Prison Professors

What Are Post-Conviction Proceedings?

In the United States, we like to say that a person is presumed innocent until there has been a finding of guilt. Defendants don’t always feel that presumption of guilt. A criminal charge may result in being ostracized by friends, loss of employment, and even loss of housing. Those collateral consequences make a difficult situation worse.

From a legal perspective, life officially changes after a conviction. Prior to the conviction, the defendant may have gone through a “pre-trial services” program. While in the “pre-trial phase,” a judicial employee or probation officer may lightly oversee the defendant, imposing light restrictions. As an example, rules may require a person in the pre-trial phase to request permission before traveling outside of a specific jurisdiction.

With a criminal conviction, more formal proceedings will follow. For felony cases, a pre-sentence investigation and ensuing report will follow the conviction.

Pre-Sentence Investigation Report (PSI or PSR—used interchangeably):

Once a defendant pleads guilty, or a jury convicts the defendant, the person becomes a convicted felon.

In most felony cases, the court will order the probation department to conduct a pre-sentence investigation. This investigation will result in a report that has a lasting influence on the defendant’s life.

The pre-sentence investigation report provides details about the person’s background for the sentencing judge, staff members in the prison system, and the probation officer that will supervisor the person after release.  Essentially, the report will begin with a narration of the prosecution's version of the offense. The probation officer will interview the defendant and give him an opportunity to make a statement, too.

Besides interviewing the defendant, the probation officer will conduct an investigation into the defendant's personal background. It is not uncommon for the probation officer conducting the report to speak with the defendant's family members, friends, employers, and anyone else that may provide material information.

Major cases will result in more extensive pre-sentence investigations to provide the judge (and others) with a snapshot of the offense and the defendant's background. The judge relies on this information as a source of reference when deliberating over the appropriate sanction to impose.

Those going to prison should not underestimate the importance of the PSR. The PSR will have a big influence on the person while he is in prison and while he is on Supervised Release. Because of the PSR's importance, we devote chapter seven to the process, revealing how our team works with clients that choose to prepare before their interview with the probation officer. 

Sentencing:

After the finding of guilt, and the completion of the PSR, the next step in the criminal justice process is sentencing. In most cases, sentencing is a function of the court. Basically, the sentencing judge has three alternatives:

• For the most serious crimes, the sentencing judge may impose a term of imprisonment.
• For crimes that the judge deems less severe, the judge may impose a term of probation, allowing the offender to remain in the community under specific conditions.
• Or, the judge may impose some type of financial sanction, like a fine or restitution.

Generally, the legislature determined the range of sanctions from which the judge can choose.

For federal crimes, judges must rely upon the sentencing guidelines when determining what sentence to impose. The guidelines are not “mandatory,” but judges must consider them. As a result of a Supreme Court case, judges must consider personal characteristics. Those characteristics may warrant a sentence either below or above the guideline range. For that reason, our team recommends that defendants consider a multi-pronged approach to prepare prior to sentencing.

Congress designed the guidelines to create uniformity in sentencing. They provide a matrix that take many dynamics into consideration. Among other factors, guidelines consider the defendant's role in the offense, the defendant's acceptance of responsibility, aggravating factors, mitigating factors, and the defendant's criminal history. The Federal Sentencing Guidelines Manual provides details that judges may consider as they deliberate over appropriate sanctions.

Anyone anticipating the possibility of receiving a federal sentence ought to read guidelines manual to understand more about what judges consider when sentencing a defendant. Our team has interviewed several federal judges. They’ve given us insight with regard to steps a defendant should take in anticipation of sentencing. Specifically, judges want to know:

• What does the defendant understand about victims in the case?
• What led the defendant into the criminal behavior?
• What has the defendant learned from the process?
• What steps has the defendant taken to reconcile with society?

Although the defendant’s attorney will prepare legal arguments to advocate for the defendant, every defendant should work to advocate for himself. Our team urges defendants to work toward a multi-part strategy that includes:

1. Preparing a sentencing narrative.
2. Preparing a sentencing video.
3. Preparing a package of character-reference letters.
4. Preparing a sentence-mitigation story of reconciliation with society.

Our catalog offers details on each of those options. This multi-part strategy will help the judge get to know the defendant’s true nature. It can lead to mercy, or the least restrictive sanction. Read more about these options by texting the following word, to the following number:

• Text number: 44222
• Test following word: Sentence
• Or visit ResilienceCourses.com

If the defendant has been out on a bond, the judge may order the defendant into custody after the sentencing hearing. In other cases, the judge authorizes the defendant to report to prison later. Our team has seen cases with different outcomes. If the defendant makes a credible argument, he may have reason to wait several months before surrendering to prison. In the rarest of circumstances, defendants may remain free on bond pending the outcome of an appeal.

Every case is unique. Defendants should consider the pros and the cons of prolonging a surrender date to prison. In some cases, it makes sense to get to prison at the soonest possible time. In other cases, valid reasons exist to postpone the surrender date. 

Becoming a Prisoner / Good Time / Earned Time:

After the judge sentences a person, a transition takes place. In the federal system, the trial judge loses jurisdiction over the case in a matter of days. The U.S. Marshal Service sends the Judgment Order, along with the PSR, to the administrative office of the Bureau of Prisons, in Grand Prairie, Texas. Prison staff members then rely upon a program statement, known as the Custody and Classification Manual. That manual includes a scoring system that results in a “security-level” score and a “custody-level” score. BOP officials in Grand Prairie rely upon those scores and other factors to determine where the prisoner will serve the sentence.

In December of 2018, President Trump signed the First Step Act. The First Step Act is the most significant criminal-justice reform legislation in more than two decades. Although the president signed the law, as of early summer 2019, the Bureau of Prisons has not yet fully implemented the First Step Act. We do not anticipate people in prison getting the full benefit of the law until 2020. As more details become available, we will update this book and our courses on ResilienceCourses.com. For more current information on details of The First Step Act, please visit our websites at:

• PrisonProfessors.com, or
• ResilientCourses.com, or
• WhiteCollarAdvice.com

Every person in federal prison will benefit from this new law. For example, as a result of the legislation, people in federal prison will receive a full 15 percent reduction in their sentences if they abide by rules in federal prison. Further, the law requires officials in the BOP to authorize more self-help programs for people in prison. Some examples of positive programs in federal prison include:

• Education courses
• Vocational courses
• Fitness courses
• Spiritual-development courses
• Substance-abuse treatment programs

All prisoners that remain active in those positive programs will derive some form of benefit from participating. But if the Bureau of Prisons officials determine that the qualified prisoners are at “low- or minimal-risk” of recidivating, those prisoners will receive “Earned Time” credits of 15 days each month.

It’s important to differentiate “Good Time” credits from “Earned Time” credits. Prisoners receive up to 54 days each year in Good Time credits if they avoid being charged with any disciplinary conduct. Prisoners don’t have to do anything particularly good to get the Good Time. They simply must avoid doing anything bad. By adhering to rules, a prisoner’s sentence will be cut by 54 days per year.

