Many people are familiar with the basic idea of making bail. You can put the entire amount up yourself or you can put approximately 10% down and a bail bondsman will cover the other 90%. The upside of putting the money down yourself is that except for some fees, you'll get most of it back. When you pay a bail bondsman they keep that 10% as their fee. Note these fees may vary somewhat based on your jurisdiction.
What many people don't realize is that the governmental body (police, sheriff) holding the prisoner may have their own set of rules regarding that prisoner's release. In a recent case that I was involved in, the judge had required a $30,000 bond. After the fees were paid to the bail bondsman, we expected the prisoner would be let go. However, that did not happen. The sheriff in this case made additional demands. Specifically they required that they people putting up the bond also provide deeds to their homes, as well as proof of equity. Further, the sheriff did not declare this requirement until after the money had been put up and when it was too late in the day to go get the required documentation.
It was after 5:00. The judge in this case had gone home, and many other governmental offices and banks had closed. Fortunately, the media had not gone home for the day. Through phone calls from both local and national media, suddenly brought a change of tune from this particular sheriff.
The moral of the story is: don't assume this will be an easy process. Make sure you find out in advance exactly what will be required, especially in high profile cases. There may be people with their own agendas.
Tuesday, September 25, 2012
Wednesday, September 19, 2012
Deadlocked
So the case is over, all of the testimony has been given. The evidence has been submitted, closing arguments are over, and the case has gone to the jury. They may deliberate for an hour, a day, even a week, but at least you will have resolution right? As Lee Corso might say, "Not so fast!"
There is always the possibility of a deadlocked jury. This is fairly uncommon, but what does it really mean in a real-world sense? There is certainly no definitive result: no conviction, no acquittal. In civil trials it is not uncommon to have less than unanimity, but with criminal trials most jurisdictions require 12-0 either to acquit or convict. Of course, even that isn't true, and there is a significant line of cases that suggests that under the right circumstances, a less than unanimous verdict can still achieve either conviction or acquittal. I won't go into all of those details now.
What is interesting is what happens when there is a deadlocked jury. Some jurisdictions allow an "Allen" charge to try and break up the deadlock. This is an admonishment from the judge for the jury to really, really try and achieve a result. The idea is that the parties have presented their best case, there is no reason to believe that retrying this case will result in anything substantially different, and there is no reason to believe that a new jury wouldn't have the same issues as they (the jury) are having. "Punting" the issue of guilt or innocence to 12 new people is an abdication of their duty.
The case I have been working on just resulted in a mistrial. The jury voted 10-2 in favor of acquittal. While this was somewhat gratifying in the sense that most of the jurors voted our way, it wasn't a complete victory. Now, the defendant faces the possibility of a retrial. We may have to do this all over again. He still is not "free," and won't be until the State drops the charges entirely. In fact, he is not even free in the literal sense. The bond reduction hearing is today. So, a man who has been in jail for 2.5 years awaiting his day in court now waits another day, because 10-2 is NOT 12-0. As defense counsel said, "it was a dry run." Nothing more.
And that is a mistrial...
There is always the possibility of a deadlocked jury. This is fairly uncommon, but what does it really mean in a real-world sense? There is certainly no definitive result: no conviction, no acquittal. In civil trials it is not uncommon to have less than unanimity, but with criminal trials most jurisdictions require 12-0 either to acquit or convict. Of course, even that isn't true, and there is a significant line of cases that suggests that under the right circumstances, a less than unanimous verdict can still achieve either conviction or acquittal. I won't go into all of those details now.
What is interesting is what happens when there is a deadlocked jury. Some jurisdictions allow an "Allen" charge to try and break up the deadlock. This is an admonishment from the judge for the jury to really, really try and achieve a result. The idea is that the parties have presented their best case, there is no reason to believe that retrying this case will result in anything substantially different, and there is no reason to believe that a new jury wouldn't have the same issues as they (the jury) are having. "Punting" the issue of guilt or innocence to 12 new people is an abdication of their duty.
