15 August 2006

Felony Letter to Client

Before trial in Virginia a judge asks the defendant several questions on the record to make certain that he understands his rights and is prepared to go to trial. A certain percentage of clients will swear to the judge that their attorney didn't tell them anything. Sometimes this is because they didn't understand, sometimes it is because their minds blank when they're on the spot, sometimes it's because they are playing games.

In any event, one day after two clients back-to-back did this to me, I finally got to the point (about 8 months back) that I developed this letter in order to have a record that I had explained to each client what is going on. It's not meant to take the place of an in person visit; it's just supposed to head off client saying he was never told this or that.

I'm at home and this is a draft that I have on my thumbdrive. The actual letter was polished a bit more and is on the secretary's computer at the office. Still, I think this beta version pretty much hit all the points.

+++++++++++++++++++++++++++++++++++++++++++++++



Good Day,

You have been charge with the following felonies:

Case Number . . . . . . . . . . Charge . . . . . . . . .Class
XXXXXXXX . . . . . . . . . . . .XXXXXX . . . . . . . . .XXX
YYYYYYYY . . . . . . . . . . . .YYYYYY . . . . . . . . .YYY
ZZZZZZZZZZ . . . . . . . . . . .ZZZZZZZ . . . . . . . . ZZZ

Felonies carry the following possible penalties:

Class . . . . . . . . . Imprisonment . . . . . . . . . .Fine
6 . . . . . . . . . . . Up to 5 years . . . . . . . . . Up to $2,500.00
5 . . . . . . . . . . . Up to 10 years . . . . . . . . .Up to $2,500.00
4 . . . . . . . . . . . 2-10 years . . . . . . . . . . .Up to $100,000.00
3 . . . . . . . . . . . 5-20 years . . . . . . . . . . .Up to $100,000.00
2 . . . . . . . . . . . 20-life . . . . . . . . . . . . Up to $100,000.00
1 . . . . . . . . . . . Death or life in prison . . . . Up to $100,000.00

In most cases the judge can suspend part or all of the time imposed. However, in some cases, particularly firearm charges, there will be time which the judge cannot suspend.

Trial Procedure

1). Pretrial Hearing

At this hearing the judge decides whether or not you should have bond. The judge also determines whether you need a court appointed attorney.

2). Preliminary Hearing

At this hearing the judge is going to decide if there is enough evidence for a trial in your case. You will not plead guilty or not guilty.

Prior to the preliminary hearing the prosecutor may offer a plea agreement reducing the charge to a misdemeanor. This is entirely the choice of the prosecutor. I cannot force the persecutor to offer a plea agreement. If the prosecutor does not offer to drop the charge to a misdemeanor the judge cannot decide guilt or innocence on a felony. He will only decide if there is probable cause to go to trial; this means if there is any reason to think you might be guilty the judge will send the case to trial (even if the prosecutor cannot prove the case beyond a reasonable doubt). Because he does not have to prove his case beyond a reasonable doubt the prosecutor my not present all his evidence, just enough to get the judge to allow a trial.

3). Docket Call

This is your first day to appear in Circuit Court. On this day the judge will tell you when your trial date will be. Unless I send you a letter with your court date and telling you that you do not have to come t court or you are in jail, you must come to court for this hearing.

4). Trial

This is the day upon which a judge or jury shall decide if you are innocent or guilty.

a). Bench trial ("judge trial")- a bench trial usually proceeds like this

I). Not guilty plea- You will stand next to me and the clerk will read the charge. You will plead "not guilty". The judge will ask if you want a trial by jury or by the judge. You will tell him you wish to have a trial by "judge". The judge will then ask you questions to determine if you understand the charge and are pleading not guilty without someone forcing you to plead not guilty.

The prosecutor will present his evidence first. Some evidence will be paperwork or pictures or physical items (like a pistol). Many times there will be a witness. The prosecutor will question the witness first. I will then question the witness. Finally, the prosecutor will question the witness again.

After the prosecutor has finished I may ask the judge to throw out all his evidence. After that we can present evidence on your behalf. Usually, this will be mostly witnesses. This time I will ask questions first. The prosecutor will then ask questions. I will get to ask the last questions.

After we have presented our evidence, I may again ask the judge to throw out the evidence. Then the prosecutor will make his argument about why he believes you should be convicted. I will then give the reasons you should not be convicted. Then the prosecutor will get to make a final argument. After that the judge will decide whether he believes you are not guilty or guilty.


II). Guilty Plea- You will stand next to me and the clerk will read the charge. You will plead "guilty".

