Criminal Law Blawgs

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Human beings, as a whole, have a tendency to procrastinate or put things off to another day those tasks that we find unpleasant.  With that in mind, what could be more unpleasant than being convicted of a criminal offense, going to jail, and having an offense on your record that you would have to notify current or future employers about.  Even if you committed the crime, wouldn't it be nice to put off the consequence of that bad choice?

In order to motivate those just entering the life of crime to change their minds and become better citizens, Utah lawmakers have provided such an out.  It is called the "Plea in Abeyance."  This is how it works: a person guilty of a crime admits that they did it by entering a plea of no contest or guilty, but instead of being sentenced within a few weeks, the sentencing is put off for six months to a year or longer.  During this period of time, the conviction for the crime is stayed.  What's more, if you behave yourself during that period of time and fly beneath the radar, at the end of the agreed upon time, you are allowed to withdraw, or take back your plea, as if you never entered it, and all charges are dismissed!  

What's the catch you might ask?  Well, the government is all about helping people reform, and so there is a catch.  Although some plea in abeyances only require that you don't commit new offenses, most require more effort on the part of the person making the deal.  For example, in a traffic charge related to a plea in abeyance, the person who entered a plea needs to take and complete traffic school to earn the dismissal at the end of the abeyance period.  Those charged with drug offenses may have to attend a year and a half or more of a drug court, or participate in other counseling.  If it is a domestic violence charge, anger management classes may be required.  There may even be a community service component to the agreement.  The State is not collecting a fine, but you can be sure they will collect a "plea in abeyance fee" for the administrative costs of the plea in abeyance, that just happens to be exactly what the fine would have been had it been a complete conviction.  As you can see, there are strings attached, and all kinds of conditions can be negotiated that need to be completed in order to get that much desired dismissal.

It should also be noted that not all crimes are eligible for a plea in abeyance.  For example, you cannot get a plea in abeyance for a DUI.  It has been legislatively excluded.  If you drink and drive, no dismissal for you.

I have assisted hundreds of clients in obtaining plea in abeyance resolutions.  If you are faced with a charge, and want to know if a plea in abeyance is possible, or if it will be good for you, give me a call.

A felony conviction can change your life. Consequences of a felony conviction can include:

1.  Losing the right to hold public;
2.  Losing the right to vote;
3.  Losing the right to serve on a jury;
4.  Losing the ability to have a firearm;
5.  Losing the ability to hold certain licenses and certificates;
6.  Losing job opportunities;
7.  Embarrassment, loss of reputation, and more.

When someone has been convicted of a felony, there is hope of having that felony reduced to a misdemeanor.  In the State of Utah, a felony conviction can be reduced to a misdemeanor either at the time of sentencing, or at the successful completion of probation.  The rules for obtaining this kind of reduction are found in Utah Code Annotated section 76-3-402.  A motion to reduce the offense level of a conviction is commonly referred to as a "402 motion."

In a 402 motion, a person can ask a court to reduce the offense level of a conviction by one level.  For example, someone convicted of a third degree felony could ask to have the conviction reduced to a class A misdemeanor.  With the agreement of the prosecutor, a conviction can be reduced by two levels (i.e. from a 2nd degree felony to a class A misdemeanor.)  Misdemeanor offense levels can also be reduced using this law (i.e. a class A misdemeanor can be reduced to a class B misdemeanor.)

A 402 offense level reduction has many benefits.  In addition to the benefits gained from removing an embarrassing felony from one's record, it can also pave the way for expungement qualification, to remove the conviction completely.  The more serious the conviction level, the more difficult it is to expunge a conviction, and the longer a person has to wait to qualify.  One or two offense level reductions can speed up the expungement process by years.

I have been successful in assisting clients in reducing the offense levels to their convictions using 402 motions, and in helping them expunge their convictions.  If you have questions about this process, give me a call.

On April 27, 2013, a bunch of kids were playing soccer in Salt Lake City.  During the game, the referee gave the goal keeper, a 17 year old boy, a warning called a "yellow card."  This ruling by the ref upset the boy, and he punched the 41 year old referee.  The unexpected consequence of the punch was that the referee went into a coma, and a few days later, he died.

The Salt Lake County District Attorney now has the unenviable decision of whether to charge the boy as a man.  Typically, crimes committed by individuals 17 and younger are handled in the juvenile court justice system.  The focus is on reform.  Juveniles are adjudicated, not convicted.  They admit allegations, they don't plead guilty.  They go to detention, not jail or prison.  But sometimes, when a juvenile commits an adult crime, they get treated as an adult.

