well, there is a tiny difference in the two…when you call 911 in Bubbling Falls, somebody always shows up to see what’s wrong. Not necessarily so in Big City.

Bubbling Falls dispatchers also work the computer terminals and NCIC. They know CPR and they know every single village resident and the quickest route to their houses.

Officers in Bubbling Falls attend the police academy and they receive the same training and certifications as the officers over in Big City. No, the Bubbling Falls PD doesn’t have all the latest fancy equipment with the shiny, spinning dials and winking, blinking lights. They don’t have specially trained detectives who only work homicides or white collar crime. And they don’t have divisions dedicated for traffic, vice, narcotics, and internal affairs. Budgets simply don’t allow it.

Instead, officers in Bubbling Falls are cross-trained. They each know how to run radar, direct traffic, dust for fingerprints, collect evidence, interview suspects and witnesses, and they know how to investigate a murder. They work burglaries and assaults. They also arrest drunk drivers, drug dealers, people who abuse their spouses, rapists, pedophiles, and robbers. They break up fights, help kids cross the street safely, and they locate lost pets. And, if one of their officers  steps out of line they’ll straighten his butt out too.

Of course, Bubbling Falls is totally fictional, but there are many actual small towns and villages with small police departments. And those small departments work the same type cases as the departments in larger cities. No, not all departments are large enough to have officers who serve as detectives. But they all employ police officers who are fully capable of investigating any type of crime. And they do, from traffic offenses to murder. Sure, they do the same work as a detective, but they do it while wearing a uniform instead of some fancy-smancy suit and high-dollar wingtip shoes.

So you see, most small departments operate the same way as the large ones, just on a smaller scale.

For example:

The Yellow Springs Ohio Police Department serves a village of slightly less than 4,000 residents. Therefore, the department is small. However, there’s a college in town and the village is located near Dayton and Springfield, which translates into the potential for a higher crime rate than would normally be found in a town that size. And, the potential for more crime means more proactive police work for the small number of officers.

The YSPD doesn’t have plainclothes detectives to investigate major crimes. Instead, as is the case with many small departments, uniformed officers investigate all crimes. So, when an officer receives a call from the dispatcher they see it all the way through—from the 911 call through court, including evidence collection, interviewing witnesses, etc.

If the officers need additional help, or resources, they call on the sheriff’s office.

Remember, not all departments operate in the same manner. Some smaller departments DO have detectives, and those investigators may or may not wear a uniform. They could dress in a coat and tie, and they could have the title of detective, or investigator. If they’re a detective who wears a uniform their rank would normally remain the same as it was when they were assigned to patrol duties. There is no standard rule. It’s entirely up to the individual department.

One other thing to remember—a police department and a sheriff’s office are not the same. Deputy sheriffs work for sheriffs, not police chiefs. But that’s a topic for another day.

YSPD dispatcher

NCIC equipment

Felony traffic stop

Issuing a traffic summons

An arrest

Small departments may not have LiveScan fingerprint terminals. If not, they’d still use the old ink and ten-print cards

Ten-print fingerprinting station

Small departments collect and preserve evidence using the same methods and materials used by larger departments

Evidence storage is on a smaller scale in smaller departments

 Evidence room in a small department

Evidence safe in a small department (for narcotics, etc.)

Officers’ shared workstation/office in a small department

Small departments follow the same procedures as any other department

Interior of a small department patrol car features the same equipment as any other patrol car

One interesting point to note is that Ohio mayors are authorized by law to hold Mayor’s Court, where they hear misdemeanor cases, such as bad check cases, assaults, tax-related issues, cases involving animals, trespassing, shoplifting, traffic offenses, etc.

Ohio law requires that prior to hearing certain cases, such as drug and alcohol related traffic offenses, each Mayor must attend 6 hours of classroom training. They must also attend a three-hour continuing education class each year.

State law also requires each Mayor’s Court facility be:

– Easily accessible by the public

– well-lighted and heated

– the mayor should preside from an elevated bench or table that separates them from the public. The table, or bench, must be flanked by the state flag and the U.S. flag.

– tables and chairs must be positioned so that all parties involved can see and hear the proceedings

– mayors must dress in attire that’s appropriate for the dignity of the proceedings

– smoking, foul language, and eating are not permitted in mayor’s courts

– Even though most mayor’s courts are held in small towns and villages, where nearly everyone knows his neighbors, first names and nicknames should not be used during the hearings.

– if an offense carries the possibility of jail time, the mayor must appoint an attorney to represent the defendant(s), if they haven’t already retained one.

*Of course, a defendant could save everyone a lot of time by checking the “guilty” box on the form handed to him at the start of the proceeding.

