Retainer
Andy
On this episode of Fighting the State with the attorneys for freedom, we're looking at what happens to you in the criminal case, pre-charge. Stay tuned. This is attorney Andy Markell and attorney Mark j Victor, and we are here to kick off our fighting the state series. Mark, how you doing my
Marc
Friend? I don't know man, I'm still kind of kicking around. Our second choice to
Andy
Name the series. Yeah, we were kicking around different options for the title of the show and we came up with some cool ones like slap the state or skirmish with the state or some other things like that. Some stuff involving fighting the government, but there was only one suggestion and it was yours that made everybody in the room bust out laughing. What was the name that you proposed for this series?
Marc
Welcome to Punch the State in the Face with Mark, and
Andy
It was a close second.
Marc
It's very close, man, because it's sketchy. Punch
Andy
The state in the face. It's
Marc
Snappy, don't you think? I
Andy
It's definitely
Marc
Maybe
Andy
People. It's memorable. Yeah.
Marc
Punch the state in the face with Mark and Andy
Andy
Might be interpreted by the Bar Association as encouraging violence. We might hear from them. Instead of that, let's just avoid, let's just call it second, maybe put it on a T-shirt at some point and let's just introduce the show as fighting the state with the
Marc
Attorneys for freedom. Alright man, let's get to it. Let's talk about fighting the state.
Andy
Alright, well we're going to start at the beginning, which is beginning is a very good place to start, which is what happens before a formal charge is filed. What happens when there's maybe an active investigation? What happens before an arrest? A lot of people will call us at this stage of their case like Mark and Andy. There's just been an incident, maybe a shooting, maybe an arrest, maybe something where they've had some interaction with the police or maybe an incident happened and they haven't even interacted with the police and they suspect that the police might get involved. Yeah, there's
Marc
A lot of different ways that these things can get started. I mean, it's pretty common that a case can get started, right with an arrest, right? Something happens, police come to the scene, police make an arrest, drag you to the station and you get fingerprinted, photographed. Sometimes you get booked and sometimes you get released right there from the police department and then the case can either proceed, so a complaint could be filed, preliminary hearing case could go to grand jury, or the case can be what we sometimes call scratched or sent back for further investigation. This can happen in a shooting case as well. And in fact it's pretty common in a shooting case because sometimes a prosecutor will get the police reports, say this one's kind of a close call. I want to look at it a little bit closer before I decide what kind of charges to bring. Or you could have a situation where say there's a victim and the victim's in the hospital victim may or may not die, victim hasn't died yet, so you could charge an aggravated assault if you charge an aggravated assault and defendant comes into court and says, I'll plead guilty, and then the guy dies, sorry, you can't bring that murder charge. So sometimes a prosecutor might say, you know what? I'm going to put the case on hold for a
Andy
Little while and not only that, I figured I'd just add something. When you're talking about waiting to see an outcome with the victim, for example, and this is you just described something in the person was injured and might die, but it might be they know that the person's injured, they know they're not going to die, but that person, we may not know the extent of their injuries yet. That's right too. They may be, for example, planning on making a restitution request to pay them back for their hospital bills and the amount of their hospital bills is at that point unknown. So the state doesn't know. They're basically waiting for the medical information to come back to see what sort of a criminal restitution or money damages request they plan on making. And sometimes in many different statutes, the amount of damages definitely affects the level at which they charge the crime.
Andy
For example, in theft cases in most jurisdictions, the felony level goes up essentially with the more that was stolen. Same with fraud cases, things like that. And so sometimes when cases kick off and even an initial arrest is made, the prosecutor's still trying to figure out the extent of the damages. But there's also other situations, even without an arrest where a client is calling our law firm and saying, Hey guys, help. I think I might be charged with a crime. It may have nothing to do whatsoever with the police at all, right? It could be as we often receive calls, Hey guys, I just fired a gun and I didn't see anybody around and there was maybe somebody here, maybe a witness, but they didn't come and talk to me. I don't know if the police were called because of the thing that I was just involved in. What should I do? So in other words, there are lots of different varieties of pre-charge cases.
