A Wise Judge

A while back I wrote about the case of a young man and how I came to be his lawyer. He was initially caught with a pistol. I didn't represent him on that matter. A PD was able to get him probation since it was his first felony.

But he was put on Gang Probation which is extremely strict. There are curfews, random drug drops, rules about not hanging out with gang members, and a complicity to having your home searched 24/7.

The day after he got out of the county after being placed on gang probation, his home was searched. It was actually less than 24 hours later. A box of ammunition was found in his father's closet. The young man said he meant to get rid of the bullets but had forgotten they were there.

He was immediately arrested and charged with being a felon in possession of ammunition and for violating his probation. Really, he had 2 new cases. This is where I entered the picture.

Whenever someone on felony probation is arrested for a new felony, they are held with no bond. This young man, now my client, was arrested on April 28, 2010. I first appeared in court for him on May 26, 2010. I immediately requested bond be set since it was such a minor case.

And if you read my earlier post, the judge did set a very low, reasonable bond. The father, however, was not able to bail his son out though he had cash in hand. Our county jail messes up records all the time. I made some calls, but got no where.

On the next court date in June, I told the judge about my client's bond woes. And over the State's objection he was released from jail on an I-bond (Individual bond), which required no money. That night, the client went home. This is extremely rare in felony cases and almost never heard of when the defendant has allegedly violated felony probation by picking up a new felony.

The State also elected to prosecute the probation violation rather than the new case. They typically do this since the burden of proof is preponderance of the evidence as opposed to guilt beyond a reasonable doubt.

In theory, if found guilty of violating probation, that person could be sentenced to prison for a time based on the offense for which they are on probation for. In this case, it was 1-3 years downstate.

A VOP hearing was set for yesterday. After reading the police reports again, I felt it wise to just stipulate to those reports. I could see no reason that I needed to question any State witnesses. The facts weren't horrible.

The prosecutors love to stipulate. It's less work for them. The case was called. We told the judge our plan. He asked for opening statements. The State waived. I quickly reminded the judge the facts of the case.

A stipulation was entered that mirrored my opening statement. The State rested. I rested. The State argued. I argued. The basis of my argument was that my client forgot the ammunition was in his house. I argued that it's not as if he went out and committed a new act which violated his probation. He simply forgot they were there.

The judge found him guilty of the probation violation but ruled the State had only satisfied a burden of preponderance of the evidence and not guilt beyond a reasonable doubt. I will explain why he did this in a bit.

For violating the probation, the client was sentenced to 7 days in the county jail, time considered served (he actually was in for 49 days before the judge I-bonded him). And the judge ordered probation to continue. Though found guilty of the VOP, this was a win for the defendant. Time considered served is always a win, to an extent.

The State could have proceeded on the new case if they wanted to send him to prison. But the judge, in finding the State only proved a violation on a lower standard of proof, cut off that route. Thus, the second case was dismissed.

As of yesterday, the client has no more pending criminal matters in court. I could tell he was happy to have all of the behind him since there was a chance he would go to prison.

Despite the meager $100 retainer I took on this case, the father did pay me every nickel he agreed to.

www.schantz-law.com

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