CRIMINAL DEFENSE |
PERSONAL INJURY |
CRIMINAL DEFENSE:
Clearly this is not an exhaustive list of all the possible charges one could face. Nor is it an exhaustive list of the types of cases this office has defended. This is a general guide to some of the most common types of criminal cases and a brief introduction into the judicial process. For a more in depth analysis of your case, contact this office directly.
Clearly this is not an exhaustive list of all the possible charges one could face. Nor is it an exhaustive list of the types of cases this office has defended. This is a general guide to some of the most common types of criminal cases and a brief introduction into the judicial process. For a more in depth analysis of your case, contact this office directly.
So You're Loved One Has Been Arrested, Now What?
Our criminal justice system is one of the strongest connections to our Founding Fathers but few people truly understand how it can effect them or how to maneuver through it once they have been caught up by the slow-spinning wheels of justice. Far too often they want to tell their story to anyone who will listen, as if by some miracle a policeman or guard is going to say, “Oh, well now that you’ve explained it, I see clearly that you did not commit this offense. Of course you may leave! Here, let me get the door for you.” Which leads me to Rule No. 1 for those who find themselves behind bars: Keep your mouth shut! Do not discuss the facts of the case with anyone or over the phone with your incarcerated loved one. Most conversations in a jail facility are recorded. Cell mates may try to trade the information for a lighter sentence. Investigators may put someone in the cell to specifically get incriminating evidence. You have a right to remain silent...USE IT! And memorize some phone numbers. What good is your "phone call" if you can't remember anyone's telephone number?
Obviously, jail is not a nice place to be. But no one really understands the value of a day until they have spent 24 hours behind bars. Irrespective of the constant noise, lights, and of course that indelible smell, you must also consider that someone who has been arrested has been separated from all forms communication and identity. Most people nowadays can’t go more than 15 minutes without looking at their cell phone; imagine an entire weekend. This lack of communication leads to stress. What compounds the stress is the expectation of release.
Most jurisdictions take a significant amount of time to process inmates into their detention facility and an equal amount of time to process them out. A common misconception among lay people is the amount of time it takes to get their loved one out of custody. It could take hours or even days depending on the workload the guards have at the jail and whether or not it is a weekend—or worse, a holiday.
Arranging Bond
Article 14.06 of the Texas Code of Criminal Procedure says that a police officer must take a suspect before a magistrate within 48 hours of arrest. The Federal Code says “without necessary delay.” Fed. R. Crim. P. 5 (a)(1)(A). Therefore, a defendant should be in front of a judge within 24 to 48 hours. That judge, or magistrate, will inform the suspect of what he is being charged with, what his rights are, and what the bond amount will be. There are a number of factors that go into determining whether or not a suspect gets a bond and, if so, how much that bond will be.
The specific purpose of bond is to assure the defendant’s appearance at court. Stack v. Boyle, 342 U.S. 1 (1951). In essence, the accused is saying, “Judge, if you let me out of jail today, I promise to come back and answer for these charges. As a token of my sincerity, here is X amount of dollars that you can keep if I don’t show up to court.” However, there are many things a judge can look at when deciding how much that “X” should be. A judge may consider “the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender and the danger to the community.” U.S. v. Salerno, 481 U.S. 739 (1987). The history and characteristics of an offender have a great deal more to do with a bond than what this excerpt may suggest.
Factors Affecting Bond
The criminal history of an offender is going to involve virtually anything and everything he has ever been arrested for above a traffic ticket. It doesn’t matter if he was a juvenile or if it happened in another state. The judge can look at anything that may help in determining if this person is a danger to the community. A prior felony conviction will obviously have a serious impact on that decision. When examining the characteristics of a defendant, the judge will want to know if the accused has a job. If so, how long has he been at that job? Does he own a home or does he rent? Is he married? Does he have any children? What are his family ties? Where did he go to high school? What are his ties to the community? In other words, how much skin does this person have in the game and how much will he lose if he decides to run? The judge will weigh all these factors along with those previously mentioned to determine just how high the bond will be. Many jurisdictions have averages—amounts that are listed on “schedules” for specific crimes. These are guidelines for the judges to follow on certain types of offenses. Obviously, the more serious the crime, the higher the bond.