Marc
It's not uncommon that somebody will call our firm and say, I got a call from detective, so-and-so at the police department and before I call the person back, I thought I'd call you guys. I always say good choice. Sometimes they say, I came home and there was a card on my front door detective and on the back it says, please call me or something like that. So we call this at our firm, and so these cases are fairly common. I mean we have a pretty good list of pre-charge cases. In fact, we usually have a paralegal at our firm assigned to do nothing but pre-charge cases. It can be a big job. And so when somebody comes in and they have a strategy session with us and they tell us about some situation, we might say, you know what? There's nothing to do right now.
Marc
If I feel like there's a pretty good chance that there's not going to be charges or the charges that come are going to be pretty small, I might just say, you know what? Call us when you have a problem. Nothing to do right now. If on the other hand I feel like, oh, this person's definitely going to be charged or I'm not sure, but if they're charged, it could be a really serious case. Then I kind of err on the side of saying, let's do a pre-charged case. We do a fee agreement. It says you're hiring us to do pre-charge. Talk about some of the things we do once we get that fee
Andy
Agreement. There's a whole bunch of things that you get when you are doing a pre-charge case from our law firm and it's worth its weight in gold oftentimes because taking preventative measures before the charges show up. Anything that can potentially keep you from getting charged or convincing the state that when they do charge the case to charge you as a lower crime, perhaps that's all work that's weighed in gold for sure in being proactive at that early
Marc
Stage. Yeah, I like to tell people there's really twin gold here when we take a pre-charge case goal number one, let's do everything that we can do to see if we can convince that prosecutor not to bring charges or if they're going to bring charges, maybe we can get them to bring lower charges. Number two, plan for the worst just in case they decide. I mean, because I always tell people, look, they don't have to send you a summons in the mail. They could come to your house in the middle of the night and say you're under arrest. And so we do both things. So often we will launch our own investigation. Sometimes there are important witnesses out there. Nobody owns the witnesses. So we like to get out there and be the first ones to lock in and interview right before the prosecutor or a police officer gets ahold of them. And then we like to say sort of sandpapers them, gets them locked into a particular version. Sometimes we can do the interview and maybe if we like what they're going to say, we may even record that interview and lock in their testimony. Yeah,
Andy
That's all really important stuff. I think it would be helpful to kind of go through the chronology and the order of a pre-charge case rather than just listing all of the things. So many things that we can list. The idea of this series I think is to kind of let people know an insider's look of the justice system. And so I think it's helpful to kind of lay out the chronology. So first and foremost, you come into our office and we decide that we want to help you and that we think it would be beneficial for you to do a pre-charge case. First of all, we got to let the state know that we represent you. And so what that often involves is a letter of representation. They're not going to talk to us unless they have some reason to believe that we represent you. So this is really, really important right here to notify not only the police department involved in the case and sometimes oftentimes there are multiple police departments involved in the case. And then we also have to figure out, and this is sometimes a tough question, is this state or federal law enforcement that we're dealing
Marc
With, even if it's state, there can be different agencies. If there could be a county attorney, there could be an attorney general who brings cases
Andy
City attorney. That's
Marc
Right. If it's a misdemeanor. So you really, and if
Andy
We're dealing with the feds, which branch of the feds are we dealing? Which agency are we dealing with? There's so many questions and we
Marc
Like to do several things in that the
Andy
Attorney general's office is another state one that a prosecution can be forwarded to.
Marc
One of the things we like to do in that letter is essentially say, look, if you decide to bring charges, we represent this person and we will bring this person in. You don't have to come out and do an arrest. Why is that important? It doesn't mean they can't arrest still, but if they do arrest and we find ourselves at an initial appearance where we're making an argument for release, that's sure powerful. And I've done this on many occasions to hold up that letter sort of exhibit A to our motion to set release conditions, say, look judge way back on such and such a date. I sent a letter to this prosecutor's office and letting them know I represent this person and if they do decide to bring charges, just let us know. We'll bring the person right in. No problem. What does that say to a judge who's thinking about flight risk? It says, look, this person went out and hired an attorney and they got to know it wasn't free. And then second, we offered to bring them in. They didn't even give us an opportunity. It's really a very strong way to make the case to the judge that this person is not a flight risk.
