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STANDING TRIAL  - FACING CRIMINAL CHARGES

THE PROCEDURAL STEPS         POWER OF THE DISTRICT ATTORNEY       BAIL OR JAIL WHILE YOU WAIT?

COMMUNICATION WITH COUNSEL           THE RIGHT TO A LAWYER       PUNISHMENT AND RAP SHEETS

MULTIPLE/HABITUAL OFFENDERS    ARREST AND CHARGES

 

The two hundred plus years of American History have brought us to this time in which Criminal Justice is much more than a matter of a small community defining and punishing crime.  Along with society, the process of criminal procedure can be complex, difficult and often unfair.  The system is under great pressure due to caseloads and lack of resources.  There are not enough workers in any segment of the system, from the District Attorney to the Public Defenders to the Judges.  An entire body of laws controls the procedure in court by which people are taken into custody, charged with a crime, and subject to punishment.  

"Trial" probably comes from ancient times in which a King would subject people to a test in the presence of his "court" (his closest allies, friends and family) which would be used to decide a case.  Eventually we got rid of most Kings, and the twelve apostles became a model for our JURY, which decides a criminal case unless procedures change in a case to have a judge make the decision.

ARREST AND CHARGES

A criminal case starts with some contact from police or other law enforcement agencies, often either by arrest or citation.  Arrest is taking a person into custody and holding them until a trial of the merits of the case.  Citation is most often used in traffic court or minor cases and amounts to a person being ordered to go to court for proceedings related to the charges.  

In the minor offenses the police officer often signs a sworn statement that is an actual charge, but in bigger cases the officers can only write down information and get a warrant from a judge authorizing an arrest on "probable cause".  That means lots of folks in jail have not actually been charged yet.  

POWER OF THE DISTRICT ATTORNEY

Louisiana Law provides that the District Attorney makes the decision on who is charged with a crime, when they will be tried and for what specific charges. The person charged and their attorney have no power to change that.  The District Attorney is required in the most serious cases to present the case to a Grand Jury of randomly selected citizens to consider the facts and return charges in an Indictment, but the D.A. can always reduce the charges and still selects which cases will go to trial.

BAIL OR JAIL WHILE YOU WAIT?

Most minor cases involve a person waiting to go to court, not staying in jail.  But in Felony cases, which involve possible penalties of more than 6 months in jail,  people may be locked up and can wait years in jail for the case to be decided.  The Constitution says these people should be entitled to 'bail', meaning some kind of money or property is put up as security to be lost if the person fails to come to court.  Some people pay a "bondsman" or "bail bond agent" a percentage of what the bail amount is and the bail bond company puts up a surety certificate for the full amount so the person can be out of jail during the wait.  Generally that is about 10 to 15 percent of the bail amount.  If the person fails to go to court, the company loses the entire amount, but can get it back if they arrest the person and bring them to jail.  The premium is lost as the fee for getting the bond posted. 

In the serious cases and for people who have a rap sheet or criminal history, it is likely the amount of bail will be so high that the person cannot get out of jail.  In murder cases most people are not released and in First Degree Murder charges there is no right to bail most of the time.  

Just as with any part of the defense of a criminal case, others in the system make the determination on bail.  Your lawyer does not have the power to control that or make the court lower bail.  The lawyer can bring facts to the court to show why bail should be reduced, but nothing more. 

COMMUNICATION WITH COUNSEL

You must cooperate with your lawyer, whether hired by you or appointed by the court.  That means meeting the lawyer and discussing the case.  It does not mean that your lawyer will be able to give you good news or tell you that your case can be won. Your lawyer has the duty legally and professionally to explain the law to you and to also advise you on the facts and how those facts will affect you.  The advice may be that there should be an effort to work out the case, or that the case can be fought in trial.  It is always your decision what to do, but the lawyer has to try and explain what his legal opinion is about that decision.

THE RIGHT TO A LAWYER

Persons charged with a crime have the right to hire a lawyer of their choice.  If they can't afford to hire a lawyer of their choice, the court appoints a lawyer under the Louisiana Public Defender Act or other applicable law in the particular court system.  Those who cannot afford to hire a lawyer cannot choose who is appointed.

The Right To Counsel is satisfied in the 15th Judicial District of Louisiana by the local Indigent Defender Fund, known as the Public Defender Office.  The program is administered by the District Defender, who is the local chief administrative officer and the fiscal agent for the fund, which is an independent political subdivision subject to the regulations of the state board.

Generally, counsel is appointed when a person is subject to a jail sentence.  The right may not attach when the issue is only a traffic ticket or a civil matter in which no criminal liability is at issue.  Appointed counsel does not take over all the client's legal problems, and only works on cases to which he is appointed.  There are other limits to the right which may apply in a particular case.  For example, in Louisiana there is no right to an appointed lawyer for preparation of Post Conviction Petitions after conviction, but in the first appeal after conviction people are entitled to an appointed lawyer.

PUNISHMENT AND RAP SHEETS

Getting into criminal trouble, even an arrest, creates a record in most cases.  There is a National Criminal Information Computer that law enforcement can check from any computer, even at a traffic stop, to learn about a person's record.  This means that having a record becomes an important issue for the District Attorney and a major problem for you and your lawyer if you're facing a criminal charge.

MULTIPLE/HABITUAL OFFENDERS

There is a special law for sentencing people with several felony convictions, and it sometimes requires the Judge to impose a specific sentence simply because a person has prior criminal convictions.  This is known as "three strikes" in some states and in Louisiana it is the "Habitual Offender Law",  found in R.S. 15:529.1.  That law provides that the lowest possible sentence goes up the more often a person has committed a crime.  Sometimes a third felony, even something like felony possession of marijuana, can be the foundation for a Life Sentence at Hard Labor if a person has that rap sheet. 

This is a concern your lawyer will have when you discuss going to trial.  The risk of a Life Sentence is something to be careful with. You may think your case is a winner, but it would be best for you to work with your lawyer to make sure you don't get caught serving Life just because you didn't like your lawyer's advice.

THE PROCEDURAL STEPS

The process goes like this:

     1) A complaint or some incident brings law enforcement into a situation.  Police investigate and make a report.

     2) If the police can show a judge "probable cause" or they have an emergency situation where they see a crime, a person may be arrested and held for trial.

     3) The court will usually set BAIL, an amount of money to be posted as security for the person to return to court.  In some cases the person may be reliable enough to get released "on recognizance" or just on a promise to return.

    4)  Arraignment takes place at which time the person arrested can enter "not guilty" or other answers to the charges.    

    5)  Preliminary matters, if any, involving arguments about admissibility of evidence and use of prior crimes in trial may be subject to pretrial hearings. 

     6)  If no agreement is reached in a "Plea Bargain" the case is subject to trial in which a jury or a judge decides on the truth of the charge.

     7)  After the judgment or end of the case, there may be a right to appeal, or review of the case by a higher court.  Most cases are not changed by this procedure, which looks for legal error but does not have another trial.  Review is based on the record of what happened in the trial court.

Those are the basics of standing trial.  You should consult a qualified attorney in your specific case.