The case I have been working on just resulted in a mistrial. The jury voted 10-2 in favor of acquittal. While this was somewhat gratifying in the sense that most of the jurors voted our way, it wasn't a complete victory. Now, the defendant faces the possibility of a retrial. We may have to do this all over again. He still is not "free," and won't be until the State drops the charges entirely. In fact, he is not even free in the literal sense. The bond reduction hearing is today. So, a man who has been in jail for 2.5 years awaiting his day in court now waits another day, because 10-2 is NOT 12-0. As defense counsel said, "it was a dry run." Nothing more.
And that is a mistrial...
Closing Arguments in Disorder
We all watch the movies, television. We have all seen the dramatic scenes where the "good" lawyer moves the other characters, or even you, to tears, rage, or joy because of their well-selected phrases, and their ability to build a logical argument that is so persuasive that it is impossible to deny.
However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?
Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.
Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.
This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.
Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.
Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.
In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...
However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?
Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.
Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.
This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.
Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.
Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.
In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...
Monday, September 17, 2012
To Testify or Not to Testify?
That is the question! Of course no one ever has to testify in a court proceeding where they're the defendant, but there are different reasons and strategies as to why someone may, or may not choose to testify on their own behalf.
First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?
The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.
You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.
From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.
My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.
First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?
The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.
You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.
From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.
My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.
Wednesday, September 12, 2012
All About Alleles
Day Two in my new life as a blogger. I have been involved in a criminal case for the past two and a half years. It is a cold-case murder, and I have been volunteering my legal services to the accused. I am not the primary defense attorney in this case. The case is being tried in Georgia, and I am not licensed there. (Remember My Cousin Vinny?) However, I have been donating time and mental energy to the research and strategy involved.
As it turns out, I have been able to provide a fair bit of help on the dna evidence the prosecution has introduced. I always loved math and science in my earlier academic years, and I still do today. So, I did quite a bit of work analyzing and discussing the data with our forensic expert.
We are still in the prosecution's case-in-chief, so I certainly have to be careful about saying too much about the strategy we are using, and/or what I cannot say. However, I can say at this point that there is a lot about dna evidence that most people probably never realized. When you think of a dna match, you tend to think about that 1 in a billion, 1 in a trillion sort of odds that essentially means that statistically there is no way anyone on Earth committed this crime except for you, your identical twin, or your clone that was sent back to the present from the future.
Actually, that is inaccurate. I will try and put this in simple terms, as I am no expert myself, and I want to be careful not to stray beyond what I think I know. Human beings share a great deal of their genetic code with each other--over 99%. However, there are a number of different sites (loci) on the dna molecule where you can find the differences that make us unique. Much like a fingerprint, we all have these sites, but they may have different values represented there. These values are the "alleles" that are the traits represented at that site. (Eg: hair color, skin color, etc). However, a similarity or a match at one site is hardly conclusive, as we share so many of the same alleles. Imagine, there are many people with black hair, but that does not mean they all also have the same eye color, or skin color.
So, if my dna matches evidence at one particular loci, it does not mean I will match at other loci. The more matches I have with that evidence, the higher the statistical probability that my dna actually matches the evidence in question. Now, two important things about that: 1) just because I can be a contributor of that allele does not mean I AM the contributor of that allele--this is particularly important in mixed samples; and 2) it is possible to exclude a person as a contributor to a sample if they do not share the same alleles.
Of course, there is a lot in between, which is why someone might be considered a probable match, a likely match, a possible match, or not a match at all. Knowing how many of the sites match is very important in knowing how strong of a case you do (or don't) have if it is predicated partially or wholly on this dna evidence. So when handling a case like this, get a good expert. Make sure you truly understand what they're telling you, so you properly can handle the direct or cross examination. It is likely many/most of the jury won't know this any better than you do, and you need to be able to get them to understand your point. This can really make or break a case!
Jay
As it turns out, I have been able to provide a fair bit of help on the dna evidence the prosecution has introduced. I always loved math and science in my earlier academic years, and I still do today. So, I did quite a bit of work analyzing and discussing the data with our forensic expert.
We are still in the prosecution's case-in-chief, so I certainly have to be careful about saying too much about the strategy we are using, and/or what I cannot say. However, I can say at this point that there is a lot about dna evidence that most people probably never realized. When you think of a dna match, you tend to think about that 1 in a billion, 1 in a trillion sort of odds that essentially means that statistically there is no way anyone on Earth committed this crime except for you, your identical twin, or your clone that was sent back to the present from the future.