Andy
And there's even something more important from my perspective that happens. It's like magic when you send it in certain jurisdiction, the notice to the state that you represent them, it actually does something legally. It creates a presumption in the law under many jurisdictions laws for a summons as opposed to the dramatic arrest of your client. And so when you put the state on notice, they really got to show legally. They've got to show that there was some compelling reason despite the fact that they were informed, you were represented by counsel and all of those constitutional rights are queued at that point. Despite knowing that we were willing to walk our client in and that they have skin in the game by hiring a private attorney, they've really got to demonstrate to the judge some compelling reason that despite all that, they still wanted to go and arrest the client rather than simply send a summons to their counsel. And
Marc
I've had those letters be helpful even when the letter goes to the black hole in the county attorney's office or the district attorney's office and the individual prosecutor says, I never got copied on that letter. And the judge says, sorry, it's one office and they sent it. It still goes to the intent of the defendant. That's right. So it still gives us really good things to argue at that hearing. I think it can be very important in that letter to put that prosecutor on notice of what we call clearly exculpatory information, right? Because they may only have one side of the story. Sometimes you're dealing with a police officer who's written a report and has decided to leave everything out that was helpful to the defendant or to be fair, maybe they didn't know about those things. And so it can be important to put that in that letter and say, look, here are some facts that are very important.
Marc
If you decide to submit this case to the grand jury, we would like you to present X, Y, and Z. And by the way, don't forget to tell them about the various self-defense statutes. Give them a copy of those things because if that doesn't do that, later on down the line after the person has been indicted, after we get that grand jury transcript, there can be a good argument for what we call a motion to remand to say, Hey, judge, this guy our client, he didn't get a fair hearing at that grand jury because we put that prosecutor on notice right at the beginning about really important exculpatory stuff that tends to show the person did not commit the crime is not guilty of the crime and they failed to present it. It's also a good opportunity if you think you got to defendant who might testify well in front of the grand jury, and this can be a little bit risky.
Marc
So you have a strategy decision to make here to offer the defendant up and say, Hey, the defendant would like to testify in front of the grand jury, or at least is willing to, right? Because the grand jury always gets to decide whether or not they want to hear from the person. But otherwise, a prosecutor will assume that the defendant's going to exercise his fifth Amendment right to remain silent and you can be successful if you've got a sophisticated defendant or soon to be defendant and that person wants to go in and you think you've got a story you could tell the grand jurors that would cause them to not indict the person or maybe to indict on a lower crime. It can be worthwhile to throw that out there in a certain case. So these are decisions you got to make right at the
Andy
Beginning. Not only that, but we have in that letter where we're putting the state on notice of our clearly exculpatory information. In other words, oftentimes our client's side of the story, which ist included in a police report that's forwarded to the prosecutor, will offer to have experts testify. We have on numerous occasions involving different use of force incidents, for example, offered up our use of force expert to testify to the grand jurors and give that side of the story from an expert's point of view.
Marc
So there can be important things that can be done. I mean, sometimes people just wait. They've come in and I've said, Hey, it's a pre-charge. We should probably get going. They say, well, no, I'll wait. And then they come in after they got charged. And you don't want to make 'em feel bad, but it's like, look, we could have done all this stuff way back when and now it can be hard. There can also be issues of preserving evidence we want to get out
Andy
There. Oh yeah, let's get to that in a second. But just to finish, to put a bow here on putting the state on notice of this clearly exculpatory information, so important, and we have had huge wins, just putting them on notice them not presenting that information to the grand jury, us complaining to the judge about it after it's happened, the judge agreeing with us that the state should have presented this to the grand jury, them being ordered back to represent it to the grand jury, and then ultimately at that point, the grand jury saying, oh, okay, we hadn't heard that side of the story before. No indictment, no true bill. We've had literally homicide cases that were turned down because we were able to put them on notice before they went to that initial grand jury. So important.
Marc
Yeah, totally. And just as a footnote, I think it's important to just say we've also had a lot of cases that have resolved at every stage of that process, sometimes we just tell the prosecutor, Hey, there was an issue. We sent this letter way back when and it wasn't presented. We could draft a motion to remand, but how about we don't do that and we do something more favorable for the defendant? It can be pretty embarrassing. Essentially what you're saying is, look, hey prosecutor, you were running the show. The defendant wasn't there. The defense attorney wasn't there, the judge wasn't there. Your job was to present the thing in a way that's fair and you blew it. And if that judge agrees, they look really bad.
Andy
A remand is usually a bad moment for a prosecutor.