The First Step Act does not cut time that a prisoner owes to complete the sentence. Rather, the prisoner that works to develop skills through good behavior and positive programming accumulates Earned Time credits at a rate of either 10-days per month, or 15-days per month. At the end of the sentence, the qualifying prisoner will be able to rely upon those Earned Time credits as an objective mechanism to transition into home confinement earlier than would otherwise be possible. Qualifying prisoners may serve significant lengths of time on home confinement.

For example, let’s say a person qualifies for the maximum benefit under the First Step Act. That person may have a federal conviction and he may have received a sentence of 100 months. That person may qualify for the Residential Drug Abuse Program, too. The table below offers an estimate on what he could expect to serve with and without the First Step Act.

Factor

With First Step Act

Without First Step Act

100-month Sentence

100-month Sentence

100-month Sentence

Good Time Credits

15% of sentence, which reduces sentence to 85 months.

15% of sentence, which reduces sentence to 85 months.

RDAP time reduction

12 months off sentence, which reduces sentence to 73 months.

12 months off sentence, which reduces sentence to 73 months.

Earned Time Credit at 15 days per month

Roughly 50% of time to Residential Reentry Center, resulting in transfer to home confinement at somewhere between 37 and 42 months.

Six to 12 months available for transition to Residential Reentry Center, resulting in transfer to halfway house or home confinement at around 61 to 67 months.

Although the above table is only an estimate, and we won’t have final details until the Bureau of Prisons releases its policy statement on the First Step Act, it’s clear that this law will bring a positive benefit to many people in prison.

When it comes to Earned Time credits, the operative word is “qualifying” prisoner. Congress detailed a specific list of offenses that do not qualify for Earned Time credits. Generally speaking, people convicted of non-violent offenses qualify for Earned Time.

Again, we will update our sections on Earned Time as the Bureau of Prisons releases policy statements on this law.

Getting to Prison:

Once an individual is sentenced to prison, the next step is getting there. Offenders who are sentenced to relatively short terms, fewer than ten years, may have the privilege of surrendering to the facility to which they have been designated or assigned to serve their sentence. The vast majority of people will be taken into custody and proceed through the humiliating prisoner transfer system. Future chapters will describe what to expect when being transferred to an initial prison, or from one prison to another. 

Appeals and Post-Conviction Remedies:

Most defendants will enter into plea agreements that prohibit them from launching direct appeals. Prisoners that proceed through trial, on the other hand, routinely appeal if the jury convicted them. They may appeal errors in due process. In rare circumstances, such as if they discovered information that had not previously been available, they may appeal issues that the trial court did not consider. Otherwise, appellate courts review errors that the lower court may have made, which would have violated the defendant’s due process rights.

Every step in the judicial proceeding brings the case one step closer to finality.

The U.S. Supreme Court, being the highest court in the land, is the court of last resort. Few defendants ever see their cases advance that far in the appellate procedure.  Indeed, relatively few offenders find any relief through appellate procedures. According to Modern Criminal Procedure, 9th Edition, by Yale Kamisar, et al, published by West Group, (St. Paul. Minn: 1999)—which we relied upon heavily to write this chapter—fewer than 11 percent of all defendants succeed on appeal.

Within one year after the appellate process is exhausted, those in prison may seek relief through habeas corpus, a civil (rather than criminal) proceeding. It is difficult to undo the long record that already has been established. The judicial concept of stare decisis, meaning “Let the decision stand” weighs heavily against defendants that seek relief through habeas corpus. Nevertheless, if defendants believe that their constitutional rights have been violated, such as if their attorney failed to represent them appropriately, and they file their motion within time limits authorized by the rules of civil procedure, they may attempt to get judicial relief through motions such as the §2255 motion.

Besides a defendant’s motion, a prosecutor may initiate a post-conviction motion that gives jurisdiction back to the sentencing judge. As an example, prosecutors may file a Rule 35 motion. Prosecutors rely upon the Rule 35 as a tool to encourage people that have been sentenced to cooperate against others. By filing a Rule 35, prosecutors ask the judge to resentence the defendant to a lower term.

Final Word:

Anyone anticipating a potential problem with the criminal justice system should learn as much about the system as possible. The more knowledge a person has about the system, the better-prepared he will be to work with his attorney to achieve the best possible outcome.

People should rely on their attorneys for legal advice. Yet they also should make efforts to gather and learn from the experiences of others.  Do not be an ostrich, living as though problems with the criminal justice system will somehow disappear.

If charged with a crime, we recommend reading the statute to find a complete definition of the elements of the offense. The defendant should read through potential penalties as well. The defendant does not have to speak with a law enforcement officer, but if he chooses to speak, he had better not lie. Lying to any law enforcement officer exposes the person to more problems—like obstruction of justice charges, or charges of making a false statement to a federal officer.

If ensnared in the criminal justice web, think about damage control. It’s best to think proactively about navigating the challenges ahead. Learn the stakes associated with every decision.

When considering whether to go to trial or plead guilty, remember that sentencing guidelines incentivize those that expresses remorse and accept responsibility. The sooner a person starts preparing for leniency at sentencing, the better.

Although holding the prosecutor to task on every issue may bring some advantages, that option does not come without potential costs—both in terms of financial costs to launch an aggressive defense, and costs in terms of exposure to more difficult sanctions.

You’ve just listened to another chapter of Prepare: What Defendants Need to Know Before Court / Sentencing / or Prison. Get a free digital copy of the book by visiting Prison Professors.com. You can also send an email to [email protected]. Call or text 949-205- 6056

What Are Criminal Justice Proceedings?

Hopefully, once you find and hire a lawyer, you'll have a trusted advocate.

When it comes to criminal matters, unfortunately, finding and hiring a criminal defense attorney is only the start of a long and arduous path. The more a defendant learns about the challenges ahead, and the better he understands how he can prepare, the more likely he will be to conquer struggles that complicate life for so many that experience the criminal justice system.

I don't have precise statistics in front of me. Still, I don't think anyone will argue that if federal prosecutors bring criminal charges against individuals, a sentencing hearing will follow more than six out of ten times. Before banging the gavel to signal finality, the judge frequently says:

• "I sentence you to the custody of the Attorney General."

Several years ago, a federal judge in the Southern District of California invited our team to lead a panel discussion for other judges in his district. They wanted us to help judges understand what happens after they sentence a person to prison.

If federal judges don't know what happens after they sentence a person, it's fair to say that neither lawyers nor defendants know what to expect either. In fact, some defendants don't even know how they got into the system.

How does it Start:

Relatively few Americans have more than a basic understanding of our nation's criminal justice system. They know that law enforcement officers arrest people, district attorneys prosecute many of those who are arrested, and some people who are convicted go to jail or prison. It's much more complicated than that, of course.

Although I'm not a lawyer, I've done a lot of research to get a better understanding of the system, and I found an excellent resource in Modern Criminal Procedure, 9th Edition, by Yale Kamisar, et al, published by West Group, (St. Paul. Minn: 1999). It's a great resource for anyone that wants to get a more thorough understanding of the system.