When I have a juvenile client who is charged with a serious crime, I do all that I can to keep their case in the juvenile justice system.  I once knew a young man who was charged with a serious crime, was tired of the juvenile system and wanted to be tried as an adult.  He thought he would get less time.  Against the advice of his attorney, he had his case moved to the adult court.  He ended up being sent to prison as a teenager.  When I saw the result of his case, I felt it was a foolish tragedy.  Except in the most unusual cases, children should not be treated the same as adults.

If you have a child with juvenile charges, call for a free initial consultation.

In almost every jury trial I've been involved in, one of the questions asked during jury selection involves whether the perspective juror would give police officer testimony greater weight and credibility than a civilian witness.  On many occasions, perspective jurors would honestly report that they would trust police officer testimony more due to their extensive training and their sworn duty to uphold the law.  That perspective is beginning to change.

In the wake of the West Valley Police Department scandal, that resulted in over 100 cases being dismissed, Officers being put on leave pending investigation and the entire drug unit being disbanded, and the Utah Highway Patrol scandal involving Officer Lisa Steed falsifying evidence to get convictions, resulting in the review of over 1000 cases, people are beginning to distrust the police.  A recent KSL News poll revealed that after these events, 66% of those polled indicated that they now trust the police less, while 26% said the recent news did not change their opinion, and 3% said that they were not sure if these events effected their perception of police.  The poll also reported that 6% stated that they now trust the police more . . . I wonder who they work for.

The results of this public perception of police poll may have a positive effect on those charged with crimes, who take their cases to trial.  I believe that juries are going to evaluate police investigations and evidence presented by law enforcement more critically than ever, rather than blindly accepting propositions proposed by the prosecution.  In the end, more innocent defendants should be acquitted, and those who are guilty will have received a fair trial.

The headlines lately have brought attention to an age old problem of what to do when police officers behave poorly, or break the law when they are investigating a case.  In West Valley City, Utah, many drug related criminal prosecutions were dismissed because the police misconduct in investigating the crimes resulted in the prosecutors stating "we no longer believe we have sufficient credible evidence with which to obtain a conviction."

When an investigating police officer knowingly, or inadvertently violates the law, it compromises the investigation and the case.  When evidence is gathered illegally, even if it proves that a person is guilty of committing a crime, it cannot be used in court.  This is called the exclusionary rule, and its intent is to motivate police officers to play by the rules, or have their efforts be wasted.

If you are charged with a crime, and believe that the police officers may have broken the rules relating to properly gather evidence, give me a call.  For example, if police search your house or car without a warrant or permission, any evidence gathered is illegal.  Likewise, if you have been arrested and are interviewed without having your Miranda rights read to you, any statement you made was gathered illegally.

When I review a client's case, the first thing I look for is whether the evidence was gathered legally.  If I believe the officers didn't follow the law, I file a Motion to Suppress the illegal evidence.  I have been successful in State and Federal Courts in litigating Suppression Motions, getting evidence thrown out, and having my client's cases dismissed.  Everyone should play by the rules, especially police officers, and when they don't, there are consequences.

When I was practicing law in California, attorney's would often joke about the "Twinkie Defense." The "Twinkie Defense" refers to a murder case out of the Bay Area where a disgruntled politician killed other politicians, and then beat murder charges in trial because eating too many Twinkies made him temporarily insane. Needless to say that after that case, California changed its laws regarding mental defenses.

I personally did a jury trial a few years ago that focused on the mental competency of a man charged with murder. The defendant charged with murder was found competent, despite some crazy things that he said and did. The key to the case was not so much what he did when speaking to psychologists and experts, but what he did the rest of the time, playing cards with fellow inmates, and how he behaved and talked when he didn't think he was being watched or evaluated.

When someone fakes a mental illness to avoid the consequences of bad choices, it is call malingering. Here in Utah, we have a trial underway involving the kidnapping and rape of a young woman named Elizabeth Smart by a man named Brian David Mitchell. The testimony in the trial to date has shown that, despite some strange behavior by Mr. Mitchell, he knew what he was doing. Today's testimony revealed that he used some of his unorthodox beliefs to manipulate his wife in assisting him.

Is Mr. Mitchell crazy? Probably, but not in a way that reduces his responsibility for what he has done. There is a difference between acting different from the social norm, and being so mentally ill that you are not responsible for your choices and your behavior. The criminal justice system is full of people who do crazy things. The main question to be answered when evaluating a person's competence to stand trial and be held responsible for their conduct is not so much whether their conduct was crazy, but whether they knew what they were doing when they did it, crazy or not.