Some defendants, however, are not entitled to a bond. If the accused is already on probation or parole for another offense, he may not be entitled to a bond. Probation is community supervision in lieu of incarceration; if you follow the conditions of probation, you stay out of jail. Parole is early release from prison for good behavior; if you follow the conditions of parole, you don’t have to go back to prison. In both cases, committing a new offense is considered a “new law violation.” Anyone under these conditions may be given a bond on the new offense but may be held with “no bond” on the old offense. So even if the family goes to pay a bail bondsman on the new case, the person will not be released because of the probation “hold” or parole “blue warrant.” The family would just be wasting money. A lawyer could, however, approach the judge and ask for a bond on the old case for which the accused is on probation or parole. But then there is the dilemma of whether to spend the money on the lawyer or on the bond—a quandary I will address below in more detail.
If the person is already on bond for another case, that too could cause the same sort of chain reaction leading to a delay in release. When a judge sets a bond and allows a defendant to be released from jail, he has the authority to lay down certain conditions that must be followed if that person is to remain free while fighting his case. These are known as “conditions of release.” Defendants refer to them as being “on probation” even before they’ve been found guilty. Some common conditions of release include random drug testing, electronic monitoring, house arrest, and random visits from pretrial services officers. 18 U.S.C. §3142 (b)(c)(1)(A) (2006). If the charge is driving while intoxicated, an ignition interlock or in-home alcohol monitoring device should be expected. If it is a family violence or assault case, a magistrate’s order for emergency protection (also known as a protective order) frequently is put in place, which will temporarily restrict the accused’s ability to go within a certain distance of the complaining witness’s home or place of employment. Obviously, if the accused and the complaining witness are married and have children together, this can pose significant and unexpected difficulties.
Should any of these conditions be violated, the judge has the authority to revoke the bond and issue a new warrant for the defendant’s arrest, and in all likelihood will double the original bail amount. Bitter v. U.S., 389 U.S. 15 (1967). This means that the accused will lose the original bond and will have to go back to the bondsman to pay double what he paid in the first place.
Immigration status is another factor that may affect a person’s ability to get a bond. If a suspect is not a U.S. citizen, Immigration and Customs Enforcement (ICE) may very well place a “hold” on him until the case is adjudicated. In other words, even if the person is given a bond in the criminal case and the bond is paid, he still may not be released because of an “ICE hold.” This detainer may be placed on him at any stage prior to release. So just before someone is “ATW” (all the way out of jail), an ICE agent may interview him and decide to detain him. This includes legal permanent residents, persons in the United States with a valid visa, and persons with no status whatsoever.
Contacting a Bail Bondsman or a Lawyer
Check the Internet. Ask a trusted friend. As with any other purchase, do not be afraid to shop around. Whether it’s the holiday season or not, most bail bond offices are open 24 hours a day. On average they charge about 10 percent of the total bond amount. In other words, if the bond is set at $5,000, then it’s going to cost you $500 to get Junior out of jail. That $500 is gone. You will never see it again. It is the fee the bondsman charges to put up the whole $5,000. In essence, he is vouching for your boy. The bondsman is saying to the court that he will guarantee the defendant’s presence at trial and if he does not show up, then the court can keep his money. Obviously, the more money that the bondsmen can get from the accused, the better. So depending on the factors listed above, they may require a co-signer or some other form of collateral to insure their investment. They are not just going to put their money at risk based solely on someone’s signature. If the court date comes and goes and the defendant is nowhere to be found, then the bondsman will turn to a second form of insurance: bounty hunters. In many ways they have much more freedom in tracking down fugitives than do law enforcement officials. Suffice to say you do not want to wind up cross-ways with a bounty hunter.