Most people don't need to read a legal treatise. The summary I provide below will give most defendants a better understanding of how the criminal justice machine works. That understanding may lead to more fluency, better communications, and better preparation for the journey ahead.

Again, we're writing for laymen, for people who want a brief glimpse of what to expect if charged with a felony.

Start from the premise that our criminal justice system is designed to protect society. It doesn't always seem that way for a defendant. When a defendant comes into the system, everything feels like a personal attack, and the complicated proceedings aren't always easy to understand.

Lawyers talk about substantive laws (the laws that congress passed) and about proceedings (the rules by which the system is supposed to operate). It isn't a perfect system, because it has evolved over multiple decades, and it's designed to operate at scale. A system designed to process more than 1 million people each year doesn't look too closely at personal characteristics and circumstances. It's much more like moving a cog through an elaborate machine.

All branches of law enforcement work together to prosecute crimes. Just as some offenders will make every effort to evade detection and apprehension by law-enforcement officers, representatives of the criminal justice system will make every effort to convict a defendant.

Many defendants complain that law enforcement officers and prosecutors operate outside the scope of the rules in order to get convictions. Unfortunately, complaining doesn't solve any problems. Once a person comes into the system, it's best to think methodically. We need to learn as much as possible, and then engineer our way to the best outcome.

Throughout this book and course, we'll offer insight that defendants may use—along with their counsel—to prepare.

Practically speaking, defendants would be well advised to expect law enforcement officers and prosecutors to use every means available for them to achieve their ends. Ultimately, prosecutors want to solve crimes and convict. In a perfect world those representatives of justice would dot every "I" and cross every "T" as they follow the rules in both the letter and the spirit of the law.

Years of working with society's felons, however, frequently causes seasoned law enforcement officers to develop cynical perspectives of humanity. Sometimes, to get the outcome they want, they cut corners. They may even threaten. Let me give an example from a client that our team is working with now.

Sam is a healthcare professional. The prosecutor offered him an opportunity to plead guilty to a charge with a five-year cap. If Sam chose to exercise his right to a jury trial, the prosecutor threatened to bring charges against Sam's wife, and to bring further charges that would expose Sam to more than 20 years in prison. Then, the prosecutor argued that Sam would have to agree to say that no one pressured, threatened, or induced him to take the plea.

From Sam's perspective, the proceeding is inherently unfair. He would like to have had an opportunity to argue for his innocence. But he could not afford to expose his wife to the threat of criminal charges. He felt threatened and pressured to take the deal. Rather than justice, Sam said the prosecutor wanted a conviction.

Those who work in law enforcement tend to become ultra conservative. They may be rigid in their beliefs that people who are charged with crimes clearly did something wrong and ought to be punished. Such attitudes can result in offenders being charged with crimes that can result in convictions, as opposed to the offender being charged with precisely the crimes that the individual may have actually committed.

It would be wise, I think, for those who become entangled with the criminal justice process to anticipate a system influenced much more by Machiavelli, pursuing victory regardless of methods, rather than a system influenced by teachings of more enlightened leaders that encourage forgiveness, compassion, and concern for the individual.

The Structure:

In compliance with our nation's Constitution, legislators elected to both houses of the U.S. Congress have played a significant role in establishing a body of federal laws that are supposed to govern the behavior of citizens. The Constitution also provides legislators from each individual state with authority to establish their own code of criminal laws for their state, and their own criminal justice processes for enforcing those laws statewide. Although the different jurisdictions frequently collaborate, our nation actually operates several different criminal justice systems:

• We have a system for the federal government,
• We have a system for each state,
• We have a system for the military, and
• We have another system for the District of Columbia.

It's our responsibility as citizens to abide by these laws. When we do not, we subject ourselves to being charged with criminal offenses and experiencing the wrath of the criminal justice system.

Law enforcement officers are supposed to follow strictly prescribed procedures when charging a citizen with wrongdoing. In addition to federal and state rules for criminal procedure, published judicial opinions may also have an impact on criminal procedures.

Criminal procedures are complicated. They can be understood more easily when we think of the criminal justice system as a game. I use this metaphor for clarity, not to trivialize the conflict between accused and accuser.

Offenders, or "defendants" act as opponents of law enforcement officers and prosecutors. Both sides want to win. The defendants want to be acquitted, or to receive the least restrictive sanction. On the other side, law enforcement officers and prosecutors want to convict. They frequently argue for defendants to receive severe sanctions, without consideration for individual characteristics or mitigating factors. A judge will make the ultimate decision.

In this "game" of criminal justice, the judge acts as referee. Judges are charged with the responsibility of ensuring that all participants of the game follow procedures to ensure that due process is achieved. Although there are many ways this game may begin, it usually starts when someone reports a crime to a member of law enforcement.

Once the Crime is Reported:

The criminal justice process usually begins when a crime is reported or otherwise discovered by law enforcement officers. Law enforcement officers may learn about a crime in any number of ways.

• They may observe a crime being committed;
• They may learn about it because someone reports it;
• They may learn about it through investigation or by interrogating others.

Once law enforcement officers learn about a crime, it becomes a "reported crime" or a "known offense."

Pre-Arrest Investigation

Sometimes, as when law enforcement officers are present when a crime is being committed—or soon thereafter—the "investigation" begins with an on-scene arrest. Other times, as when law enforcement officers learn that a crime has been committed, but were not in a position to make an on-scene arrest, they have the responsibility of solving that crime.

They therefore launch a reactive investigation, where the officers will attempt to figure out:

• Whether a crime was in fact committed,
• Who committed the crime,
• What evidence there is of guilt, and
• How to locate the offender to make an arrest.

Proactive investigations, on the other hand, are aimed to solve crimes that are ongoing or that may take place in the future. These types of investigations place law enforcement officers in a position to uncover criminal activity, the specifics of which are not known, or where they do not have enough information to charge all whom may be participants in the crime.

Another type of pre-arrest investigation includes the prosecutorial investigation, which is generally conducted by a prosecutor. The prosecutor has the power to convene a grand jury (see below for discussion on the grand jury) and, through the power of the grand jury issue a subpoena. Individuals who receive such a subpoena must appear before the grand jury and answer questions that the prosecutor poses in the criminal investigation.

Since the person who received the subpoena does not have counsel present during the questioning, and the entire grand jury proceeding is orchestrated by a prosecutor, it has become routine for grand juries to rubber stamp the recommendations of the prosecutor.

Arrest:

An arrest, of course, is when the law enforcement officer takes a person into custody. Sometimes, the arrest occurs at the scene of a crime. In cases that evolved from reactive or proactive investigations, on the other hand, the officers will obtain an arrest warrant—usually from a magistrate judge—before taking the person into custody. In some cases, officers will allow the suspect to turn himself in. In other cases, law enforcement officers will make a spectacle. In those cases, the officers use an extreme show of force—frequently with weapons drawn—at an inconvenient time, like the break of dawn or during a person's work hours.

Booking:

If the person was arrested publicly, the officers will search him. They may search his vehicle, home, or office. They're looking for contraband, weapons, or evidence of a crime. Then they transport the suspect to a jail, a courthouse, or some other type of holding facility for further processing, or "booking."

