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To most people, the closest they will get to the criminal justice system is through episodes Law & Order or CSI. Those arrested in real life often find that the reality of being arrested is not like it is on television. Many assume that as they are arrested, the police will recite their Miranda rights. They also assume that if they are arrested at 4 pm, they will be able to make bail and be home in time for the six o’clock news. In reality, neither scenario is true.

Here are some basic truths about getting arrested:

  • The First Amendment protects your right to mouth off to the police. However, mouthing off to the police is never a good idea if they’re cuffing you.
  • It is never a good idea to try to fight a police officer.
  • If you are being arrested, it not a good idea to try to run from a police officer. In fact, it’s illegal.
  • No one has to read you your Miranda rights unless you are going to be interrogated.
  • It is *never* a good idea to talk to the police without your lawyer present.
  • If you are arrested, it will probably take a while before you can get bail and are released.
If you are arrested, one of the first things you will want to do after getting out of jail is hire a well-qualified criminal defense attorney. For more information about hiring a criminal defense attorney, go to:

http://bickerton-law.blogspot.com/2009/02/commentary-how-to-pick-criminal-defense.html

Of course, all of this is assuming that you are arrested. For summary offenses, the police may issue a citation ordering you to either plead guilty and send in a fine or plead not guilty and have a summary trial.

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In the Supreme Court’s decision in Montejo v. Louisiana, there are 3 key lessons for defendants to walk away with:

1.) Don’t talk to the police.
2.) Ask for a lawyer as soon as possible.
3.) Don’t talk to the police.

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Former Pennsylvania State Representative Mike Veon was charged with engaging in conduct that creates a conflict of interest (65 Pa.C.S.A. Section 1103); theft by unlawful taking (18 Pa.C.S.A. Section 3921(a)); theft by deception (18 Pa.C.S.A. Section 3922(a)(1)); theft by failure to make required dispositon of funds (18 Pa.C.S.A. Section 3927(a)); misapplication of entrusted property and property of government or financial institutions (18 Pa.C.S.A. Section 4113(a)); and criminal conspiracy (18 Pa.C.S.A. Section 903(a)(1)). On May 21, 2009, a district judge dismissed the charges against Veon. Shortly after the ruling, the Attorney General’s Office indicated that it would refile the charges. Although this appears to be unfair to the defendant, this practice is common.

Under the law, the Commonwealth is free to refile charges that have been withdrawn or dismissed as long as the statute of limitations has not run on the case. Even if a district judge throws a case out, the prosecution can refile the charges against the defendant. Therefore, a defendant cannot consider himself “clear” of charges until he has been tried or the statute of limitations has run out.

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After a defendant has been convicted, he has a few options to challenge the conviction. Along with a post-sentencing motion and a direct appeal, one of the methods a defendant may use to challenge his conviction is a petition under the Post-Conviction Relief Act (PCRA).

What is a PCRA petition?

A PCRA petition is used to challenge the validity of a conviction where the defendant believes that he was subjected to:

1.) A constitutional violation
2.) Ineffective assistance of counsel
3.) He was illegally compelled to plead guilty
4.) There was governmental obstruction
5.) Evidence that would have helped prove his innocence is now available and was unavailable at the time of trial
6.) A sentence that is longer than the statute allows
7.) The court that convicted him did not have jurisdiction

Who is eligible to file a PCRA petition?

A defendant who: 1.) is currently serving a sentence for the conviction being challenged (or a sentence that must be served before the sentence for the challenged conviction starts), 2.) alleges one of the seven errors listed above, 3.) has filed the petition on time, 4.) has exhausted all other remedies, 4.) didn’t waive or otherwise lose his right to raise the issue.

When can a defendant file a PCRA petition?

A defendant can file a PCRA petition after his direct appeal has ended.

How do I know if an attorney is qualified to do a PCRA?

To determine if an attorney is qualified to represent you for a PCRA action, you should follow the same steps used to hire a criminal defense attorney outlined here: http://bickerton-law.blogspot.com/2009/02/commentary-how-to-pick-criminal-defense.html

Specifically, you will want to ask the attorney how many PCRA’s she has dealt with, what training she has received in doing a PCRA, whether she stays up to date on the case law for PCRAs, and whether she reads through all of the trial transcripts when creating the petition. Also, you will want to have a lawyer who will explain what issues you may have and whether your issues “have merit.” Even if the attorney chooses not to take your case, he should, at the minimum, explain why he feels your issues would fail in court.

How long can it take for my PCRA petition to be heard?

This can take from a few months to a year.

If the judge does not rule in my favor, can I appeal?

Yes. You will have the option of appealing the case to the Superior and Supreme courts.

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How to Hire a Criminal Defense Lawyer:

Many people who go in search of a criminal defense attorney have never been in any type of trouble with the law and don’t know where to begin. There are even some who have past experience with the justice system who don’t actually know how to pick a good criminal defense lawyer. Fortunately, with a few guidelines, it is possible to pick a qualified criminal defense attorney.