But herein lies a rub: Do you spend your money on a bondsman or a lawyer? Well, as with most things in the legal field, it depends. It depends on the charges and the nature of the offense. It depends on whose court you’re in or in what county. It depends on what resources you have at your disposal. The truth of the matter is a lawyer probably cannot get your son out of jail. His work won’t truly begin until the case goes to court. So my inclination is to say spend your money on a bondsman first. But what if the accused has a bunch of prior convictions? Maybe a felony on his record? What if there’s no chance he’ll be offered probation or deferred adjudication? If the only offer coming from the assistant district attorney is jail time, would he not be better off earning his credit now? What if it’s a drug case and you know he’s only going to get out and use again? These are all questions that have to be answered on a case-by-case basis. If any of these issues apply to the accused, then perhaps the family is better off saving your money for a good lawyer.
On the other hand, if the bond is exorbitantly high, you may need to go ahead and acquire the services of a good lawyer who could possibly convince the judge to lower the bail. You’re not just paying a lawyer for his experience, his training, and his expertise. You’re also paying for his access. Someone with all these attributes will be much better at packaging all the factors mentioned above in such a way that will allow the judge to lower the bond without fear of reprisals or recriminations. Look, no one wants to be the judge who lowered the bond on someone who then went out, got drunk, and killed a family of four in an automobile accident. For judges who are elected, as they are here in Texas, that’s political suicide.
Personal Recognizance Bond
That is not to say that you cannot get released from jail based solely on your signature. In this case, a bondsman—or a lawyer—will have nothing to do with it. If the magistrate reviews all the factors above and finds that your son has no criminal record and fits all the necessary criteria that show he is neither a flight risk nor a danger to the community, the judge may very well release him on a personal recognizance bond. This is basically a signature bond where the accused signs a piece of paper promising to return to answer to the charges against him. This usually happens after an interview with a pretrial services officer. However, if the county you’re in is not large enough to have such an office, the accused may review those factors in front of the magistrate himself and ask for a “PR” bond.
Our criminal justice system is one of the strongest connections to our Founding Fathers but few people truly understand how it can effect them or how to maneuver through it once they have been caught up by the slow-spinning wheels of justice. Far too often they want to tell their story to anyone who will listen, as if by some miracle a policeman or guard is going to say, “Oh, well now that you’ve explained it, I see clearly that you did not commit this offense. Of course you may leave! Here, let me get the door for you.” Which leads me to Rule No. 1 for those who find themselves behind bars: Keep your mouth shut! Do not discuss the facts of the case with anyone or over the phone with your incarcerated loved one. Most conversations in a jail facility are recorded. Cell mates may try to trade the information for a lighter sentence. Investigators may put someone in the cell to specifically get incriminating evidence. You have a right to remain silent...USE IT! And memorize some phone numbers. What good is your "phone call" if you can't remember anyone's telephone number?
Obviously, jail is not a nice place to be. But no one really understands the value of a day until they have spent 24 hours behind bars. Irrespective of the constant noise, lights, and of course that indelible smell, you must also consider that someone who has been arrested has been separated from all forms communication and identity. Most people nowadays can’t go more than 15 minutes without looking at their cell phone; imagine an entire weekend. This lack of communication leads to stress. What compounds the stress is the expectation of release.
Most jurisdictions take a significant amount of time to process inmates into their detention facility and an equal amount of time to process them out. A common misconception among lay people is the amount of time it takes to get their loved one out of custody. It could take hours or even days depending on the workload the guards have at the jail and whether or not it is a weekend—or worse, a holiday.
Arranging Bond
Article 14.06 of the Texas Code of Criminal Procedure says that a police officer must take a suspect before a magistrate within 48 hours of arrest. The Federal Code says “without necessary delay.” Fed. R. Crim. P. 5 (a)(1)(A). Therefore, a defendant should be in front of a judge within 24 to 48 hours. That judge, or magistrate, will inform the suspect of what he is being charged with, what his rights are, and what the bond amount will be. There are a number of factors that go into determining whether or not a suspect gets a bond and, if so, how much that bond will be.