During the booking procedure, the officers will conduct clerical procedures to memorialize the arrest. They record fingerprints and photograph the suspect (the well-known mug shots). If it's a minor crime, authorities may release the suspect from the holding facility. If the alleged crime is more serious in nature, authorities may hold the suspect for several hours, or even days, until he can appear before a judge who will determine whether bail is appropriate. If the offender is held in lockup, it is likely that he will be ordered to undergo a strip search.

Post-Arrest investigation:

Immediately after the arrest, the post-arrest investigation begins. The first step is when the officers search the person—and possibly his vehicle, home, or office—for evidence that can be used against him. After that, law enforcement officers may conclude that little else needs to be done (in the event that they caught the suspect in the act), or they may continue with many of the same types of techniques used in reactive and proactive investigations, such as interviews and searches.

Deciding to Charge:

When law enforcement officers witness a crime, they make a decision on whether to charge the suspected offender. Then, after the individual has been processed through booking, superior officers may review the arrest and decide whether to allow it to proceed. If the law enforcement agency chooses to proceed with prosecution, the prosecutors will then review the charge.

The prosecutor may interview the arresting officer and review the evidence to determine whether the case is worthy of a filing of the criminal charge. Reasons why a prosecutor may decline to file charges include:

• Insufficient evidence;
• Witness difficulties;
• Due process problems;
• Alternatives to prosecution; and
• Diversion programs that enable the suspect to avoid a criminal record.

Even if the prosecutor initially chooses to charge an individual, he may change his decision. Later, he may determine that the charge is not justified or that a lesser charge is more appropriate. In those cases, the prosecutor would have to file a motion before the court detailing the prosecutor's reasons to forego prosecution. The prosecutor would use the same screening factors identified above to determine the appropriateness of such a motion.

Filing the Complaint:

In many cases, if the charges pass the prosecutor's screening, the next step will come when the prosecutor files the complaint, most likely with a magistrate judge. The complaint is usually a fairly brief document, concisely detailing the criminal allegations. When a complaint is used as the charging instrument, someone must sign the complaint under oath indicating that he or she believes the factual allegations of the complaint to be true. Usually it's the victim or the investigating officer who signs the complaint. With the filing of the complaint, the suspect officially becomes a defendant in a criminal proceeding.

Review of the Arrest by Magistrate:

Many jurisdictions appoint magistrate judges to take some of the workload away from trial judges. Among other things, the magistrate judges handle many of the pre-trial matters.

After the prosecutor files the complaint with the court, but before the defendant's first appearance, for example, it frequently will be a magistrate judge who reviews the charges against the defendant. If the defendant was arrested without a warrant and remains in custody, the magistrate must determine whether probable cause exists for the defendant's continued detention. In the extremely rare instance that the judge finds that the prosecutor has not established probable cause, the prosecution either must produce more information or release the arrested person.

First Appearance:

With the filing of the complaint, the defendant is brought before the judge "without unnecessary delay." Several hours or several days may pass before the defendant sees a judge, depending on the circumstances. If a defendant is arrested late on a Friday afternoon, he may not see the judge until the following Monday.

The first appearance is generally a brief proceeding in which the magistrate determines that the person named on the complaint is the person before the court. After the magistrate is convinced that the appropriate person is present, the judge will read the charges made against the defendant, identify the defendant's rights, and in felony cases, advise the defendant of the next step in the process, which is the preliminary hearing. The magistrate then sets a date for the preliminary hearing, which the defendant may choose to waive. The magistrate judge then will ask the defendant to enter a plea; if the defendant pleads not guilty, the judge will set a trial date.

Defendants are entitled to have counsel present at every stage of all felony criminal justice proceedings. If the individual cannot afford counsel, the court will provide a court-appointed attorney. A substantial percentage of all felony defendants go through their criminal justice proceedings with court-appointed counsel. These attorneys may work for a public defender service, or they may be in private practice but make themselves available to represent a limited number of indigent defendants. As a practical matter, the indigent defendants who use court-appointed counsel do not have much choice as to which attorney represents them.

Bail:

If the defendant is in custody at the time of his first appearance, one of the most important functions of the proceeding is for the magistrate judge to determine whether bail is appropriate. Bail establishes the conditions under which the defendant can be released from confinement until his case is decided.

If the magistrate judge agrees that bail is warranted in the case, he may require the defendant to post bail in cash, with a surety bond, or by signing over a deed to property. The judge also may accept the defendant's personal guarantee that he will present himself for trial.

In general, the magistrate is expected to impose such bail conditions as appear reasonably necessary to assure that the defendant will make court appearances as scheduled throughout the criminal justice proceedings. There is a presumption that a defendant is entitled to bail. Unfortunately, in drug cases or other serious offenses, judges refuse to release a defendant on bail. The magistrate generally looks to the seriousness of the crime, the defendant's criminal history, the defendant's risk of flight, and the defendant's ties to the community when deliberating over the appropriate bail conditions.

Preliminary Hearing:

After the first appearance, the next scheduled step is the preliminary hearing. Defendants who choose to plead guilty frequently waive the preliminary hearing. Some jurisdictions allow the prosecutor to bypass the preliminary hearing, which is yet another screening of the charge, by immediately obtaining a grand jury indictment.

In jurisdictions that allow preliminary hearings, magistrate judge presides over this first step. Since this phase of the process is adversarial in nature, the defendant should have counsel present to represent him. Generally, during this proceeding, the prosecutor will provide witnesses and the defendant's counsel will have the opportunity to cross-examine. After listening to the proceeding, the magistrate judge will determine whether to advance the case to the next level—which either is a grand jury review or the filing of a criminal information or complaint.

Grand Jury Review:

In the federal system, all felony prosecutions require a grand jury review. The only exception is when the defendant waives this review and agrees to be charged with a criminal complaint or information.

States vary in their requirements for charges. The primary function of the grand jury review is to determine whether sufficient evidence exists to proceed with a trial on the criminal charges. A number of randomly chosen citizens sit on the grand jury panel, usually between 12 and 23. Those grand jurors listen as the prosecution presents its case. The prosecution uses its subpoena power to call witnesses before the grand jury, then questions those witnesses under oath.

Witnesses do not have the right to legal counsel during the grand jury proceeding, and there is no cross-examination. Accordingly, the proceeding is really a one-sided show for the prosecution.

When the prosecution does persuade the grand jury that there is merit to the criminal charge, the grand jury returns an indictment. Although the grand jury is said to be a screening device, many in the legal profession ridicule it. Since defendants can't speak on their own behalf, and targets may not even know that a prosecutor convened a grand jury, prosecutors have their way. They get to build arguments without giving the target an opportunity to respond. For that reason, experts say a prosecutor could use a grand jury to indict a ham sandwich.

When a grand jury does issue an indictment, that document is filed with the trial court, replacing the original complaint or accusatory instrument in the case. If a grand jury review was not sought, either because it was not required or it was waived, the prosecutor simply would file the criminal complaint or information with the trial court.

