No Matter what Stage a Case is in, it is Never Too Early to Consult with a Criminal Defense Lawyer
The legal system can be divided into multiple, distinct stages or phases. The way I decided to describe the stages of a criminal case is not necessarily the only way to explain the legal system. It is just a useful way to think about how a case moves through the system and to describe some the work a criminal defense attorney should be doing for you during each phase or stage of your case.
If you suspect that you may be under criminal investigation, do not wait for a knock from law enforcement at your door. Instead, be proactive.
When a client initiates contact as soon as – or even before – he or she is contacted by the police, the impact on the outcome of the case can be tremendous. At times, a client can be kept from even being charged with a crime at all. I call this service Pre-Arrest Representation.
Even if charges are ultimately filed, having a criminal defense lawyer involved early on often weakens what could have been an otherwise stronger case by preventing the police from having contact with the client. I take other action as appropriate such as tracking down and securing favorable evidence and interviewing potential witnesses before they become difficult and expensive to locate.
I always charge a simple flat fee for Pre-Arrest Representation, and treat the fee as part of the overall retainer for the case if criminal charges are eventually filed. No matter what, never speak with the police before seeking advice from a criminal defense lawyer. Stay away from interrogation rooms. Consultations are always free and confidential.
Bond Hearings & Bond Reconsiderations
Contacting a criminal defense lawyer before bond is set can have a very positive impact in a case. Not only can the bond process often be quicker and more smooth, but – especially in magistrate court cases – the bond amount can also be lower since the court knows a lawyer is already involved.
In cases where the charges are serious felonies and angry victims will likely be present at the bond hearing, preparation put in by a criminal defense lawyer can be very valuable. Among the many factors judges think about when setting bond, the two biggest are risk of flight and danger to the community. The ability to provide positive information to judges on each of these two key issues can result in a reasonable bond for a client. Another reason bond is so important is that research shows that bonding out of jail plays a very large role in the ultimate disposition of a person's criminal charge. A person who is able to bond tends to fare better in front of a judge when entering a guilty plea than does someone who pleads guilty to the exact same charge while in an orange jail jumpsuit.
When a client facing a very serous charge and has had his or her initial bond request denied - or set much too high - by a magistrate judge, a bond reconsideration motion must be filed. A motion must be filed in General Sessions court and a hearing must be scheduled in order to have the matter of bond reconsideration addressed by a circuit court judge. A criminal defense lawyer is able to expedite this process and take a great number of steps to ensure the client's argument for bond has the greatest possible chance of success.
Reinvestigation, Motions & Negotiation
Most often people picture criminal defense lawyers in court arguing a legal motion to a judge or trying a case before a jury. This is certainly the most high profile part of the practice of law. But, before a criminal defense lawyer enters the courtroom and appears in front of a judge, a lot of other work must take place. The first step is to file motions designed to discover the government's view of the allegations. Many times, the next step is to call on the services of a licensed independent investigator. Flaws and mistakes in the original police investigation are often uncovered. During this phase of a case, a criminal defense lawyer must work towards crafting a strong defense strategy that exploits the weaknesses in the government's case.
Another key responsibility of the defense lawyer is to identify and research legal issues and file motions on those issues when the law is unsettled or favors the client's cause. After a reinvestigation of the facts and exhaustive research of all the identified legal issues, normally it is time to engage in some level of pretrial negotiation with the prosecution. During this phase of a case, often dismissals, diversions and reduced plea offers are obtained. As counselor to the client, any potential resolution must be carefully present to the client with the pros and cons of the case in order to reach a meaningful decision about whether the case should go to a jury trial. It is by preparing every case for trial that the best resolutions are reached.
Pre-trial motions, opening arguments, cross-examination, carefully made objections and closing arguments are what often comes to mind when thinking about the components of a jury trial. Jurors are assigned the job of deciding whether they are going to believe the government's allegations of guilt or whether the person on trial is innocent. To prevail, the government must prove guilty using the legal standard of "beyond a reasonable doubt." Judges often tell juries that this means if a reasonable person would hesitate to convict based on the evidence presented, then the government did not carry its burden of proof. The jury must be firmly convinced that a crime occurred and that it was committed by the person facing trial.
Once the prosecution rests, the defense must decide whether it will put on a case. Your criminal defense lawyer's preparation, understanding of the facts surround the case, legal research skills, reinvestigation and experience at trial will all play a pivotal role in the outcome of the trial. Tirelessly preparation for trial is the only way to get the best possible result – a Not Guilty Verdict – from the jury. One of the best feelings in the legal profession is walking out of a courtroom knowing that the jury served justice.
An appeal follows a conviction. Notice of intent to appeal must be filed no more than then (10) days after the end of the trial or the right to appeal is lost. An appeal is filed in the South Carolina Court of Appeals to challenge errors made by the judge during the course of the jury trial. Errors that contributed to the conviction are reversible errors.
A successful appeal always should showcase precise and meticulous legal research and writing skills. Oral advocacy skills are important too as some, but not all, appellate cases go to oral argument before a panel of judges. Further, an appellate lawyer often has to be able to distinguish the client's case from other similar cases that have already been decided.
Since appeals require a keen understanding of criminal law, the procedural rules of court and knowledge of previously decided cases, prior experience in this very technical criminal defense practice area is vital in order to be successful on direct appeal.
Even though a judge's conduct can be the subject of a post-conviction relief application, the focus is not primarily on mistakes made by the judge. Rather, the main issue is whether the lawyer who handled the case the resulted in a guilty plea or a conviction was effective on behalf of the client. The question is whether the trial level lawyer fell below the standard of care he or she owed the client. A strong grasp of what it takes to be an effective trial level advocate is absolutely necessary to prevail in a PCR case. How can a lawyer who is not an effective advocate even begin to understand where the previous attorney's representation may have deviated from the proper standard of care?
Another avenue of relief in from a PCR application is after discovered evidence. If evidence becomes available after trial and knowledge of its existence would have aided the defense, then the PCR applicant may be entitled to relief. After discovered evidence is sometimes undercover during a complete and careful reinvestigated of the facts of the underlying case.
In most instances, an application for post-conviction relief is filed either after the conclusion of a direct appeal or once the appeal process is waived. If the direct appeal is waived or abandoned in favor of filing a PCR application, the right to appeal at a later date is lost. In other words, a person cannot dismiss an appeal in favor of PCR and then attempt to resume the direct appeal of the conviction if he or she is not granted post-conviction relief.
"To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person - few love a spokesman for the despised and the damned."