How Can You Represent Criminals?

We are often asked, “How can you defend criminals”.  We have a form response for that but every so often a case comes along that solidifies why ALL of us, if charged with a crime by the police, are entitled and guaranteed a lawyer and a defense.

In a recent federal case Judge Anita Brody starts her opinion by stating: “James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit.”  As you can imagine, the case did not get any better from there for the prosecution.

You can read the whole case here:

http://www.paed.uscourts.gov/documents/opinions/13d0705p.pdf

In the future, when you are tempted to assume someone is guilty because he or she got arrested by the police, remember James Dennis, and the fact that he got arrested, convicted and sentenced to death for a crime he did not commit.  If it were not for his lawyers, representing a “criminal”, Mr. Dennis may have been executed.

Be careful what you write on Facebook!

Be careful what you write on Facebook!

Recently the Pennsylvania Superior Court determined whether comments made in an on-line forum (Facebook) could constitute the criminal offense of Harassment.

In a case from Lebanon County, Pennsylvania, an 18-year-old girl was charged with the crime of Harassment after posting rude and lewd comments regarding her alleged 15-year-old victim. The police claimed that the comments established the crime of Harassment in that the 18-year-old communicated to or about another person in a lewd, lascivious, threatening or obscene matter, by language, with the intent to harass, annoy or alarm the 15 year old.

The specifics of the Facebook statements can be found in the first two pages of the Superior Court opinion found here:

http://www.pacourts.us/assets/opinions/Superior/out/J-S45024-13o%20-%201015072601679727.pdf?cb=1

The 18-year-old defendant fought the charges and was found guilty by a jury of the crime of Harassment. She then appealed to the Superior Court of Pennsylvania. The Superior Court found that the evidence established that the 18-year-old posted a statement indicating that the victim suffered from a sexually transmitted disease in an online forum and that the statement was viewed by multiple people. The Court determined that the statement was sufficient to prove that the 18-year-old communicated lewd statements about the victim, to other people, and that it was a fair inference that doing so was an intentional attempt to harass, annoy or alarm the victim.  Thus the Superior Court decided that the Facebook comments were criminal and did constitute the crime of Harassment.

The moral of this story seems to be that lewd and rude comments specifically directed at other individuals should be avoided at all costs. In this day and age it is not uncommon for someone to “go off” on another person in an online forum. Those tending to do so, however, should be warned that specifically identifying another person and making lewd and rude comments about the individual, at least in Pennsylvania, can lead to criminal charges. Of course, the best course of action is to simply refrain from any negative, rude or lewd comments that can be interpreted by another person, or more importantly, the police, as being of a harassing nature.

Those choosing to ignore simple codes of decency should not be surprised if they find themselves on the wrong side of the law and seeking the guidance of an attorney to help fight criminal charges.

How to Wreck a Brilliant Piece of Lawyering

Recently a brilliant piece of lawyering was destroyed when the accused decided to try to “game the system” and appeal his summary offense guilty plea after the DA’s Office withdrew all of the misdemeanor and felony charges that had been pending against him.  The moral of this story seems to be that when your lawyer gets you a good deal, don’t go hire a new lawyer and try to get yourself a better deal.

In the recent case from Delaware County, the defendant was involved in an altercation with police that led to felony charges of Aggravated Assault, and misdemeanor charges of Terroristic Threats, Simple Assault and Recklessly Endangering Another Person.  The case proceeded to trial but during the trial the defense lawyer was able to negotiate a plea bargain with the prosecution wherein all of the felony and misdemeanor charges would be withdrawn.  In exchange the defendant agreed to plead guilty to a summary offense of Disorderly Conduct.  So that the defendant would be able eventually expunge his record, the Disorderly Conduct charges were filed by citation at the local District Court.  The defendant pled guilty to a single charge of Disorderly Conduct before the District Judge and was ordered to pay a $100 fine.  The next day the District Attorney withdrew the misdemeanor and felony charges.