Marc
So you can draft up the remand motion and send it to the prosecutor and say, Hey man, I'm going to file this. You can draft it and file it and then put it on hold, which we do sometimes and say, Hey, just hold the thing in abeyance and prosecutor doesn't have to spend time working to try to do a response to this. Maybe we can resolve the case. You can also have them file it. You can litigate it. The judge will normally take it under advisement. That could be a good time to try to resolve the case. So look, when you're fighting the state, you've got to use every possible advantage that you can have that you can make, that you can create to try to get in a few slugs in the face so you can beat them up to try to get your client
Andy
Out. And you got to start swinging as soon as possible if you want to be guaranteed the best result possible. But a couple more things to say on this. First of all, kind of building on something you said earlier, which is, oh, what if we send this letter to the prosecutor and ends up in the black hole in the basement of the prosecutor's office? This is where the rules actually favor defendants in American law because the state is fungible, the state is all kind of one big entity as far as the law is concerned. So in other words, if we put them on notice and we get a time and date stamped email that has all of that information and we have a certified letter, return service type of a letter that shows them on this date and time, we send it to the proper place it was served to the state.
Andy
Sorry, you can't just say, well, sorry, we didn't see that. We weren't aware of it. No, the state is on that. I don't care if the individual prosecutor knew about the letter, the state, the entity that we called the state was on notice. So I think that's really important, but leading into I think an area that you wanted to go into, which is types of things that we do in the investigation ahead of time to close up the issue of putting the state on notice of clearly exculpatory information. Oftentimes that initial letter that we send to the prosecutor, the letter of representation saying, Hey, we represent the client is premature to send them clearly exculpatory information because we know we've not done our investigation at that point. And so that leads into the evidentiary points that I think you were about to dive into. Things that we can do to get information on the case basically before it's charged. It can
Marc
Be really important to get an investigator on the ground to start finding people preserving evidence. Well,
Andy
This one's easier. I always start by calling the detective, Hey detective, or hey arresting officer, I understand you arrested my client. I understand you're investigating my client, and I like to say, help understand. Help me understand what's going on. I want to hear the state.
Marc
Sometimes they won't tell you anything
Andy
Enforcement's perspective, but a lot of
Marc
Times they will. Sometimes they'll say, I would really like to interview your client, which of course we never foreclose. I mean we say, well, look, maybe I don't want to say no, but tell me a little bit more about the case. And nine times out of 10, they'll give you something right
Andy
There. That's right. That's a great strategy with law enforcement because oftentimes they'll be like, look, I don't want to talk to you. Well, okay, backing it up. Most law enforcement has given me information. To be fair, even in active investigations, the majority of investigating officers will share at least a preliminary kind of version of what the state's events are and what the case is. But many of them will say, no, it's an active investigation. However, I would love to talk to your client or maybe I tried to talk to your client and he told me that he was represented and you're representing him, so I'd really like to talk to your client. The strategy here is we say, look, my job is to advise my client on what's in their best interest officer friendly, and so therefore, I'm considering telling my client to come in and talk to you, but in order to do my job and not be ineffective, I need to at least let my client know what he's in for. So give me some information that I can take back to my client. And of course, in our mind, we're thinking we're probably not going to be advising our client to go in unprotected and give an interview. No,
Marc
But I have done it on some occasions. It's
Andy
Very rare. It's
Marc
Rare. It's rare, but it can make sense, right? We don't want to have complete bright line rules. And I can say this too, okay, this doesn't always happen, but I have on several occasions at that very point where I've got a chit chatty officer and we're talking about the case. I'll say, look, officer friendly, do you have enough probable cause right now to get this case charged or to arrest my client? I have had some of those. Will they
Andy
Say, no,
Marc
Not quite, not yet. No, we don't have. Okay, well, that tells me right then
Andy
That's broadcasting. Don't bring your client in or there's no point in bringing your
Marc
Client in. You can only make it worse at this point, if that officer's going to tell me, doesn't that probable cause to charge the case? That means they're trying to get it by talking to our client. You can't improve yourself here. You got to keep your mouth shut. But anyways, any information like that, those things can be absolute gems.
Andy
Then there's obtaining police reports, and there is oftentimes there are some preliminary reports that are available at that point following an arrest or at the beginning of investigation. If it's an open investigation, it's tougher to get the reports. A lot of times these things, even when they're not charged, they're not under a big investigation. It's very simple from the officer's perspective. He showed up on the scene, he made an arrest, he made an analysis on which charges to forward to the prosecutor. He submitted his report, he closed the file, and then he went on with his job. And so at that point, as long as it's not still an open investigation, we can get a lot of those police reports and supplemental reports.