STATEMENT OF RIGHTS

WAIVER OF RIGHTS

PLEA OF GUILTY OR NO CONTEST

Defendant’s Name: ____________________________________________________________

In the __________________________________ Mayor’s Court, ____________________, Ohio

Case No. _________________Charge(s)____________________________________________

I am present in Court today and have been told:

(1)The law requires this Court to bring me to trial within thirty days of the date I was charged.

(2)I have a right to have a lawyer here at anytime, and I may have my case continued to get a lawyer(s).

(3) If the charge I am facing carriesa possible jail sentence, the Court will appoint a lawyer at no cost to me if I cannot afford to hire one.

(4) If the charge I am facing carries a possible jail sentence, I have the right to a jury trial.

(5) I have a right to remain silent. Anything I say can be used against me.

(6) The maximum penalty I can receive if I am convicted. If this is a traffic case, I also may lose the right to drive for some time and have points added to my driving record.

(7) If I am not a United States citizen, that a conviction could result in my deportation or denial of citizenship according to the laws of the United States.

(8) I have the right to remain free on a reasonable bail while my case is awaiting trial.

I HAVE READ THIS STATEMENT AND I UNDERSTAND IT. I WAS GIVEN THE CHANCE TO ASK QUESTIONS AND THEY WERE ANSWERED.

I have decided on my own to waive my rights and proceed today. I do not want a continuance to talk to a lawyer.

I plead:

Guilty ___

No Contest ___

Signed: ___________________________ Date ______________________________

Witnessed by: ___________________________ Date ________________________

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Jodi Arias, Michael Benge, A Court Stenographer, And…Boiled Eggs?

Jodi Arias

What do Jodi Arias, Drew Peterson, and Scott Peterson all have in common? Well, besides committing murder, that is.

Each of the three convicted killers—Arias and the two Peterson’s, were all jail inmates at the start of their high-profile murder trials, which means there was a lot of activity going on behind the scenes that the public never saw. For example, jail staff had to be sure the defendants were up, fed, and ready to go in time to be at the courthouse long before the judges entered the courtroom.

Since many inmates heading out for trial normally leave the jail prior to regular mealtimes, they’re often provided a brown bag breakfast consisting of two boiled eggs, two slices of bread, and a carton of juice (varies from facility to facility).

Inmate transport vehicle

Prisoners are normally transported to the courthouses in secure transport vehicles. However, some courthouses and jails are connected via an underground hallway, which allows jail transport staff to walk the shackled prisoners to the courthouse holding cells.

Courthouse holding cells

Jail inmates wait in holding cells until their cases are called. During long recesses, such as lunchtime, the prisoners are returned to the holding cell until the trial resumes. Again, the noon meal is usually a bag lunch, such as two cheese sandwiches, an apple, and a carton of juice.

The responsibility of protecting county courtrooms, judges, jury members, court employees, witnesses, and all citizens who attend court hearings and trials, falls on the shoulders of the county sheriff.

The sheriff is also responsible for transporting jail inmates to and from their court appearances, and for guarding the prisoners while they’re inside the courthouse.

US Marshals have the responsibility of providing security and prisoner transport for federal courts.

Sheriffs deputies employed as court security officers undergo special training related to working in a court environment. Depending on an individual sheriff’s policy, court security officers may, or may not, be certified police officers.

The sergeant (you can tell he’s a sergeant by the three stripes on his sleeve and collar pin) in the above photograph is in charge of all courtroom security operations. In addition to supervising the deputies working in the various courtrooms, he’s responsible for delivering each prisoner to the correct courtroom on time.

Closed circuit cameras in each courtroom and other strategic locations, project real-time images to the security office. Judges also have panic buttons beneath their benches. A press of the button sends an emergency signal to the security office, and to police dispatchers and the nearby sheriffs office.

Deputies gather chains in preparation of transporting prisoners back to jail.

Court security officers must learn to use various screening devices, such as hand-held metal detecting wands and x-ray equipment.

Monitors for x-ray equipment.

Officer stationed at x-ray machine and walk-through metal detector.

Typical courtroom

Jury box

Jury room (deliberations)

Court reporter’s stenotype machine. Fun facts – Court reporters spell out words phonetically instead of typing each word, letter by letter. The machines they use cost anywhere from $1,000 – $5,000.

Death penalty case files stored under lock and key in county clerk’s office. For example, the third (middle) row of boxes consists of four cartons containing the entire case file for Michael Benge. Benge was convicted and sentenced to death for using a metal pipe to beat his girlfriend, Judith Gabbard, to death. After killing her, Benge weighted Gabbard’s body with concrete before tossing her in the Miami River. The car he’d driven to the river had become stuck in the mud, so Benge then swam across the river where he walked to a friend’s house.

Michael Benge was executed in 2012. His final meal request included a large chef salad, barbecue baby back ribs, two cans of salted cashews and two bottles of iced tea.