Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.

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Did Mark O’Mara advise the HOA to settle the Fulton-Martin lawsuit

April 7, 2013

I am hoping to find out today if Mark O’Mara played any role in advising the HOA to settle the wrongful-death lawsuit filed by Tracy Martin and Sybrina Fulton.

Sundance Cracker at The Conservative Treehouse claims that he did. This is the website O’Mara has publicly referenced with approval as a source of ideas.

Since Benjamin Crump represents Tracy Martin and Sybrina Fulton that would certainly qualify him as opposing counsel for purposes of the silly deposition issue.

More importantly, he would have a conflict of interest because he would be in possession of inside information obtained from his client, plus all of the discovery that has not been released to the public, and advising the HOA to settle before the criminal trial.

That’s the equivalent of saying:

GZ’s self-defense claim isn’t going to fly. He’s going to be convicted of murder 2, so you better cut your losses to a minimum by settling now.

If true, that’s a conflict of interest and a major violation of a lawyer’s obligation to maintain client confidentiality.

Imagine how you would feel, if you were George Zimmerman.

O’Mara should be kicked off the case and disbarred, if he did that.

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Judge Nelson will not remove Mark O’Mara from the case

March 22, 2013

Friday, March 22, 2013

Not Angela Lansbury said,

Yes indeed, anything is possible, and I could be way off base here. But I’m not arguing that O’Mara suborned perjury, only that his own client implicated him in that crime and that that set up a conflict of interest between lawyer and client, where Fogen had an interest in being deemed credible in all things and O’Mara had an interest in Fogen being deemed a liar. O’Mara needs to be able to say to whomever it may concern that everyone knows his client was a liar. He absolutely buried Fogen with quotes like “credibility problem” and “need to restore his credibility” when he should have defended his client’s credibility and thrown Shellie under the bus all alone. When a lawyer has an interest in his client being seen as a liar, he can’t ethically represent that client.

I’m not sure a judge can bounce a defense lawyer directly, but s/he could file a complaint with the bar and/or state supreme court and halt the proceedings until the complaint is resolved. That complaint would be heard almost immediately and would have the effect in most cases of pressuring the lawyer to withdraw. The judge would need to complete the record of the ethical lapse before filing the complaint, which in this case would include Fogen’s phone call and O’Mara’s letter, together proving the conflict. So I think when O’Mara saw Lester file his letter over a month after it was submitted, he was on alert for disciplinary action. I don’t see any another reason for Lester to have entered that letter into the record.

You raise an interesting issue but I do not expect Judge Nelson, or any other judge in her situation, would take any action against O’Mara because it would be viewed as interfering in the attorney-client relationship. For better or worse, the defendant selected O’Mara as his attorney and O’Mara made a strategic decision to concede that the defendant and his wife misrepresented their assets because he was innocent, unsophisticated and did not trust the court to deal with him fairly.

The strategy worked because Judge Lester permitted the defendant to be released on bail.

I do not believe O’Mara was ever in any danger of being charged with a crime relating to his knowledge of the money and the passport and he duly informed the court about them after the bail hearing. Therefore, I do not believe that it’s fair to state that he had” an interest in his client being seen as a liar.”

Finally, Judge Nelson may not even know about the recorded jailhouse call and the defendant’s comment about the $37,000.

Nevertheless, I do believe that O’Mara has a conflict of interest between his desire to use this case as a vehicle to fame and fortune and his obligation to represent his client’s best interests.

Playing the race card, demonizing the victim, misrepresenting the facts to the media, and trying this case in the court of public opinion are not helping his client.


Jose Baez should not comment about Zimmerman case

March 10, 2013

Sunday, March 10, 2013

I do not believe it is appropriate for Jose Baez to comment publicly on the Zimmerman case for Channel 6 or any other form of media.

Since Baez represents Chris Serino, who was in charge of the investigation of Trayvon Martin’s death, he has a duty to vigorously represent Serino’s best interests at all times, even after he no longer actively represents him.

Baez also has a duty to maintain client confidentiality which precludes him from sharing inside information that he obtained from Serino.

I do not see any way that Baez can honestly and reasonable comply with his duties to his client while commenting as an independent expert regarding the investigation and the defendant’s likely guilt or innocence.

There will be times when his duties to his client prevent him from commenting honestly and independently about certain aspects of the case and he will have to cheat one way or the other when he expresses an opinion.

That situation creates a conflict of interest that violates the rules of professional responsibility.

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