Marc
I also think there are other things you can do for starters, you can get the defendant to maybe see a psychologist. That can be very helpful in the case, you can get a use of force expert going, so you can start maybe getting a preliminary report from them, getting someone who might help on the case. They can sometimes bring issues to bear that you might not have thought of about things that can assist the case. Is there sort of a stray camera out there somewhere?
Andy
Well, yeah. This is something you were going to go into earlier, which is preservation letters, right? Because oftentimes the cops won't collect everything, even if there's a surveillance camera or something like that that maybe wasn't obtained.
Marc
Yeah, say there's a Walmart or something. They're going to keep that camera footage for, I don't know, maybe a week,
Andy
Maybe
Marc
Not that long. Yeah, maybe not. So you got to send them a letter right away that says, Hey, there's been an incident. Here's the day, here's the time. Please preserve this information. You also just to
Andy
Be, you can't always count on the cops to obtain every
Marc
Single, you never count count on the cops to do
Andy
That, right? To obtain every single piece of important information.
Marc
And if you've got a good investigator, the investigator will kind of get that ball rolling. Also, it can be a good time, right? Because we're thinking three dimensionally, right? There may come a day down the road where this defendant not only going to get charged, but might take a plea and we might be standing in front of a judge someday talking about how well behaved he's been and how productive he's been in life. It's a great time. I say to the clients, make sure you got a good job. Maybe two jobs is a good time to get enrolled in school.
Andy
Behave yourself, behave
Marc
Yourself. Let's start positioning you. So I've got a good argument if we get to that sentencing day down the road, you got to start right at the beginning, which is why it's never too soon to even get a mitigation specialist
Andy
In on these cases. That's right. And we often do get mitigation specialists from the beginning as well as bondsmen, right? Because we have a possible arrest or charges coming up. We're going to be at an initial appearance, which is also known as a release hearing. We're not going to talk about that in this video. That's the subject of our next video in this series. But what we will talk about today is what we're doing in the pre-charge to gear you up to prepare you for that initial appearance. And one important one is preparing with a bondsman ahead of time.
Marc
I think it's very important to try to figure out from the bondsman how big of a bond can you post? And so the bondsman will say, well, I don't know. I got to take a look at the property, what collateral they have, this, that, and next thing we call that a bond screening. So we will send our client over to the bondsman, and when we first started doing this, they're like, huh, because apparently not a lot of lawyers do this, but we do this. So we send them over, and then what we really want is information from that bondsman. Okay, mark, I've reviewed everything I can. I'm comfortable putting a bond up of $75,000. That can be the most important piece of information we have when we're heading into that release hearing, which is going to be the subject of part two of fight the state.
Andy
That's right. And then of course, all of those mitigation experts and everything that we were talking about that we oftentimes do in pre-charge can also be used at that hearing. But we'll circle back around to that subject in the next video. Now time to possibly break one of my steadfast rules of don't talk to the cops. If on the other hand, we have the protection of the state in something we oftentimes call a proffer agreement, then oftentimes it does make sense to talk to the cops and what a proffer agreement is, it's basically a contract between a suspect at this point and a prosecutor. So oftentimes maybe I find out that my client has something to say that could be of value to the state, maybe even help them find the right person. Maybe I have an innocent client and they know who the bad guy is and they want to go in and talk and give that information to try to help the cops find who the bad guys. Maybe they think my client is guilty of something that he isn't or guilty of a much lesser crime that they think that he's charged
Marc
With. And this would be a situation where you really can't talk about this without incriminating yourself on that lower level of crime. So this is a mechanism that's pretty routinely used in the criminal justice system,
Andy
And so just what a proffer is, it's an agreement between a suspect and the state, or you can do a proffer anytime, frankly. So down the line, we'll talk about this perhaps how it works between a charged defendant and the state, but at this phrase, it's an agreement that says you can come in and you can talk and you can tell us everything. You speak freely, you be truthful to us. And as long as those things are met, we agree and are actually completely bound by this contract not to use any of it against you.
Marc
And of course, there are some exceptions that you have to go through very carefully in there. But now you switch what your thinking is and you say, put it all out there because we want to say, Hey, this is something he spoke about in the proffer. You can't use it against
Andy
Him. We oftentimes call these free talks, free talk for the reason that you can speak freely and they can't use, they cannot buy contract, use anything against you. Some
Marc
Places call 'em king for a day letter.