The judge will ask you several questions. Many of them will basically be "has anyone forced you to plead guilty?" He will also make sure that you understand that by pleading guilty you will waive the following.
1). The right to a jury
2). The right to appeal
3). The right to cross-examine witnesses
4). The right not to testify about this case
5). The right to present a defense
Different judges will ask other questions. They will usually want to know if you understand what the prosecutor has to prove and if we have talked about the case. He may also ask you if you understand what the sentencing guidelines are, that he, the judge, is not required to follow them, and the maximum sentence you could receive.

If there is a plea agreement the judge will ask you if you understand he is not required to accept it. If he does not accept it you will have the option of withdrawing your guilty plea and going forward to trial or proceeding with a guilty plea without the plea agreement. The judge will sometimes ask you what you are getting from the plea agreement.

After the judge has finished asking you questions, the prosecutor will summarize the evidence. The judge will then ask me if I agree the evidence would be sufficient for a conviction. After that the judge will make a finding of guilt and schedule a sentencing hearing. If there is a plea agreement the judge may accept the terms of the agreement, reject the plea agreement, or wait until after a presentence report to make that decision on the date of a sentencing hearing.

b). Jury Trial- Should you take a jury trial? I prefer jury trials. However, because of the way juries operate in Virginia, I can almost never recommend a jury.

It is my opinion that in most cases is more likely to find someone not guilty than a judge. However, this will vary depending on the location. It is commonly thought that a jury in a city, such as Richmond or Petersburg, is less likely to convict than a jury from a city like Colonial Heights, suburbs like Chesterfield or Henrico, or rural counties like Hanover or Amelia. As well, it is impossible to predict exactly who will be on any jury and how they will vote. Remember, just because a jury is more likely to find you not guilty does not mean it will find you not guilty. If a judge is 90% likely to find you guilty a jury may only be 80% likely to find you guilty, therefore, a jury is still probably going to find you guilty. On the other hand, jurors finding fresh point of view to a trial and may believe something a judge would not or put less faith in the statements of police officers.

The main reason that I cannot recommend a jury trial is because juries sentence in Virginia. This is different from most other states and is the reason most people do not take a jury in Virginia. Year after year, the Virginia Sentencing Commission report that juries sentence harder than judges. I believe this is for 3 main seasons. First, juries cannot suspend time. For example, if you were convicted of a class 3 felony the jury must sentence you to at least 5 years, a judge could suspend past of that 5 years (all felonies except class 5 and 6 have mandatory time like this). Second, the jury is forbidden by Virginia law from seeing the sentencing guidelines. This means that while a judge will have an idea as to what an appropriate sentence is the jury will not. Third, jurors are not people used to sentencing people whom they believe to have broken the law. In other words, a judge may have sentenced 20 people and one on grand larceny charges, 40 people on possession of a drug, in the last week. The judge may not think too much about sentencing another felony. The jury has only seen one case and it has nothing to compare it to. The only thing they will have are copies of any prior convictions because the prosecutor is allowed to show them your convictions during the sentencing hearing.

III). Jury Trial Procedure- Come to trail in nice, conservative clothes. If you are incarcerated and cannot get clothes contact my office and we will try to help you.

Before the trial you will be brought out and asked how you plead. You will say "not guilty". Then you will be asked if you want a judge or jury. You will say "jury". Then the judge will ask you some questions to make sure you understand what you are doing. The potential jurors will then be brought into the courtroom. Of these at least 20 will be called and sit in the jury box. The judge will then ask them some basic questions to make sure they are qualified for jury duty. Then the prosecutor will get up and ask some questions. After the prosecutor, I will ask the potential jurors questions. After the questioning, a potential juror may be thrown off the jury "for cause". However, this is unusual and a juror must be proven hostile before being removed; court do not like removing people for cause.

Next will come peremptory strikes. The prosecutor will mark one name from the list of 20. The list will be handed to me and I will strike one name. The list will be handed back and forth between the prosecutor and me until we have removed all but 12 names from the list. If you have anyone you want off the jury make sure you tell me before we mark names off. All the potential jurors will be released except for the 12 who are now the jury. Next are the opening statements. The prosecutor will get up and tell the jurors what he thinks will happen in the trial. Then I will get up and tell the jury what I think will happen in the trial. Remember, the opening statements are not evidence. They are just statements of how both sides hope the trial will go.

The prosecutor will present his evidence first. Some evidence will be paperwork or pictures or physical items (like a pistol). Many times there will be a witness. The prosecutor will question the witness first. I will then question the witness. Finally, the prosecutor will question the witness again.

After the prosecutor has finished I may ask the judge to throw out all his evidence. After that we can present evidence on your behalf. Usually, this will be mostly witnesses. This time I will ask questions first. The prosecutor will then ask questions. I will get to ask the last questions.

After we have presented our evidence, I may again ask the judge to throw out the evidence. Then the prosecutor will make his argument about why he believes you should be convicted. I will then give the reasons you should not be convicted. Then the prosecutor will get to make a final argument. Then the jury will go into the jury room and decide if you are guilty or not guilty.