The specific purpose of bond is to assure the defendant’s appearance at court. Stack v. Boyle, 342 U.S. 1 (1951). In essence, the accused is saying, “Judge, if you let me out of jail today, I promise to come back and answer for these charges. As a token of my sincerity, here is X amount of dollars that you can keep if I don’t show up to court.” However, there are many things a judge can look at when deciding how much that “X” should be. A judge may consider “the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender and the danger to the community.” U.S. v. Salerno, 481 U.S. 739 (1987). The history and characteristics of an offender have a great deal more to do with a bond than what this excerpt may suggest.
Factors Affecting Bond
The criminal history of an offender is going to involve virtually anything and everything he has ever been arrested for above a traffic ticket. It doesn’t matter if he was a juvenile or if it happened in another state. The judge can look at anything that may help in determining if this person is a danger to the community. A prior felony conviction will obviously have a serious impact on that decision. When examining the characteristics of a defendant, the judge will want to know if the accused has a job. If so, how long has he been at that job? Does he own a home or does he rent? Is he married? Does he have any children? What are his family ties? Where did he go to high school? What are his ties to the community? In other words, how much skin does this person have in the game and how much will he lose if he decides to run? The judge will weigh all these factors along with those previously mentioned to determine just how high the bond will be. Many jurisdictions have averages—amounts that are listed on “schedules” for specific crimes. These are guidelines for the judges to follow on certain types of offenses. Obviously, the more serious the crime, the higher the bond.
Some defendants, however, are not entitled to a bond. If the accused is already on probation or parole for another offense, he may not be entitled to a bond. Probation is community supervision in lieu of incarceration; if you follow the conditions of probation, you stay out of jail. Parole is early release from prison for good behavior; if you follow the conditions of parole, you don’t have to go back to prison. In both cases, committing a new offense is considered a “new law violation.” Anyone under these conditions may be given a bond on the new offense but may be held with “no bond” on the old offense. So even if the family goes to pay a bail bondsman on the new case, the person will not be released because of the probation “hold” or parole “blue warrant.” The family would just be wasting money. A lawyer could, however, approach the judge and ask for a bond on the old case for which the accused is on probation or parole. But then there is the dilemma of whether to spend the money on the lawyer or on the bond—a quandary I will address below in more detail.
If the person is already on bond for another case, that too could cause the same sort of chain reaction leading to a delay in release. When a judge sets a bond and allows a defendant to be released from jail, he has the authority to lay down certain conditions that must be followed if that person is to remain free while fighting his case. These are known as “conditions of release.” Defendants refer to them as being “on probation” even before they’ve been found guilty. Some common conditions of release include random drug testing, electronic monitoring, house arrest, and random visits from pretrial services officers. 18 U.S.C. §3142 (b)(c)(1)(A) (2006). If the charge is driving while intoxicated, an ignition interlock or in-home alcohol monitoring device should be expected. If it is a family violence or assault case, a magistrate’s order for emergency protection (also known as a protective order) frequently is put in place, which will temporarily restrict the accused’s ability to go within a certain distance of the complaining witness’s home or place of employment. Obviously, if the accused and the complaining witness are married and have children together, this can pose significant and unexpected difficulties.
Should any of these conditions be violated, the judge has the authority to revoke the bond and issue a new warrant for the defendant’s arrest, and in all likelihood will double the original bail amount. Bitter v. U.S., 389 U.S. 15 (1967). This means that the accused will lose the original bond and will have to go back to the bondsman to pay double what he paid in the first place.
Immigration status is another factor that may affect a person’s ability to get a bond. If a suspect is not a U.S. citizen, Immigration and Customs Enforcement (ICE) may very well place a “hold” on him until the case is adjudicated. In other words, even if the person is given a bond in the criminal case and the bond is paid, he still may not be released because of an “ICE hold.” This detainer may be placed on him at any stage prior to release. So just before someone is “ATW” (all the way out of jail), an ICE agent may interview him and decide to detain him. This includes legal permanent residents, persons in the United States with a valid visa, and persons with no status whatsoever.