The Arraignment on the Criminal Information, Complaint, or Indictment:

After the accusatory instrument is filed with the trial court, the defendant is brought before the trial court to be informed of the charges against him. The trial court judge will ask the defendant how he pleads. Ordinarily, the options for the defendant are to plead guilty or not guilty.

This procedure is known as arraigning the defendant. In most cases, defendants plead not guilty at the earliest stages. This strategy gives the defendant more time to examine the strength of the government's case. It also allows time for the possible negotiation of more favorable conditions under which the defendant will agree to plead guilty—as most defendants eventually do.

Plea Bargaining and Proffers:

Prosecutors want defendants to plead guilty. Ultimately, they want a conviction. Trials require substantial amounts of government time and resources. Further, the outcome of a trial is uncertain.

Accordingly, prosecutors frequently grant concessions to induce defendants to plead guilty. For example, they may agree to dismiss certain charges, or they may agree not to prosecute a family member. Prosecutors want to avoid the time and expense of a trial. They may invite a defendant to proffer what he would show through trial, or the prosecutorial team may proffer what it could prove during a trial. All of those negotiations are designed to come to an agreement that would avoid a trial.

This procedure is frequently called plea bargaining. The prosecutor has the authority to charge a defendant with crimes that carry certain sentences. They also have the ability to recommend certain sentences within the statute or guideline range.

In the end, the judge imposes a sentence. Although the judge may listen to the prosecutor's sentencing recommendation, prosecutors do not have the power to bind a judge's decision.

The vast majority of defendants enter guilty pleas. Frequently, defendants that plead guilty spend much of their time in prison second-guessing their decision. Experience convinces us that defendants who know they are guilty are vastly better off:

• To accept complete responsibility,
• To express remorse,
• To plead guilty at the earliest possible stage, and
• To work toward an effective sentence-mitigation strategy.

Like all decisions where liberty is at stake, deciding whether to plead guilty is a legal decision that must be made with the guidance of counsel.

Pre-Trial Motions:

After the arraignment, attorneys for the defendant may choose to file multiple pretrial motions before the trial court in an effort to help them develop a better understanding of the government's evidence. These motions may:

• Attack the charging instrument—either the criminal information or the grand jury process;
• Ask for an order directing the government to disclose evidence;
• Request the court to suppress evidence that the defendant believes was obtained in violation of the defendant's Constitutional rights.

The Trial

If the case has not been dismissed, and the defendant has not pled guilty, the next step in the criminal justice procedure is the trial. Defendants have a right to a speedy trial, but the defendant may waive that right. The prosecutor may look for excusable opportunities to extend the pretrial time period.

Both sides of the adversarial process look for every opportunity to prepare their case. In a typical jurisdiction, it is reasonable to expect five to ten months to pass from the time of arrest until the time the trial begins. Some trials may require only a few hours, others several weeks. Complicated cases may stretch into several months—or even years—before both sides present their closing arguments.

Although some defendants choose a bench trial, with only a judge to determine one's guilt or innocence, all felony defendants have the right to a jury trial. In a jury trial, a group of randomly selected citizens is charged with the responsibility of listening to the evidence that the trial judge allows to be presented.

The jurors are supposed to presume that the defendant is not guilty of the charges until the trial judge instructs them to begin deliberating on whether the prosecution has proven its case.

The trial begins with the voir dire process, which is the questioning of jurors. The judge, and in some jurisdictions the attorneys play a role in questioning the prospective jurors. During voir dire, both the defense and prosecution will try to filter prospective jurors that may be biased against their side.

The theory may hold that both sides are seeking justice. In reality, the prosecution is seeking a conviction and the defendant is seeking an acquittal. Each side is looking for the best group of jurors to deliver the desired verdict. The judge will determine how many prospective jurors each lawyer can remove from the potential jury.

Once the jury has been chosen and sworn, the prosecution and the defense may begin with an opening argument. After opening arguments, the prosecution will begin presenting its case, usually with live witnesses whom the defense may then cross-examine.

After the prosecution rests, the defense will have an opportunity to present its case and the prosecutor can cross-examine its witnesses. Then, after both sides have rested, the prosecutor will make a closing argument. The defendant's attorney will have an opportunity to make a closing argument. The prosecutor gets the last word, though, in response to the defense attorney's closing argument.

Finally, the judge will read a set of instructions to the jury. Once the judge releases the jury to the jury room, members are supposed to start considering all of the evidence as they deliberate on whether the prosecution has proven its case.

To obtain a conviction, each member of the jury must find the defendant guilty beyond a reasonable doubt. Once the jury reaches a verdict, and it's announced in court, the judge concludes the trial.

If it's a guilty verdict, whether after a trial or as a result of a plea, a series of post-conviction proceedings will follow. In the next chapter, we'll offer insight on post-conviction proceedings in the criminal justice system.

What Are Criminal Justice Proceedings?

Hopefully, once you find and hire a lawyer, you’ll have a trusted advocate.

When it comes to criminal matters, unfortunately, finding and hiring a criminal defense attorney is only the start of a long and arduous path. The more a defendant learns about the challenges ahead, and the better he understands how he can prepare, the more likely he will be to conquer struggles that complicate life for so many that experience the criminal justice system.

I don’t have precise statistics in front of me. Still, I don’t think anyone will argue that if federal prosecutors bring criminal charges against individuals, a sentencing hearing will follow more than six out of ten times. Before banging the gavel to signal finality, the judge frequently says:

• “I sentence you to the custody of the Attorney General.”

Several years ago, a federal judge in the Southern District of California invited our team to lead a panel discussion for other judges in his district. They wanted us to help judges understand what happens after they sentence a person to prison.

If federal judges don’t know what happens after they sentence a person, it’s fair to say that neither lawyers nor defendants know what to expect either. In fact, some defendants don’t even know how they got into the system.

How does it Start:

Relatively few Americans have more than a basic understanding of our nation's criminal justice system. They know that law enforcement officers arrest people, district attorneys prosecute many of those who are arrested, and some people who are convicted go to jail or prison.  It's much more complicated than that, of course.

Although I’m not a lawyer, I’ve done a lot of research to get a better understanding of the system, and I found an excellent resource in Modern Criminal Procedure, 9th Edition, by Yale Kamisar, et al, published by West Group, (St. Paul. Minn: 1999). It’s a great resource for anyone that wants to get a more thorough understanding of the system.

Most people don’t need to read a legal treatise. The summary I provide below will give most defendants a better understanding of how the criminal justice machine works. That understanding may lead to more fluency, better communications, and better preparation for the journey ahead.

Again, we’re writing for laymen, for people who want a brief glimpse of what to expect if charged with a felony.

Start from the premise that our criminal justice system is designed to protect society. It doesn’t always seem that way for a defendant. When a defendant comes into the system, everything feels like a personal attack, and the complicated proceedings aren’t always easy to understand.

Lawyers talk about substantive laws (the laws that congress passed) and about proceedings (the rules by which the system is supposed to operate). It isn’t a perfect system, because it has evolved over multiple decades, and it’s designed to operate at scale. A system designed to process more than 1 million people each year doesn’t look too closely at personal characteristics and circumstances. It’s much more like moving a cog through an elaborate machine.