If the jury finds you not guilty the trial is over. If the jury finds you guilty there will be a sentencing hearing.

The sentencing hearing will go much like a mini trial. There will be an opening statement by the prosecutor followed by my opening statement. Then the prosecutor will put on his evidence; in most cases this will be the prosecutor reading any convictions to the jurors in a dramatic way. I will put on any evidence we have. I will not usually put a defendant on the stand because if you say anything which the Court of Appeals can read as an admission, such as "I'm sorry") you can lose your right to an appeal. Then the prosecutor will argue to the jury, I will argue to the jury, and the prosecutor will make the final argument to the jury. Then the jury will go back, decide the sentence, and come out and announce it.

One thing to remember: in Virginia both the prosecutor and judge can ask for a jury, even if you do not want a jury. The only way to keep the prosecutor or judge from having a jury trial is to plead guilty; if you plead guilty you must be sentenced by a judge.

5). Sentencing Hearing- If you are found guilty there will be a sentencing hearing.

a). Presentence Report- Prior to the hearing you should be interviewed by a probation officer. He will write a presentence report telling the judge about your life and your criminal record. Remember, the judge will read this report before we have the sentencing hearing, it will be his first impression. If there are problems in your life, or responsibilities you have, or things you have been doing to improve yourself, or future plans, or anything else you think might help you if the judge knew about them tell the probation officer about them so that he can include them in the report. There is no guarantee the probation officer will put it all in but you should try.

b). Sentencing Guidelines- The probation officer will also fill out the official sentencing guidelines; any guidelines I, or anyone else, have done for you are estimates the one from the probation officer is the one the judge will pay attention to. The guidelines are based up what you have been convicted of in the trial and your prior record. Every prior conviction will increase the recommended sentence, but some will increase it more. If you have been convicted of a violent felony in the past it will add quite a lot of time to the recommendation. The recommendation will have a low end, a high end, and a midpoint. For example: a recommendation could have a low end of 5 years, a high end of 7 years, and a midpoint of 6 years. Most of the time the judge will sentence within the guidelines and quite often the sentence will be the midpoint. However, the judge is not required to sentence within the guidelines. He may sentence lower or high than the guidelines and you cannot appeal the face that he did not follow them.

c). The Hearing- The prosecutor will provide any evidence he has. I will provide any evidence on your behalf. We will then argue about what sentence you should get and the judge will decide what sentence to impose.

If you were found guilty and sentenced by a jury the judge can suspend part of your sentence during a sentencing hearing. However, the Virginia Sentencing Commission reports every year that judges do not often do this and that on those few occasions when they do they do not reduce it as low as the guidelines recommend.

6). Post Trial

a). Motion to rehear- If evidence is found within 21 days which could not possibly have been found prior to the trial there can be a motion for a new trial. Evidence which would not possibly have been found is usually scientific (DNA).

b). Appeal- Within 30 days of the sentencing hearing you have a right to appeal unless you pled guilty. Appeals take a long time and sometimes years. The Court of Appeals does not have to listen The Court of Appeals is more interested in the law than the facts of your case. If the appeal is based on the judge (or jury) deciding to believe the policeman instead of your mother the Court of Appeals will probably not take your case. If the appeal is because the judge decided, despite my argument and over my objection, to not allow your mother to testify it is more likely the Court of Appeals will listen to the argument

c). Habeas Corpus- You can petition the Court within 2 years of your sentencing or one year of your appeal being denied for a right of habeas corpus. I cannot represent you in this and recommend you speak to another lawyer before filing one of these.

7). Remember, in a trial there are 4 choices which are your alone to make:
1). Do you want an attorney? You have already decided to have an attorney or I would not be your attorney.
2). Will you plead not guilty or guilty?
3). Will you have a jury trial?
4). Will you testify?
I can tell you what I think you should do but you will always make the final decision.

Hopefully, this letter will help you understand what is going on in your trial. If you have any questions please do not hesitate to make an appointment to come by the office. If you cannot do this please remember that my office takes collect calls on Wednesday from 9 a.m. to noon.

Respectfully,



Ken Lammers Jr., Esq.

3 comments:

Anonymous said...

Typo:

"I cannot force the persecutor to offer a plea agreement."

Don't be so hard on Mr. McKenna, you will be joining his people soon!

Milbarge said...

It's a good letter, but re: habeas corpus, the state limit may be two years, but the federal limit is only one. So, generally speaking, they have to file within one year in state court (i.e., more than one year before it's due) in order to toll the time limit in federal court. As you might imagine, this trips up a LOT of prisoners who hear "two years" and think they have plenty of time.

Daniel said...

Stop the presses! Where is my editing credit? ….just kidding, it’s a good letter