Contacting a Bail Bondsman or a Lawyer
Check the Internet. Ask a trusted friend. As with any other purchase, do not be afraid to shop around. Whether it’s the holiday season or not, most bail bond offices are open 24 hours a day. On average they charge about 10 percent of the total bond amount. In other words, if the bond is set at $5,000, then it’s going to cost you $500 to get Junior out of jail. That $500 is gone. You will never see it again. It is the fee the bondsman charges to put up the whole $5,000. In essence, he is vouching for your boy. The bondsman is saying to the court that he will guarantee the defendant’s presence at trial and if he does not show up, then the court can keep his money. Obviously, the more money that the bondsmen can get from the accused, the better. So depending on the factors listed above, they may require a co-signer or some other form of collateral to insure their investment. They are not just going to put their money at risk based solely on someone’s signature. If the court date comes and goes and the defendant is nowhere to be found, then the bondsman will turn to a second form of insurance: bounty hunters. In many ways they have much more freedom in tracking down fugitives than do law enforcement officials. Suffice to say you do not want to wind up cross-ways with a bounty hunter.
But herein lies a rub: Do you spend your money on a bondsman or a lawyer? Well, as with most things in the legal field, it depends. It depends on the charges and the nature of the offense. It depends on whose court you’re in or in what county. It depends on what resources you have at your disposal. The truth of the matter is a lawyer probably cannot get your son out of jail. His work won’t truly begin until the case goes to court. So my inclination is to say spend your money on a bondsman first. But what if the accused has a bunch of prior convictions? Maybe a felony on his record? What if there’s no chance he’ll be offered probation or deferred adjudication? If the only offer coming from the assistant district attorney is jail time, would he not be better off earning his credit now? What if it’s a drug case and you know he’s only going to get out and use again? These are all questions that have to be answered on a case-by-case basis. If any of these issues apply to the accused, then perhaps the family is better off saving your money for a good lawyer.
On the other hand, if the bond is exorbitantly high, you may need to go ahead and acquire the services of a good lawyer who could possibly convince the judge to lower the bail. You’re not just paying a lawyer for his experience, his training, and his expertise. You’re also paying for his access. Someone with all these attributes will be much better at packaging all the factors mentioned above in such a way that will allow the judge to lower the bond without fear of reprisals or recriminations. Look, no one wants to be the judge who lowered the bond on someone who then went out, got drunk, and killed a family of four in an automobile accident. For judges who are elected, as they are here in Texas, that’s political suicide.
Personal Recognizance Bond
That is not to say that you cannot get released from jail based solely on your signature. In this case, a bondsman—or a lawyer—will have nothing to do with it. If the magistrate reviews all the factors above and finds that your son has no criminal record and fits all the necessary criteria that show he is neither a flight risk nor a danger to the community, the judge may very well release him on a personal recognizance bond. This is basically a signature bond where the accused signs a piece of paper promising to return to answer to the charges against him. This usually happens after an interview with a pretrial services officer. However, if the county you’re in is not large enough to have such an office, the accused may review those factors in front of the magistrate himself and ask for a “PR” bond.
PERSONAL INJURY, ACCIDENT,
WRONGFUL DEATH CASES:
When you are hurt due to the negligence of others you may have a claim for damages. Those damages may include personal injuries, property damage, lost wages, pain & suffering and possibly punitive damages.
In order to sustain a civil action one must have four things: duty, breach, causation & damages. The defendant must owe a duty to the plaintiff, for a example a duty to maintain a safe place of business or to drive carefully. There must be a breach of that duty or a failure of that person to do what they should have done. The plaintiff must have suffered damages and the defendant's breach must be the cause of those damages. In other words, there is a direct correlation between that person's actions and the damages that occurred.
The most common type of case is a car wreck. If someone runs a red light and causes and accident it is extremely important to call the police. The police will make a report of the accident and will likely issue a citation to the person who is at fault. (If no one is issued a ticket it makes the case more difficult.) Then one must determine if the driver has insurance. If the driver has no insurance it will be extremely difficult to recover damages.
