Frequently Asked Questions
| Question: | My son just got arrested. What should I do? |
| Answer: | First, take a deep breath. Second, call me. |
| Question: | My son called from jail. He said that the detective was coming to interview him. Should he talk with the detective? |
| Answer: | No. The reason that the detective is wants to talk with a suspect is simple he/she wants to gather evidence and lock him into an account of the events. Your son is at a huge disadvantage talking to the police before knowing all of the facts. There may be a time when it makes sense to talk with the police; however, the conversation can take place at anytime. He is far better off waiting until he has had an opportunity to meet with his attorney and discuss whether it is in his best interest. Example. There is a fight outside a bar after closing time. No one has been able to positively identify the suspect (Roger). There is no DNA, fingerprints or other forensic evidence gathered at the scene. The detective sits down with the suspect and tries to get him to talk. The suspect is unaware of the fact that there is no evidence placing him at the scene. The detective starts talking about self defense, “Come on Roger, witnesses have identified you as the person responsible. (Nothing prevents a detective from lying to a suspect). You had to respond. You were just defending yourself. We’ll talk to the prosecutor and make sure that he understands.” Thinking that he is helping himself, Roger admits to committing the assault. He argues that it was in self defense. Having not talked with an attorney, Roger is unaware of the legal standards for self defense. The force used by Roger was more than was reasonably necessary. Roger does not have a viable self defense claim. The detective knew it. The detective just needed Roger to admit that he was the one involved in the fight. Admitting that he was at the scene, Roger gave the detective the final piece of the puzzle that he/she needed to file the assault charge. |
| Question: | If a suspect invokes his right to an attorney, doesn’t that look bad at trial? Doesn’t it make him look guilty? |
| Answer: | The Fifth Amendment to the United State’s Constitution affords your son the right to an attorney before a custodial interrogation. That he exercised his right cannot be discussed at trial. If the detective testified, “I visited him in jail and he invoked his right to an attorney,” it would result in a mistrial. |
| Question: | I looked my son up on the jail website. It said that there is a no bail hold. Why can’t I just post bail and get him out? |
| Answer: | In most jurisdictions, suspects who are arrested for a felony or a domestic violence offense cannot post bail until they have appeared in front of judge at the first appearance hearing. |
| Question: | What happens at first appearance? |
| Answer: | At the first appearance hearing, the judge is required to determine whether the arrest was supported by probable cause. If the judge finds that there is probable case, he/she will set the bail amount, conditions of release and set the date for the second appearance. |
| Question: | What does the judge consider for setting bail? My son has never been in trouble before. |
| Answer: | There is a presumption that the accused should be released on his/her own personal recognizance (PR release). The judge will set bail if 1.) PR release will not reasonably assure the accused’s return to court; or, 2.) There is a likely danger that the accused person will commit a violent offense. His attorney will need to be prepared to argue why the judge should release him on his personal recognizance or to set the lowest amount of bail possible. The court will be interested in his ties to the community, family support, warrant history and facts of the alleged incident that led to his arrest. |
| Question: | How do I post the bail once it is set by the judge? |
| Answer: | You can either post the entire amount yourself or use a bail bonding company. The bail company will require that you pay 10% of the bond and put up some form of collateral for the remaining amount. At the conclusion of the case, the court will return the bail that you posted (minus processing fees). If you used a bonding company, they keep the 10% and release the hold on the collateral. |
| Question: | What is second appearance? |
| Answer: | The prosecutor’s office has 72 hours (three days) to make a charging decision when someone is held in custody. Weekends and holidays are excluded from the time calculation. At the end of the 72 hours, at the second appearance, the prosecutor’s office must either file charges or release the suspect. |
| Question: | If they do not file charges, is that the end of it? |
| Answer: | Not necessarily. The prosecutor’s office will frequently elect to not “rush file” a case. If there is investigation that still needs to be done or there are unresolved questions, the prosecutor will request that the police do additional work on the case. For most felonies, the statute of limitations is three years from the date of the incident. For gross misdemeanors, it is two years. That means that the prosecutor’s office has substantial time to make its decision. The rule prevents people from waiting for weeks or months in jail while the prosecutor’s office decides whether to file charges. In contrast, the Italian judicial system permitted the authorities to hold Amanda Knox in jail for up to a year during the investigation before she was formally charged with murder for the death of Meredith Kercher. |
| Question: | If they do charge my son, what happens next? |
| Answer: | If the prosecutor’s office files charges, the court must schedule an arraignment within 14 days. At the arraignment, the court publicly advises the defendant of the charge(s), sets the conditions of release and determines the next court date. Once charges have been filed, the defendant is entitled to get a copy of the discovery. The process then begins in earnest. |
Tim@LearyDefense.com
phone: 206-382-2401
fax: 206-658-2401
705 Second Ave, Suite 1111
Seattle, WA 98104
Homicide
Homicide defense requires an examination of a variety of issues: identity, self defense, alibi, faulty eyewitness witness identification, inadequate investigation and mental defenses.
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Assault
The most common issues in assault cases are self defense and victim fabrication. I have had great success uncovering information that is favorable for my clients and all too often overlooked by the police.
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Robbery
Robbery cases often involve questions of identity or victim participation. Many wrongful convictions from around the country involve faulty identification procedures that invariably result in misidentifications. In other cases, the victim is less than forthright in what is actually a dispute over money, drugs or property.
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Burglary
In burglary cases, the issues often center around identity, proof that the defendant indeed to commit a crime inside the building (if not, it is a criminal trespass) and whether the building was open to the public.
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Theft
Theft cases are often document driven cases. Questions include – whether the defendant was the person who took the money or property? Was taking wrongful? Did the defendant have permission?
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Malicious Mischief
In malicious mischief cases, can the State prove that the defendant was acting maliciously or was it simply an accident? Other issues often involve questions of identity, the admissibility of the defendant’s statements, and the true cost of the damage.
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Arson
Arson cases present all kinds of issues that must be examined: identity, accidental vs. intentional fires, sufficiency of the investigation, intent, admissibility of the defendant’s statements, and identity.
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Driving/Motor Vehicle Offenses
Criminal traffic cases can be very complex and technical. The difference between an accident and an alleged criminal act can often be very narrow. The defense must scrutinize the accident reconstruction, the witnesses’ accounts and scientific tests.
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Guns
Courts take gun cases very seriously given that they frequently see cases involving gun that end with tragic results. Weapons cases often involve questions of whether the officers conducted a proper search and had a basis to seize the gun.
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Domestic Violence
Domestic Violence cases run the gambit – anything from misdemeanor theft to murder. It is simply a designation that is added to a crime. However that designation can have significant consequences for defendants.
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Juveniles
All too often kids do things that they and their parents regret. The juvenile justice system is supposed to place an emphasis on rehabilitation over punishment. In addition to all the other applicable defenses, it is important that the court not forget that we are working with a kid and not an adult.
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Immigration Consequences
The consequences of a criminal charge, let alone a conviction, can be devastating for noncitizens. Work visas, education visas, tourist visas and the ability to later naturalize can hang in the balance depending the case’s outcome.