Guideline #1: Picking the right type of lawyer

It is easy to assume that any lawyer is qualified to handle any type of case. This is not entirely accurate. Although any licensed attorney is permitted to handle any type of case, it is important to pick an attorney who has experience with your type of case. Think of it this way: Lawyers, much like doctors, tend to specialize. Although you do have general practitioners in both fields, you are often going to get a better result from a specialist. It is equally important to go to the right specialist. You may have the best podiatrist in the world, but is he the doctor you would go to for brain surgery? Similarly, a lawyer who did a wonderful job with your will may have little experience defending a criminal case.

Guideline #2: Finding out about the lawyer’s experience

Aside from finding out that the lawyer you want has experience in criminal defense, you will also want to find out what the depth of that experience is. Anyone can handle a DUI case and then hold herself out as a DUI lawyer. What you will want to do is ask your lawyer how many of your type of case she has handled. It is true that every lawyer has to get a start somewhere, but you do have the right to try to get a lawyer with a good amount of experience.

Guideline #3: Avoiding lawyers who make promises

Perhaps the most important thing to know when hiring an attorney is that you must be wary of promises. It’s one thing for a lawyer to guarantee what his fee will be, it’s another for him to guarantee a result. In any given criminal case, there will be a police officer, a district attorney, a judge, and possibly a jury involved. For an attorney to guarantee any type of result, she will have to be certain that the police officer, district attorney, judge, and/or jury will all be on the same page. As you may have guessed, this is often impossible (Even where it is possible, there is the question of whether what the lawyer is doing is legal if he can successfully guarantee an outcome). An experienced attorney will be able to tell you what the possible outcomes will be, but it is generally impossible for a lawyer to guarantee a result.

Guideline #4: Finding a lawyer who stays on top of the law

The law is constantly changing. Almost daily, courts hand down new decisions that change and/or explain how the law works. To be aware of the current state of the law, an attorney must dedicate a good amount of her time reading and doing research on what the law is. When hiring an attorney, you will want to ask her what she does to stay up to date on developing laws.

Guideline #5: Not letting money make the decision for you

Some defendants try to go with the most expensive lawyer they can afford. Others go with the least expensive lawyer they can find. Hiring a lawyer based upon how high or low his fees are is a mistake. Although money is always a factor, it is far more important to find an attorney who is qualified, experienced, and up to date on the law. You can find lots of horrible lawyers who are expensive and lots of wonderful lawyers who are inexpensive. The key is to judge an attorney by his qualifications and not by his price.

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How does the criminal justice system work?

The way the criminal justice system works varies from state to state. This is how the process goes in Pennsylvania:

1.) You are charged with a crime

When you are charged with a crime, the police file a complaint with the district magistrate where you are alleged to have committed a crime.

2.) You are arraigned

You are brought in front of a judge and informed of the charges against you. Bail is set and you are given a copy of the criminal complaint. You are also given a date for your preliminary hearing.

3.) You are given a preliminary hearing.

The Commonwealth presents the evidence against you. If they show evidence that a crime is committed and that you are accused of doing it, the charges will be sent up to the Court of Common Pleas.

4.) You are formally arraigned

The Court of Common Pleas gives you a date for your pre-trial conference and officially arraigns you on your charges.

5.) You have a pre-trial conference.

You have a date at the Court of Common Pleas where you pick your trial date

6.) You have your trial date.

You have a jury trial, non-jury trial, or enter a plea.

7.) You are sentenced.

If you are found guilty or enter a plea, the court gives you a sentence. The sentence depends on how many crimes you have committed in the past and the grading of the offense you were convicted of.

8.) You may be able to appeal.

If your rights were violated at trial, you can appeal or file a post-conviction relief act petition (PCRA).

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On Wednesday October 11th, John Cusack’s alleged stalker became a prime example of how many plea bargains are rejected. While entering a no-contest plea, Emily Leatherman claimed that her attorney forced her to enter into the plea agreement. So, the judge rejected the plea and instructed the attorneys to start picking a jury. As she was taken from the courtroom, Ms. Leatherman changed her mind and said she wanted to take the deal. Two days later, the judge accepted her plea.

Some people wonder if the judge did the right thing by refusing to accept Ms. Leatherman’s plea. Under the law, a court can’t take a defendant’s guilty plea unless it is “knowing, voluntary, and intelligent.” In other words, you have to understand that you are pleading guilty, no one can be forcing you to plead guilty, and you have to be informed of the facts of your case and other important details in order to plead guilty. Therefore, if you are under the influence of drugs or alcohol or are suffering from a mental illness that prevents you from understanding what you are doing, the court can’t accept your guilty plea. Many defendants are surprised when they have to answer pages of questions before they can enter a guilty or nolo contendere (no contest) plea. But, this paperwork is necessary for the defense attorney and the court to be sure that you are aware of your rights, that you know what you are pleading to, and that you are entering your plea voluntarily.

When you have a plea deal, it’s important to make sure the deal is right for you and that you understand what you are doing.

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