The result achieved by the lawyer on behalf of the client was fabulous; to be considered a victory.  However, snatching defeat from the jaws of victory, the defendant hired a new lawyer and shortly after the DA’s Office withdrew the misdemeanor and felony charges, the defendant filed an appeal of his summary offense guilty plea, which the Rules of Procedure entitled him to do.  Of course, the DA’s response was to ask the Court to reverse the withdraw of the misdemeanor and felony charges and to reinstate the more serious offenses.

The Delaware County Court, recognizing the defendant’s attempt to “game the system” dismissed the Disorderly Conduct appeal.  The defendant appealed the dismissal to the Superior Court of Pennsylvania, which ruled that, in fact, the defendant was entitled to appeal his summary offense conviction.  However, the Superior Court also ruled that by effectively acting to avoid the plea agreement that he had previously made with the prosecution, the defendant waived any future double jeopardy claim he might have had if the prosecution refiled the felony and misdemeanor charges.  The Superior Court clearly did not approve of defendant’s gamesmanship and stated that defendant “can weight his options either to forego the right to a summary appeal and affirm the pact that he struck with the Commonwealth, or face the full panoply of charges which the Commonwealth requests to reinstate against him…”

When one takes into account the thousands of dollars this person spent on his summary appeal, the county court proceedings and the Superior Court appeal, the more logical choice would have been to be satisfied with the terrific deal his original lawyer negotiated for him that resulted in virtually all of the charges being withdrawn.

Never Agree to a Search of Your Car

Often clients will come to the office with criminal charges that were filed after the police searched an automobile during a traffic stop.  On occasion the searches were conducted after the police asked for, and obtained from the client, consent to search the car.  Other times the police simply announce they are going to search the client’s car and do so.

After a routine traffic stop if the police ask for consent to search the car the driver should always decline and not allow the police to search, even if the client has nothing to hide.  There are numerous reasons for this but the most important reason is that the driver has a right, granted to him or her by the Constitutions of the United States and Pennsylvania, to not agree to allow the police to inconvenience the driver with a time-consuming search.  The reality is that if the police ask for consent to search, but do not get it, they cannot search the car AND they cannot impound the car, even if they then tell the driver that they can.

A more difficult case is where the police do not ask for consent to search; they just do it and find something illegal inside the car.  When the police decide to search a car without consent during a routine traffic stop the officer must have probable cause to believe that there is something illegal in the car.  If the police reasonably believe that they are in danger, or that a safety issue exists, they may conduct a “protective search” of the passenger area of the car if they have reasonable suspicion to believe that the person subject to the stop has a weapon.

In a recent Pennsylvania Superior Court case, the appeals court upheld the suppression of a gun that was found by police during a routine car stop in Philadelphia.  The car was stopped because of dark tinting of its windows.  The police testified the tinting was so dark they could not see inside the car even using flashlights.  They claimed they felt in danger and so they searched the car for protection.

After the car was stopped the police told the driver to open his windows; he did not immediately comply.  When the windows were finally lowered the police asked for the usual paperwork.  The driver appeared nervous.  He opened his center console and immediately showed a surprised look.  He closed the console, opened his glove compartment and then retrieved his documents.  The police then removed the driver from the car and one of the two officers then searched the center console and found an illegal handgun.  The police argued to the Court that they felt in danger and they searched the car only for their own protection.

The Philadelphia court suppressed the gun finding that the police had no reasonable suspicion to believe that there was a weapon in the car based upon simply a delay in opening the windows, a surprised look and alleged nervousness.  The Pennsylvania Superior Court, in considering the prosecution’s appeal agreed, finding that dark tinted windows and nervousness alone do not suggest a dangerous situation in which the police can conduct a search of a car.  The Court also pointed out that after the windows were open and the driver removed from the car, any danger that may have existed was removed.

