I feel like sharing a frustration. This type of story is sadly too typical in my day to day professional life. So, I feel the need to vent a little.
This summer I was hired to represent a young man. I represented his cousin in 2009. The young man was on probation and had picked up a new case, which also violated his probation.
I am going to try and tell both the police and the client's version of the story together so you can see how silly this is. The police were driving down the street. They see two male blacks inside of a car with the doors open. My client was not one of the boys in the car, but was standing close by eating a piece of pizza. The car in question was his mother's. The boys inside the car were installing a car stereo.
The police drive by and do nothing. My client saw them. The police came back around the corner with blue lights flashing. My client was grabbed and thrown on the back of the police car. He was frisked and searched. He was in possession of nothing illegal.
The police claim they saw a burglary in progress. They allege my client was inside the car and made a "furtive" movement towards the center console when the police approached. The police searched the car. A plastic bag was found in the console. In the bag were a few live 9mm rounds.
The police arrest my client but he doesn't know why. The cops ask him to give them a gun (this is very typical). If he does, they will let him go. He calls a friend who's in a gang. He tells the friend he needs him to put a gun in the alley but doesn't say why at first. The friend asks why he needs the gun and is finally told it's for the cops and to keep him (the client) out of jail.
The friend takes a handgun and puts it in the alley where he was told to put it. The police go and get the gun. But the client is charged with being a felon in possession of ammunition and sent to the county jail. Because his prior felony was weapons related, this new case is a Class 2 felony, or 3-7 years in prison.
I am hired after the preliminary hearing but before the arraignment. I go to the jail. He tells me the story. I appear in court at his arraignment in August. We plead not guilty. The case is continued to September.
Because the client was on probation when he picked up this new very questionable case, he now has two live cases. He had a violation of probation (VOP) and the new felony because of the bullets. And the State gets to pick or elect which matter to prosecute.
The State had a real problem with the new case. It was a crap arrest. It would probably sustain a motion to quash arrest and suppress evidence. If that happened the new case would be dismissed and the VOP would follow. The client would get out of jail and not go to prison.
Naturally, the State elected to prosecute the VOP because it's easier for them to win. And they wouldn't have to fight me over the legalities of the new case. You might be asking: aren't you talking about the same thing? Well, sort of.
The burden of proving a probation violation is merely preponderance of the evidence. Or to put it another way, more likely than not. This is a very, very low standard compared to guilt beyond a reasonable doubt in a normal criminal case.
The State offered 3 years concurrent for the VOP and new case. That offer was rejected. I set the case for a VOP hearing in November. I figured I had nothing to lose. I would put my client on the stand and let him tell the judge his side of the story. I didn't want to conference the case with the judge on the new Class 2 charge because the judge would have no option but to give him 3-7 years.
The November court date came. The State finally looked at the file because they couldn't figure out why we were having a VOP hearing (they are not that common). And then they remembered that fighting me toe to toe on the new case wasn't a good idea. The State answered "not ready" and the case was reset for hearing today, December 22.
After the hearing was rescheduled I spoke with one of the prosecutors in that courtroom. He was 2nd in charge at the time. We tried a case against each other earlier this year. I lost. But this guy and I are very nice to each other. I told him that 3 years on this new case was total crap. It made no sense and would be a complete miscarriage of justice. I reminded him that my client helped the cops recover a gun but 4 months later, was still in the county jail.
To his credit he said he would consider reducing the new case to a misdemeanor. We could plead guilty to the misdemeanor and the VOP. The sentence would be "time considered served". And the client would get out of jail that day.
It was actually me that suggested this idea. I don't want my client pleading to yet another felony for something I believe he's probably innocent of. He's only 19. I fashioned what I felt was a reasonable disposition based on the questionable new case.
The assistant prosecutor told me he would have to run it by his superior. A week later he called me. His boss wouldn't go along with it. Damn. Really? Ok, set it for hearing in December. We will put it on and see what happens. Fine. See you then. Wrong.
Since the last court date, the judge retired. All of his cases were split up between 3 other judges. The prosecutors were reassigned. I knew the judge was retiring. But no one knew what was going to happen to his cases.
Before heading to court today, I was slightly optimistic. I knew I was getting a new set of prosecutors and hoped someone would listen to reason. I even let myself think that maybe the client would be home for Christmas.
Sadly, I was wrong. The new prosecutor in charge wasn't there. Neither was the judge. The prosecutor that was there hadn't even looked at the file. I took him outside of the courtroom and explained what I wanted. I was told he didn't have the authority to do what I wanted.
And, oh by the way, we can't answer ready for hearing today either because it's a new file and there's no judge anyway. What little hope I had was crushed. The client actually took it better than I did. So did his mother. Some people don't expect the system to work. They don't expect fairness. They don't expect real justice.
Well, I do. Or at least I once did.
Let's assume for a minute that the police really did recover bullets from the car. And let's further assume they were my client's. Let's also add that this was all done via proper, lawful police work. Is all of this really worth a minimum 3 years in prison? Should the burden of proof on a probation violation really be more likely than not as opposed to beyond a reasonable doubt?
Why is the law constructed so people on probation are so easily set up to fail? I am tired of the cops putting crap cases on people on probation. I see this time and time again. The police roll up, throw some guys on the car, and stick a case on the person who is on probation or parole. The ones on probation go to the county jail. They are violated and held with no bond. Those on parole go back to prison.
After all, they're convicted felons. Who will believe them anyway? When they speak on their own behalf they lie. But when they come to court to testify for the State they are magically credible.
What really upsets me about this case is that but for the probation violation, I could probably get this case dismissed. It's very weak. But since the client was on probation somehow the law changes and most of his constitutional protections are thrown out the window.
And I don't get it.
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