Andy
So sometimes it's in our client's interest in order to try to avoid charges or lesson charges to participate in these protected proffer agreements. But I will almost never advise that a client talk to a cop unless we have a prosecutor, somebody with a law degree who works for the state to actually who has the authority to bind the state from using their statements against
Marc
Them. I think it's sad when people sometimes go in and they do these on their own, so the cop will say, Hey, why don't you cooperate?
Andy
I'll make your life easy for you, right?
Marc
Stupid,
Andy
Two
Marc
Years later when they're still doing deals with the police and say, Hey, I think it's time for me to just be done, and they tell the cop, I'm done. Finally, I'm out of gas on this. And then they get charged and I say, did you get anything in writing? No. So yeah, don't ever make a deal with them without having attorney looking out for your interests. You got to plan for the worst. And the worst is that police come to the door, somebody with a badge shows up at your door and says you're under arrest. Well, if that happens, we already know that the thing you want right now is to get out of the cage. It's a bad time to be doing an interview with somebody and to start going back to the office and drafting a motion. These things can happen at two o'clock in the morning, three o'clock in the morning. We call them at our firm, the Late Night Freedom Fight. I know you're smiling because you coined that phrase, I did the late night freedom fight. Both of us have been down to those courts at all hours of the night. Many times making these arguments actually could be really fun to get someone out of custody when you're the only lawyer in the
Andy
Place. Those jail courts are very interesting experiences. Any criminal defense attorney who's been around and has done these types of hearing will tell you they're very interesting
Marc
Environments. Ideally, what you want is a nice drafted motion to set release conditions ready to go. And I've been in this position before where the call has come and I've hustled down to the firm. It's two o'clock in the morning and I got to just make a few little changes. He was picked up on this day at this time and blah, blah, blah. And then we can print that out. Man, you look great when you show up at two o'clock in the morning dressed up with a full suit and a jacket, and you've got a nice polished motion to set release
Andy
Conditions locked and loaded, ready to go,
Marc
Ready to go with exhibit A attached to it. The letter you sent to the prosecutor way back when saying, Hey, we're happy to walk him in anytime. This is almost a guaranteed you're going to get a good result at this
Andy
Hearing. And what's the contents of the motion to modify release conditions? Well, it's all of that good mitigating or good guy information about you stuff to answer the questions that the judge is going to have. Is this guy a flight risk? Is this guy a danger to the community? Does this person have prior convictions? Does this person have a family or a job or things that make it less likely that he'll simply flee the jurisdiction if I were to let him out? So we're going to talk more about that in our next video, but we have to, in order to prepare that, we have to be able to represent a client.
Marc
And I just want to say too, if you're an A OR member and you haven't filled out your emergency contact form, that's what we're talking about. We're talking to you right now. This is why we want you to fill out this form,
Andy
Pause the video and fill that out. Because if a self-defense incident happens by the end of this video and you haven't filled that out, we're going to be trying to figure out this stuff in real time with the cops on the way.
Marc
There's a reason people went with a law firm rather than an insurance company because we know what we're doing. This is what we do. We know the information. What we need always surprises me when a OR clients look at that form and they think, well, are they going to use this for marketing or is it going to go somewhere? Are you kidding? We're a law firm. This is attorney client privileged. We have an ethical duty of confidentiality.
Andy
We would get in a lot of trouble. We were to use it for any purpose. If we were to share any of that information with one person outside of our direct control in our law firm,
Marc
The thought would never cross my mind to use one digit of information in that emergency contact form for any purpose other than if needed in an emergency situation.
Andy
I like my license too much. I really like practicing law, but
Marc
You really help yourself when you fill out that form because look, we've already had some of these, right where people have called the emergency line
Andy
And they're like in our emergency situation, and then we can quickly plug in their name and date of birth and then pull them right up.
Marc
Yeah. How many times have we had it already? We've done the guy didn't fill out the emergency contract.