All branches of law enforcement work together to prosecute crimes. Just as some offenders will make every effort to evade detection and apprehension by law-enforcement officers, representatives of the criminal justice system will make every effort to convict a defendant.

Many defendants complain that law enforcement officers and prosecutors operate outside the scope of the rules in order to get convictions. Unfortunately, complaining doesn’t solve any problems. Once a person comes into the system, it’s best to think methodically. We need to learn as much as possible, and then engineer our way to the best outcome.

Throughout this book and course, we’ll offer insight that defendants may use—along with their counsel—to prepare.

Practically speaking, defendants would be well advised to expect law enforcement officers and prosecutors to use every means available for them to achieve their ends. Ultimately, prosecutors want to solve crimes and convict. In a perfect world those representatives of justice would dot every "I" and cross every "T" as they follow the rules in both the letter and the spirit of the law.

Years of working with society's felons, however, frequently causes seasoned law enforcement officers to develop cynical perspectives of humanity. Sometimes, to get the outcome they want, they cut corners. They may even threaten. Let me give an example from a client that our team is working with now.

Sam is a healthcare professional. The prosecutor offered him an opportunity to plead guilty to a charge with a five-year cap. If Sam chose to exercise his right to a jury trial, the prosecutor threatened to bring charges against Sam’s wife, and to bring further charges that would expose Sam to more than 20 years in prison. Then, the prosecutor argued that Sam would have to agree to say that no one pressured, threatened, or induced him to take the plea.

From Sam’s perspective, the proceeding is inherently unfair. He would like to have had an opportunity to argue for his innocence. But he could not afford to expose his wife to the threat of criminal charges. He felt threatened and pressured to take the deal. Rather than justice, Sam said the prosecutor wanted a conviction.

Those who work in law enforcement tend to become ultra conservative. They may be rigid in their beliefs that people who are charged with crimes clearly did something wrong and ought to be punished. Such attitudes can result in offenders being charged with crimes that can result in convictions, as opposed to the offender being charged with precisely the crimes that the individual may have actually committed.

It would be wise, I think, for those who become entangled with the criminal justice process to anticipate a system influenced much more by Machiavelli, pursuing victory regardless of methods, rather than a system influenced by teachings of more enlightened leaders that encourage forgiveness, compassion, and concern for the individual.

The Structure:

In compliance with our nation's Constitution, legislators elected to both houses of the U.S. Congress have played a significant role in establishing a body of federal laws that are supposed to govern the behavior of citizens. The Constitution also provides legislators from each individual state with authority to establish their own code of criminal laws for their state, and their own criminal justice processes for enforcing those laws statewide. Although the different jurisdictions frequently collaborate, our nation actually operates several different criminal justice systems:

• We have a system for the federal government,
• We have a system for each state,
• We have a system for the military, and
• We have another system for the District of Columbia.

It's our responsibility as citizens to abide by these laws. When we do not, we subject ourselves to being charged with criminal offenses and experiencing the wrath of the criminal justice system.

Law enforcement officers are supposed to follow strictly prescribed procedures when charging a citizen with wrongdoing. In addition to federal and state rules for criminal procedure, published judicial opinions may also have an impact on criminal procedures.

Criminal procedures are complicated. They can be understood more easily when we think of the criminal justice system as a game.  I use this metaphor for clarity, not to trivialize the conflict between accused and accuser.

Offenders, or "defendants" act as opponents of law enforcement officers and prosecutors. Both sides want to win. The defendants want to be acquitted, or to receive the least restrictive sanction. On the other side, law enforcement officers and prosecutors want to convict. They frequently argue for defendants to receive severe sanctions, without consideration for individual characteristics or mitigating factors. A judge will make the ultimate decision.

In this "game" of criminal justice, the judge acts as referee. Judges are charged with the responsibility of ensuring that all participants of the game follow procedures to ensure that due process is achieved. Although there are many ways this game may begin, it usually starts when someone reports a crime to a member of law enforcement.

Once the Crime is Reported:

The criminal justice process usually begins when a crime is reported or otherwise discovered by law enforcement officers.  Law enforcement officers may learn about a crime in any number of ways.

• They may observe a crime being committed;
• They may learn about it because someone reports it;
• They may learn about it through investigation or by interrogating others.

Once law enforcement officers learn about a crime, it becomes a "reported crime" or a "known offense."

Pre-Arrest Investigation

Sometimes, as when law enforcement officers are present when a crime is being committed—or soon thereafter—the "investigation" begins with an on-scene arrest. Other times, as when law enforcement officers learn that a crime has been committed, but were not in a position to make an on-scene arrest, they have the responsibility of solving that crime.

They therefore launch a reactive investigation, where the officers will attempt to figure out:

• Whether a crime was in fact committed,
• Who committed the crime,
• What evidence there is of guilt, and
• How to locate the offender to make an arrest.

Proactive investigations, on the other hand, are aimed to solve crimes that are ongoing or that may take place in the future. These types of investigations place law enforcement officers in a position to uncover criminal activity, the specifics of which are not known, or where they do not have enough information to charge all whom may be participants in the crime.

Another type of pre-arrest investigation includes the prosecutorial investigation, which is generally conducted by a prosecutor. The prosecutor has the power to convene a grand jury (see below for discussion on the grand jury) and, through the power of the grand jury issue a subpoena. Individuals who receive such a subpoena must appear before the grand jury and answer questions that the prosecutor poses in the criminal investigation. 

Since the person who received the subpoena does not have counsel present during the questioning, and the entire grand jury proceeding is orchestrated by a prosecutor, it has become routine for grand juries to rubber stamp the recommendations of the prosecutor.

Arrest:

An arrest, of course, is when the law enforcement officer takes a person into custody. Sometimes, the arrest occurs at the scene of a crime. In cases that evolved from reactive or proactive investigations, on the other hand, the officers will obtain an arrest warrant—usually from a magistrate judge—before taking the person into custody.  In some cases, officers will allow the suspect to turn himself in. In other cases, law enforcement officers will make a spectacle. In those cases, the officers use an extreme show of force—frequently with weapons drawn—at an inconvenient time, like the break of dawn or during a person’s work hours.

Booking:

If the person was arrested publicly, the officers will search him. They may search his vehicle, home, or office. They’re looking for contraband, weapons, or evidence of a crime. Then they transport the suspect to a jail, a courthouse, or some other type of holding facility for further processing, or "booking."

During the booking procedure, the officers will conduct clerical procedures to memorialize the arrest. They record fingerprints and photograph the suspect (the well-known mug shots). If it's a minor crime, authorities may release the suspect from the holding facility. If the alleged crime is more serious in nature, authorities may hold the suspect for several hours, or even days, until he can appear before a judge who will determine whether bail is appropriate. If the offender is held in lockup, it is likely that he will be ordered to undergo a strip search.

