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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The differences between regular guilty pleas and Alford pleas

April 8, 2013

Monday, April 8, 2013

Many have asked about what will happen if GZ pleads guilty to murder second degree. Most want to know if the prosecution will lay out its case for the public.

The quick answer is probably not.

There are two types of guilty pleas: a regular guilty plea and an Alford plea.

In a regular guilty plea, the defendant must provide a factual basis to support each element of the crime that the defendant is admitting. The factual basis is written by the defendant’s lawyer and it contains the bare bones necessary to support the charge. For example, O’Mara might write something like this:

On or about February 26, 2012 in Sanford, FL I shot and killed Trayvon Martin in the chest at close range with complete disregard for whether he lived or died. I did not even call 911 for emergency medical assistance and I did not attempt CPR. He did not attack me, he was not armed with a weapon, and I did not shoot him in self-defense. This incident happened in Seminole County, FL

Before accepting his guilty plea, Judge Nelson would place him under oath and read that statement to him and ask him if it was his statement and if it were voluntary after considering all of his rights, including the right to be presumed innocent, remain silent, and force the prosecution to unanimously convince a jury that it had proven each element of the crime charged beyond a reasonable doubt.

She would accept his plea, if he answers those questions affirmatively.

The Alford plea is quite different because a defendant concedes that the prosecution can prove its case beyond a reasonable doubt without admitting that he committed the crime. The prosecution then provides the factual basis for the guilty plea by attaching police reports, witness statements, and forensic reports to the guilty plea. Defendant admits that he has reviewed those reports, their contents are true and correct, and the court may consider them in deciding whether he is guilty.

The court takes a recess and reviews the materials. When she is finished, court resumes and she accepts the plea.

Alford pleas are based on the SCOTUS decision in North Carolina v. Alford, 400 U.S. 25 (1970). They permit defendants to continue to claim they didn’t commit the crime, but the legal system makes no distinction between the two. Both are treated the same for sentencing purposes.

A good example of an Alford plea would be a defendant who claims innocence agrees to plead guilty to take advantage of a plea agreement to plead guilty in exchange for the prosecution’s agreement to not seek the death penalty. This is what happened in Alford.

Due to the nature of the Alford plea, more information about the crime is incorporated into the record than would be the case with a regular guilty plea.

Obviously, much more information comes out, if the case goes to trial.

I do not like Alford pleas because they generally permit defendants to avoid accepting responsibility for what they did and that can come back to hurt them, for example, when a parole board reviews the case and decides to deny parole because the defendant never has accepted responsibility for what he did.

Failure to accept responsibility also typically results in a determination that the defendant is in denial and not amenable to treatment in cases where treatment is a sentencing option.

I hope this summary of the two types of guilty pleas and how they differ answers your questions.

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Loughner: Defense and Prosecution Benefit from Guilty Plea in Exchange for No Death Penalty

August 6, 2012

According to recent news reports, Jared Laughner is now competent and will plead guilty in federal court tomorrow (Tuesday) in exchange for the prosecution’s agreement not to seek the death penalty. No additional details were reported. I have written the following article based on the assumption that these reports are true.

I believe both sides and the public benefit from this agreement for the following reasons.

The defense benefits because there is a significant probability that it would fail to convince the jury that Mr. Loughner was insane when he shot all of the victims. As I have explained in previous articles, the legal test for insanity requires proof that a defendant was suffering from a mental disease or defect when he committed the crime, such that he was unable to distinguish between right and wrong and conform his conduct to the requirements of law.

Most mentally ill defendants, including those who were psychotic and delusional when they committed the crime, cannot satisfy this test because they knew they did something wrong and would get in trouble with the law, if they were caught. That is, the defense will likely fail if there is any evidence that the defendant knew he was committing a crime or if he attempted to conceal evidence of the crime and his participation in it. In addition, a defendant does not go free, if he is found not guilty by reason of insanity.

The prosecution benefits from the agreement because it achieves the most probable outcome of a trial without having to expend all of the effort, time and money necessary to try the case. A guilty plea also avoids a lengthy appeal process and establishes a finality to the legal process. That in turn creates an important opportunity for victims and their families to begin the process of healing themselves and moving on with their lives.