Andy
We've had a couple of those and I scolded the person and it made it more difficult. Bottom line is it made it more difficult to start the case. We had one last week where the guy was in custody, he had already been arrested, and his girlfriend called on his behalf. And then as it turns out, he didn't fill out his form ahead of time. So while he's in custody without being able to speak to him, at that point, we were trying to dig up all this important information and it just really hamstrung the whole beginning of the case, whereas we could have immediately prepared for that initial appearance. And you're only hurting yourself if you don't give us this information. We offer this service for a reason because it's something that the competing programs, for example, do not offer. We're not
Marc
Confused about why people hire attorneys on retainer. They want the attorneys for Freedom Law Firm to get involved and start kicking ass on their behalf. And that's the reason we have 'em fill out this form so we can be prepared and ready to go. Okay. Now I've said on
Andy
That, I want to talk about one more subject for this video, which is what a lot of this is all kind of aiming towards, which is a conversation with the prosecutor in the case who's making the charging decision. So we like to be very proactive. We like to jump into action as soon as we can. We like to figure out who's making the decisions in these cases. And usually there's a charging attorney in a given county attorney's office or a state attorney's office, and oftentimes they're called a charging bureau or something similar, where somebody with a law degree is looking at the facts of the case and looking through the police reports and evidence and everything that was submitted by the police and making a decision about what charge to bring or what charges to bring, if any, right? They have the right, and they often do, and they look at everything and say, the state can't carry its burden beyond a reasonable doubt on this particular evidence.
Andy
And so pass, sometimes they make that decision. And a couple of important points to dissect this for people at home who are listening who aren't maybe familiar with the justice system, the idea here is that police are the detectives. They're not the people who make a decision on a super big, scary felony. Now, oftentimes, jurisdictions will allow cops limited charging powers maybe to obviously write things like speeding tickets, misdemeanors and everything like that. But the idea with felonies, these things that go on your record possibly forever, these things that cost you your constitutional and statutory rights where if you get convicted of it, you could end up locked in a cage oftentimes for an extended period of time for the rest of your life. The idea here is that we don't trust cops to make the decision on whether or not we're going to bring a felony against a citizen of the United States.
Andy
It has to be somebody who has training in the law. It has to be somebody with a law degree. And so we call that person a prosecutor. So the detectives gather all of the information, they send all of that stuff to the prosecutor, and then the prosecutor assesses all of it. And what they're really assessing is can the state carry its burden beyond a reasonable doubt, which is a very high standard that we're going to spend some time talking about for sure in our trial video towards the end of this series. But they're really thinking. They're trying to predict, based on this evidence that I see, based on everything that I see here in the file, can the state carry our burden beyond a reasonable doubt? And we can tell you from firsthand experience when you hire a lawyer, a good lawyer in this pre-charge state, sometimes we can give 'em a little push one way or the other. We can say, Hey, we want to let you know we wanted to talk to you before you made a charging decision to let you know your evidence may not be as strong as you think it is, or there's something else you should consider before making your charging decision.
Marc
Prosecutors like to brag about their high wind percentage, and most of them have very high wind percentages. But I'd like to tell people, think of it like playing poker, except you get to see the other hand that the other people are having. That's what it is. If you see the other person's got a much stronger hand than you, you're going to say, you know what? I don't think I'm going to play this round. I think I'm going to pass. And that's exactly what we're trying to do, and that's the point you are making. The prosecutor will usually have a standard that they'll say, do we have a reasonable likelihood of conviction? And is their struggle in with that? They don't want to bring cases they're going to lose, right? If it's a close call and they say, okay, well here's a competent criminal defense lawyer who's bringing strong arguments right now, that's going to make it a lot harder for me to get a conviction here.
Marc
It can be the grease that just pushes the needle on the side of no charges. Also, another point, there's something called a pre indictment plea that I've been able to accomplish on other occasions. Maybe you got a case where you say, all right, yes, it looks like my guy committed this crime. We don't really need to go through the runaround where they get charged way up here with a more serious crime so they can make a deal down to what it actually was, because the charge of that serious crime is still going to be on the record. So you can avoid all of that oftentimes and say, look, instead of sending the case to the grand jury without doing any of that, why don't we just negotiate something right now? You can file a complaint and then we'll do a change of plea even on the same day.
Marc
I've done that on many cases too, which keeps all of the charges much lower than an ugly charge at the beginning that sort of pled down because people pull records and they see you were charged way up here with something super serious. You were charged with a second degree murder, okay? You pled it to a negligent homicide. If that's what's going to happen, you're much better just coming in and being charged with a negligent homicide pleading to the negligent homicide. And oftentimes, you can even work out what exactly the sentence is going to be. Okay, well, Mike Guy will plead to the negligent homicide, but we want to guarantee a probation or something like that. You take all this stuff away from your defense lawyer when you don't come in before the charge. Fortunately, everybody who's in a OR has us pre-charge, right? That's right. Because our contract doesn't say you have to actually be charged with a crime.