The Court wrote, “It is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight or was unaware that he or she was driving above the speed limit. Whether described as nervousness, apprehension, concern or otherwise, forced interaction with a police officer is not an everyday occurrence for the average citizen.”

The police are trained to use people’s anxiousness against them.  As the Court noted, almost everyone is nervous when stopped by the police, even if the stop is only for a minor traffic violation.  If you are ever stopped by the police, and asked for consent to search your car, do not agree.  Also, if the police tell you they will impound your car if you do not agree to give consent to search, do not believe this claim; it is designed to make the driver agree out of fear.  While you will feel anxious and nervous, and may even feel that you “have to do what the police ask”, keep in mind that you have protections that are guaranteed by the Constitution, and nobody can take that protection away from you; not even a police officer.

Criminal Charges & Foreign Defendants

When you, or someone you know, is not an American citizen and is charged with a crime, it is important to follow the steps below to prevent being deported, or removed, from the USA.

1 Hire a Lawyer

Defendants in less serious criminal cases will often defend themselves. If the defendant is not a citizen of the United States deciding to defend oneself is a critical mistake. Criminal convictions can often carry collateral deportation/removal consequences for the foreign defendant that were never anticipated. Criminal defense lawyers can provide valuable advice that may not prevent a conviction but may avoid deportation/removal consequences.

2 Do Not Take Immigration Advice from the Police

In minor criminal matters the police will often escort the defendant to a preliminary arraignment or be present at the preliminary hearing on behalf of the prosecution. The foreign defendant may not yet have spoken with or hired a lawyer. In an attempt to resolve the case during the early stages of the prosecution the foreign defendant frequently is offered a plea agreement that places the defendant on probation. The desire to avoid jail is overpowering and if this chance is offered along with assurances from the police that there will be no immigration consequences, foreign defendants may feel secure in accepting probationary plea offers. The foreign defendant needs to understand that the police or the prosecutor does not represent the foreign defendant. Moreover, the police and prosecutors often do not understand the immigration law. The foreign defendant should not accept any plea offer until he or she has spoken with their own lawyer.

3 Ask Specific Questions and Get Detailed Answers from Your Lawyer

Once the foreign defendant has hired a lawyer he needs to discuss the charges and the immigration consequences of those charges with the lawyer. State charges that seem minor may carry severe immigration consequences. In addition, the immigration consequences sometimes make little sense in the context of state criminal law. For example, a foreign citizen typically will not be deported for a conviction of possessing marijuana for personal use but may be deported for possession the pipe that is used to smoke the marijuana, even if the drug itself it not present. This situation is illogical to the criminal defense attorney in the context of state criminal law, but it illustrates why a foreign defendant needs to review not only the state criminal charges with the lawyer, but also the federal immigration consequences of conviction.

4 Protecting Yourself at Court

Once the foreign defendant feels confident that he or she is aware of any potential immigration consequences of a conviction and the case is at Court, the defendant must be sure to ask appropriate questions on-the-record. In Court, during a guilty plea for example, the foreign defendant should ask for clarification from his own lawyer as to whether or not the plea will carry any immigration consequences. If the lawyer is not willing to advise the client the he is protected from deportation, then the plea should not be entered and the case delayed. Foreign defendants should never plead guilty to offenses that result in deportation/removal from the United States. The defendant should also be sure that the Court in which they appear is a court of record, meaning that there is a court reporter who transcribes what is occurring. If there is not a court reporter or transcription service present the foreign defendant should not agree to a plea.

5 What to do if the ICE Man Comes

Following conviction, by plea or trial, foreign defendants may be placed on probation and permitted to return to their place of residence. If the conviction is for a deportable offense immigration officers (ICE) may not appear for days or weeks. If ICE does take the foreign defendant into custody because the conviction carries immigration consequences, the foreign defendant must contact a state defense attorney or the local public defender immediately and arrange to file a post conviction appeal. There are usually strict time periods and deadlines that must be followed in post conviction appeals and therefore time is always of the essence.