There is no doubt that Mr. Loughner was psychotic and delusional when he committed the crimes and, even if the jury rejected the insanity defense and found him guilty, there is a significant probability that the jury would conclude that his impaired mental condition when he committed the crimes was a sufficient mitigating circumstance to justify sentencing him to life in prison instead of sentencing him to death.

The public benefits from the agreement because it produces a fair and equitable result, given Mr. Loughner’s serious mental illness and disabilities. Schizophrenia is a horrific disease that destroys lives by causing delusions that the person cannot distinguish from reality. Even though medication can reduce and often prevent delusions, it has unpleasant zombie-like side effects that eliminate joy and excitement. Since schizophrenia is a debilitating disease that no one would voluntarily choose, basic human decency, empathy and mercy call for a life sentence, rather than the death penalty.

Before the Court can accept a guilty plea, it must determine whether Mr. Loughner is competent. Mr. Loughner had refused to take anti-psychotic medication until the Ninth Circuit recently affirmed the trial court’s order to medicate him forcibly, if necessary. I think we can reasonably conclude that he has taken the medication and is now competent since this hearing would not have been scheduled, unless he were competent and his lawyers were able to explain and discuss the terms of the plea agreement, including the important constitutional rights he will be giving up, if he pleads guilty.

We can expect one or more mental health experts will testify tomorrow that he is competent. That is, that he is oriented as to time and place, understands his legal predicament and the possible consequences if convicted, can tell the difference between the truth and a lie, can communicate with his lawyers and assist them to represent him, is capable of making decisions that are in his best interest, and understands the obligation to answer the Court’s questions truthfully.

Assuming the Court finds him competent, it will ask him a series of questions about the guilty plea to determine if he has read and reviewed it with his lawyers, understands all of its terms, and knows that he will give up the right to go to trial if he pleads guilty.

After confirming that he has knowingly, voluntarily, and intelligently decided to waive his right to trial in order to receive the benefit of his agreement with the prosecution, the Court will ask him to state in his own words what he did.

Defendants usually follow the advice of their lawyers to provide a simple bare-bones set of facts that support the charges to which they are pleading guilty.

If the statement is sufficient, the Court will accept the guilty plea and approve the plea agreement.

Normally, sentencing takes place six weeks later to allow time for the United States Probation Office to prepare a report regarding the defendant’s role in the offenses, the applicable sentencing ranges for the offenses, and a sentencing recommendation. Since the parties and the Court will have agreed to the sentence, there will not be any need for the report. Do not be surprised if the Court waives the presentence report with the agreement of the prosecution and the defense and proceeds directly to impose a life sentence.

I believe this probably is a fair, just and equitable resolution of the case. I say “probably” because I do not know if the State of Arizona is satisfied with the outcome. The United States lacked jurisdiction to prosecute Mr. Loughner for four of the murders because those victims were not federal employees carrying out their official duties when they were killed.

The four private citizens were:

(1) Christina Taylor-Green (age 9);

(2) Dorwin Stoddard (age 76);

(3) Dorothy Murray (age 76); and

(4) Phyllis Schneck (age 79).

The State of Arizona has jurisdiction to prosecute Mr. Loughner for those four murders, since the crimes were committed in Arizona.

The State of Arizona also has a death penalty and it could prosecute Mr. Loughner for those murders and seek the death penalty, if he is convicted.

I believe the defense has attempted to do everything that it possibly can to persuade the state prosecutors to agree not to seek the death penalty against Mr. Loughner, if he pleads guilty to the federal charges.

I suspect they have decided not to seek the death penalty because they probably realize they would have no better chance than the federal prosecutors of convincing a jury to sentence Mr. Loughner to death, given the powerful mitigation evidence of mental illness.

Should this be the case, they may do nothing or they may have already agreed to charge Mr. Loughner with the four murders and the remaining crimes that the United States lacked jurisdiction to prosecute, but forego seeking the death penalty, if he pleads guilty to those offenses.

Although such an agreement would not add any time to his sentence, it might appease the prosecution’s desire to obtain convictions of record for crimes that Mr. Loughner committed but could not be prosecuted for in federal court due to lack of jurisdiction.

Mr. Loughner would not have much incentive to plead guilty in federal court to avoid the death penalty only to have Arizona seek the death penalty. Since he has agreed to plead guilty, I am inclined to believe that the State of Arizona has agreed not to seek the death penalty.

Three party global resolutions are tough, but not impossible to pull off. We will find out if that happened tomorrow.


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