Marc
It says you need to be charged with a crime or reasonably concerned about being charged with a crime. So people can call us and even as a non-emergency and say, I think something happened. It happened after I signed up, but I think I'm going to be charged. That's much better Now we can do all of this pre-charge stuff and get the case positioned, hopefully in a much better place to maybe avoid charges. But if not, deal with lower charges of maybe avoid the ride to the jail and some time in the jail. It's just a lot of benefits.
Andy
And to minimize the time that you're in the jail, it can arrest is inevitable and impossible to avoid. We want to minimize the time that you're in the jail. We want to be ready to go with a motion to set release conditions. We want to have the bondsman ready to post. Within minutes of having that set, I am sure you don't want to be flipping a phone book around in a jail sale trying to figure out how you're going to get out of the jail
Marc
Stop. I tell people, this is a serious business. We're dealing with your freedom here. Freedom is more important than money. There's no question about that. Freedom should be sacred to you without freedom. Why would you even want to live? And so there's a good argument that freedom is among the most important things. Why would you want to give up any advantage no matter how small? I think of it like a running back on a football field, how they fight for every little last inch of territory on the football field. I wouldn't want to concede any ground. So getting your attorney involved before charges are formally filed, you can't always do it. But if you can, I wouldn't miss that opportunity.
Andy
Absolutely. And we tell people all the time, we make this point all the time. If you are arrested and charged with a felony, you've already lost to some degree in some, you're in the fight. Important sense you've already lost. Even if you are ultimately acquitted, even if you're ultimately acquitted, you
Marc
Won't feel like you won't.
Andy
And all charges are dismissed and they say, all right, congratulations. You can walk out of the courtroom. You won't feel like a winner in some sense. You'll have spent money on an attorney. You'll have spent sleepless nights worrying about whether you're going to live in a cage. You'll have spent time taking off of work to go down and sit in a courtroom all day on numerous occasions, usually over many, many months. And a lot of times there's social stigma that comes with people who are falsely accused, even if they're acquitted. Some people say, well, he was charged and it must have been some kind of a technicality that he got off of him, or something like that. So there's social stigma. I've seen people's familial relationships and friendship. Relationships take a hit just from the fact that being charged, it's a sad thing, but it happens even with reasonable people involved.
Andy
So bottom line is if you can do anything to make sure that you don't get charged in the first place, even if it's a long shot, it's always worth taking that shot. Couldn't agree more. Alright, well we talked about so much stuff already in our first stage, and we're not even at the charging stage. We're yet, our hypothetical defendant hasn't even become a defendant yet. So I think this was a really important episode because I really, really try to emphasize in people don't wait around. If you think that you are going to be charged or there's been an arrest and maybe they've scratched the case, don't take that as time to twiddle your thumbs. This is some of the most important parts, setting up the foundation of everything that's to come and maybe even avoiding everything that was going to come if we weren't proactive and didn't spring into action. So super important to make this video. If you liked it, then throw a like on the video and share it with your friends who need to know this information. Go and check out attorneys on retainer us to learn all about the a OR program and what it can do for you. Learn more about our law firm@attorneysforfreedom.com. And Mark, this is going to be a fun series, man. I'm looking forward to going through this whole process methodically and sharing little tips and tricks along the way. Yeah,
Marc
There's so much to talk about with defending a criminal case and fighting the
Andy
State. Yeah, the only thing that I'm kind of apprehensive about embarking on this big thing, and I realize it more today after filming this episode mark, is that there's just so much, and I feel like we're going to miss a million things here and there and think, gosh darn, I forgot to mention that important thing. Let's just kind of use these opportunities to throw as much of our legal knowledge on the wall as organized as we can for people. And maybe what we'll try to do is in the comments, you guys, if we didn't answer your question about the particular stage of the criminal justice system that we're featuring in this episode, maybe you throw a comment down below and we engage. Alright everybody, until next time, this has been attorney Andy Mark. Until, and attorney Mark j Victor. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=80cJZC5SKhY
Credit: Attorneys On Retainer