Post-Arrest investigation:

Immediately after the arrest, the post-arrest investigation begins. The first step is when the officers search the person—and possibly his vehicle, home, or office—for evidence that can be used against him. After that, law enforcement officers may conclude that little else needs to be done (in the event that they caught the suspect in the act), or they may continue with many of the same types of techniques used in reactive and proactive investigations, such as interviews and searches.

Deciding to Charge:

When law enforcement officers witness a crime, they make a decision on whether to charge the suspected offender. Then, after the individual has been processed through booking, superior officers may review the arrest and decide whether to allow it to proceed. If the law enforcement agency chooses to proceed with prosecution, the prosecutors will then review the charge.

The prosecutor may interview the arresting officer and review the evidence to determine whether the case is worthy of a filing of the criminal charge. Reasons why a prosecutor may decline to file charges include:

• Insufficient evidence;
• Witness difficulties;
• Due process problems;
• Alternatives to prosecution; and
• Diversion programs that enable the suspect to avoid a criminal record.

Even if the prosecutor initially chooses to charge an individual, he may change his decision. Later, he may determine that the charge is not justified or that a lesser charge is more appropriate. In those cases, the prosecutor would have to file a motion before the court detailing the prosecutor's reasons to forego prosecution. The prosecutor would use the same screening factors identified above to determine the appropriateness of such a motion.

Filing the Complaint:

In many cases, if the charges pass the prosecutor's screening, the next step will come when the prosecutor files the complaint, most likely with a magistrate judge. The complaint is usually a fairly brief document, concisely detailing the criminal allegations. When a complaint is used as the charging instrument, someone must sign the complaint under oath indicating that he or she believes the factual allegations of the complaint to be true. Usually it's the victim or the investigating officer who signs the complaint. With the filing of the complaint, the suspect officially becomes a defendant in a criminal proceeding.

Review of the Arrest by Magistrate:

Many jurisdictions appoint magistrate judges to take some of the workload away from trial judges. Among other things, the magistrate judges handle many of the pre-trial matters.

After the prosecutor files the complaint with the court, but before the defendant's first appearance, for example, it frequently will be a magistrate judge who reviews the charges against the defendant. If the defendant was arrested without a warrant and remains in custody, the magistrate must determine whether probable cause exists for the defendant's continued detention. In the extremely rare instance that the judge finds that the prosecutor has not established probable cause, the prosecution either must produce more information or release the arrested person.

First Appearance:

With the filing of the complaint, the defendant is brought before the judge "without unnecessary delay." Several hours or several days may pass before the defendant sees a judge, depending on the circumstances.  If a defendant is arrested late on a Friday afternoon, he may not see the judge until the following Monday. 

The first appearance is generally a brief proceeding in which the magistrate determines that the person named on the complaint is the person before the court.  After the magistrate is convinced that the appropriate person is present, the judge will read the charges made against the defendant, identify the defendant's rights, and in felony cases, advise the defendant of the next step in the process, which is the preliminary hearing.  The magistrate then sets a date for the preliminary hearing, which the defendant may choose to waive.  The magistrate judge then will ask the defendant to enter a plea; if the defendant pleads not guilty, the judge will set a trial date.

Defendants are entitled to have counsel present at every stage of all felony criminal justice proceedings. If the individual cannot afford counsel, the court will provide a court-appointed attorney. A substantial percentage of all felony defendants go through their criminal justice proceedings with court-appointed counsel. These attorneys may work for a public defender service, or they may be in private practice but make themselves available to represent a limited number of indigent defendants. As a practical matter, the indigent defendants who use court-appointed counsel do not have much choice as to which attorney represents them.

Bail:

If the defendant is in custody at the time of his first appearance, one of the most important functions of the proceeding is for the magistrate judge to determine whether bail is appropriate. Bail establishes the conditions under which the defendant can be released from confinement until his case is decided.

If the magistrate judge agrees that bail is warranted in the case, he may require the defendant to post bail in cash, with a surety bond, or by signing over a deed to property. The judge also may accept the defendant's personal guarantee that he will present himself for trial.

In general, the magistrate is expected to impose such bail conditions as appear reasonably necessary to assure that the defendant will make court appearances as scheduled throughout the criminal justice proceedings. There is a presumption that a defendant is entitled to bail. Unfortunately, in drug cases or other serious offenses, judges refuse to release a defendant on bail. The magistrate generally looks to the seriousness of the crime, the defendant's criminal history, the defendant's risk of flight, and the defendant's ties to the community when deliberating over the appropriate bail conditions.

Preliminary Hearing:

After the first appearance, the next scheduled step is the preliminary hearing. Defendants who choose to plead guilty frequently waive the preliminary hearing. Some jurisdictions allow the prosecutor to bypass the preliminary hearing, which is yet another screening of the charge, by immediately obtaining a grand jury indictment.

In jurisdictions that allow preliminary hearings, magistrate judge presides over this first step. Since this phase of the process is adversarial in nature, the defendant should have counsel present to represent him. Generally, during this proceeding, the prosecutor will provide witnesses and the defendant's counsel will have the opportunity to cross-examine. After listening to the proceeding, the magistrate judge will determine whether to advance the case to the next level—which either is a grand jury review or the filing of a criminal information or complaint.

Grand Jury Review:

In the federal system, all felony prosecutions require a grand jury review. The only exception is when the defendant waives this review and agrees to be charged with a criminal complaint or information. 

States vary in their requirements for charges. The primary function of the grand jury review is to determine whether sufficient evidence exists to proceed with a trial on the criminal charges. A number of randomly chosen citizens sit on the grand jury panel, usually between 12 and 23. Those grand jurors listen as the prosecution presents its case. The prosecution uses its subpoena power to call witnesses before the grand jury, then questions those witnesses under oath.

Witnesses do not have the right to legal counsel during the grand jury proceeding, and there is no cross-examination. Accordingly, the proceeding is really a one-sided show for the prosecution.

When the prosecution does persuade the grand jury that there is merit to the criminal charge, the grand jury returns an indictment.  Although the grand jury is said to be a screening device, many in the legal profession ridicule it. Since defendants can’t speak on their own behalf, and targets may not even know that a prosecutor convened a grand jury, prosecutors have their way. They get to build arguments without giving the target an opportunity to respond. For that reason, experts say a prosecutor could use a grand jury to indict a ham sandwich.

When a grand jury does issue an indictment, that document is filed with the trial court, replacing the original complaint or accusatory instrument in the case. If a grand jury review was not sought, either because it was not required or it was waived, the prosecutor simply would file the criminal complaint or information with the trial court.

The Arraignment on the Criminal Information, Complaint, or Indictment:

After the accusatory instrument is filed with the trial court, the defendant is brought before the trial court to be informed of the charges against him. The trial court judge will ask the defendant how he pleads. Ordinarily, the options for the defendant are to plead guilty or not guilty.

This procedure is known as arraigning the defendant. In most cases, defendants plead not guilty at the earliest stages. This strategy gives the defendant more time to examine the strength of the government's case. It also allows time for the possible negotiation of more favorable conditions under which the defendant will agree to plead guilty—as most defendants eventually do.

Plea Bargaining and Proffers:

Prosecutors want defendants to plead guilty. Ultimately, they want a conviction. Trials require substantial amounts of government time and resources. Further, the outcome of a trial is uncertain.