The plaintiff can start receiving medical treatments under a Letter of Protection from an attorney. This let's healthcare providers know that they will be getting paid at the conclusion of the case. Once the doctors release the plaintiff from medical treatments all of the medical bills are added up along with lost wages, pain & suffering and any other expenses the plaintiff may have incurred due to the accident. All of this is then put together into what is referred to as a "demand package" and sent to the insurance company. Hopefully, at this stage the insurance company will be willing to settle for a reasonable amount. If not, a lawsuit is filed.
Once the lawsuit is filed then the plaintiff's attorney and the insurance company's attorney will begin the process of discovery. Depositions may be held. Interrogatories will have to be answered. Documents will need to be produced. Experts may need to be hired. Once this is done, the parties will likely be ordered to mediation. The vast majority of civil cases are resolved at this stage. This is where the plaintiff and the defendant go to an objective third party who has nothing to do with the case, to try to hammer out a settlement. However, if the parties cannot come to an agreement then the matter must go to trial.
During all this time it is the attorney who must bear the costs of litigation and if he doesn't win the client pays nothing. On the other hand, if there is a settlement or the attorney wins a jury verdict then he usually takes at least a third. The doctors are then paid a third. And the client takes one third. Of course if a lawsuit is filed, the percentage may go up. This is the most basic kind of case. The more complicated the case, the more complicated the process.
If you have a case like this, time is of the essence. Do not sign anything and do not make a statement to the insurance company until you have consulted with a lawyer!
WRONGFUL DEATH CASES:
When you are hurt due to the negligence of others you may have a claim for damages. Those damages may include personal injuries, property damage, lost wages, pain & suffering and possibly punitive damages.
In order to sustain a civil action one must have four things: duty, breach, causation & damages. The defendant must owe a duty to the plaintiff, for a example a duty to maintain a safe place of business or to drive carefully. There must be a breach of that duty or a failure of that person to do what they should have done. The plaintiff must have suffered damages and the defendant's breach must be the cause of those damages. In other words, there is a direct correlation between that person's actions and the damages that occurred.
The most common type of case is a car wreck. If someone runs a red light and causes and accident it is extremely important to call the police. The police will make a report of the accident and will likely issue a citation to the person who is at fault. (If no one is issued a ticket it makes the case more difficult.) Then one must determine if the driver has insurance. If the driver has no insurance it will be extremely difficult to recover damages.
The plaintiff can start receiving medical treatments under a Letter of Protection from an attorney. This let's healthcare providers know that they will be getting paid at the conclusion of the case. Once the doctors release the plaintiff from medical treatments all of the medical bills are added up along with lost wages, pain & suffering and any other expenses the plaintiff may have incurred due to the accident. All of this is then put together into what is referred to as a "demand package" and sent to the insurance company. Hopefully, at this stage the insurance company will be willing to settle for a reasonable amount. If not, a lawsuit is filed.
Once the lawsuit is filed then the plaintiff's attorney and the insurance company's attorney will begin the process of discovery. Depositions may be held. Interrogatories will have to be answered. Documents will need to be produced. Experts may need to be hired. Once this is done, the parties will likely be ordered to mediation. The vast majority of civil cases are resolved at this stage. This is where the plaintiff and the defendant go to an objective third party who has nothing to do with the case, to try to hammer out a settlement. However, if the parties cannot come to an agreement then the matter must go to trial.
During all this time it is the attorney who must bear the costs of litigation and if he doesn't win the client pays nothing. On the other hand, if there is a settlement or the attorney wins a jury verdict then he usually takes at least a third. The doctors are then paid a third. And the client takes one third. Of course if a lawsuit is filed, the percentage may go up. This is the most basic kind of case. The more complicated the case, the more complicated the process.
If you have a case like this, time is of the essence. Do not sign anything and do not make a statement to the insurance company until you have consulted with a lawyer!