Actually, that is inaccurate. I will try and put this in simple terms, as I am no expert myself, and I want to be careful not to stray beyond what I think I know. Human beings share a great deal of their genetic code with each other--over 99%. However, there are a number of different sites (loci) on the dna molecule where you can find the differences that make us unique. Much like a fingerprint, we all have these sites, but they may have different values represented there. These values are the "alleles" that are the traits represented at that site. (Eg: hair color, skin color, etc). However, a similarity or a match at one site is hardly conclusive, as we share so many of the same alleles. Imagine, there are many people with black hair, but that does not mean they all also have the same eye color, or skin color.
So, if my dna matches evidence at one particular loci, it does not mean I will match at other loci. The more matches I have with that evidence, the higher the statistical probability that my dna actually matches the evidence in question. Now, two important things about that: 1) just because I can be a contributor of that allele does not mean I AM the contributor of that allele--this is particularly important in mixed samples; and 2) it is possible to exclude a person as a contributor to a sample if they do not share the same alleles.
Of course, there is a lot in between, which is why someone might be considered a probable match, a likely match, a possible match, or not a match at all. Knowing how many of the sites match is very important in knowing how strong of a case you do (or don't) have if it is predicated partially or wholly on this dna evidence. So when handling a case like this, get a good expert. Make sure you truly understand what they're telling you, so you properly can handle the direct or cross examination. It is likely many/most of the jury won't know this any better than you do, and you need to be able to get them to understand your point. This can really make or break a case!
Jay
Tuesday, September 11, 2012
Getting Started
Hi Everyone! Jay Worrall here, making my very first blog entry. I suppose with time I will consider myself a blogger, but right now I feel a bit odd writing to everyone in general but no one in particular. Someday I suppose you, my faithful readers, will look back in the archives and say, "so this is where it all started!" I'm sure there will be excitement, such as opening an ancient Pharoah's crypt? I digress.
As the name of my blog may suggest I am an attorney. I graduated from California Western School of Law in 2003, took and passed the CA Bar on the first try, and clerked for the next 2+ years for Judge Robert C. Naraja, Presiding Judge for the Superior Court of the Commonwealth of the Northern Mariana Islands. After clerking, I went to work in the business world, and haven't truly been a "practicing attorney" since. I have performed work on contracts, employment law, bankruptcy, distribution law, and other business-related legal matters, but I hadn't been inside a court room in years--until this last week. More on that later.
Despite my absence from the courtroom, I have stayed abreast of legal issues near and dear to me, and have also kept current with my CLE's. Now that I have become more active again in the legal world, I find that I have missed it more than I realized. Of course, being involved in a high-profile criminal case is always more exciting.
I am not sure what my next project will be. I have also been helping a small non-profit get their start, and that has been rewarding. Once I get through this trial I will take a short break and take stock of my situation. In any case, thank you for taking the time to read my first post, and I hope to keep publishing a steady stream of updates about legal issues, cases I am involved in, or current events that have relevance in the legal world. I hope you enjoy my posts!
Jay Worrall
As the name of my blog may suggest I am an attorney. I graduated from California Western School of Law in 2003, took and passed the CA Bar on the first try, and clerked for the next 2+ years for Judge Robert C. Naraja, Presiding Judge for the Superior Court of the Commonwealth of the Northern Mariana Islands. After clerking, I went to work in the business world, and haven't truly been a "practicing attorney" since. I have performed work on contracts, employment law, bankruptcy, distribution law, and other business-related legal matters, but I hadn't been inside a court room in years--until this last week. More on that later.
Despite my absence from the courtroom, I have stayed abreast of legal issues near and dear to me, and have also kept current with my CLE's. Now that I have become more active again in the legal world, I find that I have missed it more than I realized. Of course, being involved in a high-profile criminal case is always more exciting.
I am not sure what my next project will be. I have also been helping a small non-profit get their start, and that has been rewarding. Once I get through this trial I will take a short break and take stock of my situation. In any case, thank you for taking the time to read my first post, and I hope to keep publishing a steady stream of updates about legal issues, cases I am involved in, or current events that have relevance in the legal world. I hope you enjoy my posts!
Jay Worrall
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