Accordingly, prosecutors frequently grant concessions to induce defendants to plead guilty. For example, they may agree to dismiss certain charges, or they may agree not to prosecute a family member. Prosecutors want to avoid the time and expense of a trial. They may invite a defendant to proffer what he would show through trial, or the prosecutorial team may proffer what it could prove during a trial. All of those negotiations are designed to come to an agreement that would avoid a trial.

This procedure is frequently called plea bargaining. The prosecutor has the authority to charge a defendant with crimes that carry certain sentences. They also have the ability to recommend certain sentences within the statute or guideline range.

In the end, the judge imposes a sentence. Although the judge may listen to the prosecutor's sentencing recommendation, prosecutors do not have the power to bind a judge’s decision.

The vast majority of defendants enter guilty pleas. Frequently, defendants that plead guilty spend much of their time in prison second-guessing their decision. Experience convinces us that defendants who know they are guilty are vastly better off:

• To accept complete responsibility,
• To express remorse,
• To plead guilty at the earliest possible stage, and
• To work toward an effective sentence-mitigation strategy.

Like all decisions where liberty is at stake, deciding whether to plead guilty is a legal decision that must be made with the guidance of counsel.

Pre-Trial Motions:

After the arraignment, attorneys for the defendant may choose to file multiple pretrial motions before the trial court in an effort to help them develop a better understanding of the government's evidence. These motions may:

• Attack the charging instrument—either the criminal information or the grand jury process;
• Ask for an order directing the government to disclose evidence;
• Request the court to suppress evidence that the defendant believes was obtained in violation of the defendant's Constitutional rights.

The Trial

If the case has not been dismissed, and the defendant has not pled guilty, the next step in the criminal justice procedure is the trial. Defendants have a right to a speedy trial, but the defendant may waive that right. The prosecutor may look for excusable opportunities to extend the pretrial time period.

Both sides of the adversarial process look for every opportunity to prepare their case. In a typical jurisdiction, it is reasonable to expect five to ten months to pass from the time of arrest until the time the trial begins. Some trials may require only a few hours, others several weeks. Complicated cases may stretch into several months—or even years—before both sides present their closing arguments.

Although some defendants choose a bench trial, with only a judge to determine one's guilt or innocence, all felony defendants have the right to a jury trial. In a jury trial, a group of randomly selected citizens is charged with the responsibility of listening to the evidence that the trial judge allows to be presented.

The jurors are supposed to presume that the defendant is not guilty of the charges until the trial judge instructs them to begin deliberating on whether the prosecution has proven its case.

The trial begins with the voir dire process, which is the questioning of jurors. The judge, and in some jurisdictions the attorneys play a role in questioning the prospective jurors. During voir dire, both the defense and prosecution will try to filter prospective jurors that may be biased against their side.

The theory may hold that both sides are seeking justice. In reality, the prosecution is seeking a conviction and the defendant is seeking an acquittal. Each side is looking for the best group of jurors to deliver the desired verdict. The judge will determine how many prospective jurors each lawyer can remove from the potential jury.

Once the jury has been chosen and sworn, the prosecution and the defense may begin with an opening argument. After opening arguments, the prosecution will begin presenting its case, usually with live witnesses whom the defense may then cross-examine.

After the prosecution rests, the defense will have an opportunity to present its case and the prosecutor can cross-examine its witnesses. Then, after both sides have rested, the prosecutor will make a closing argument. The defendant's attorney will have an opportunity to make a closing argument. The prosecutor gets the last word, though, in response to the defense attorney's closing argument.

Finally, the judge will read a set of instructions to the jury. Once the judge releases the jury to the jury room, members are supposed to start considering all of the evidence as they deliberate on whether the prosecution has proven its case.

To obtain a conviction, each member of the jury must find the defendant guilty beyond a reasonable doubt.  Once the jury reaches a verdict, and it’s announced in court, the judge concludes the trial.

If it’s a guilty verdict, whether after a trial or as a result of a plea, a series of post-conviction proceedings will follow. In the next chapter, we’ll offer insight on post-conviction proceedings in the criminal justice system.

When I was 20 years old, I saw the movie Scarface, with Al Pacino. The idea of trafficking in cocaine looked exciting. I called acquaintances I had in Miami. Before long, I orchestrated sales in multiple-kilogram quantities. I coordinated people to transport cocaine across the country. Foolishly, I convinced me that since I didn't handle the cocaine myself, I wasn't really breaking the law.

As a precaution, long before I got caught, I hired a criminal defense lawyer. But I didn't have any idea on how what questions I ask to hire a lawyer. As a result, I gave hundreds of thousands of dollars to a lawyer who told me what I wanted to hear, rather than what I needed to hear.

In my case, the result of hiring the wrong lawyer translated into a 45-year prison term. Don't make the same mistake. Learn everything possible about the steps you should take. Learn how to find the right lawyer.

My partner, Justin Paperny, describes some similar challenges. He had been working as a stockbroker and he'd never been in trouble before. In Lessons from Prison, Justin reveals some of his bad decisions. By not understanding how to hire a lawyer, he flushed tens of thousands down the drain. When he wasn't honest with his lawyer, he put himself in a worse position, exposing him to significantly harsher punishment.

Our team interacts with thousands of people that face challenges with both civil and criminal law-enforcement agencies. Perhaps a story about Darren, one of our clients, may illustrate the challenge that people face when they don't quite know how to find a lawyer.

Hiring a Lawyer:

Darren had been in business for more than a decade and he worked with corporate lawyers extensively. He contacted our team when he realized that some of his decisions on the job were about to expose him to problems with regulatory agencies, and possibly to challenges with the Department of Justice.

Darren's problem reminded me of my own challenges. As I wrote in Lessons from Prison, I was a stockbroker at UBS when I learned that some of my decisions brought me to the attention of officials at the Securities and Exchange Commission. I knew that I needed a lawyer, but I didn't know how to find a lawyer.

When authorities like the SEC, the FCC, the FTC, or the FDA start asking questions about how to hire a lawyer.

Use Contacts:

Check with people you know who have had experience in working with criminal defense lawyers. Learn from their experiences. If you know someone who has been to prison, ask them what they heard about their experiences of working with criminal defense lawyers.

Learn about the costs before making a hiring decision.

Any defendant searching to find a lawyer may want to research the lawyer's area of expertise. If a lawyer has extensive experience in a given area, that lawyer may be more familiar with case law, statutes, arguments, and decisions that could prove beneficial.

Consider questions to ask before you speak with the lawyer.

• About each lawyer's rate for billable hours,
  • Important to know so a defendant can get an idea of how much to budget. In some cases, a lawyer may be able to resolve a plea negotiation and guilty plea in less than 100 billable hours, preparing for trial in federal court would likely require several hundred billable hours.

• About the lawyer's position on accepting a flat fee for the entire case,
  • A flat fee may or may not serve the interest of the defendant. Every case is different. On the plus side, a defendant that has a flat fee knows exactly how much to budget. On the negative side, a lawyer that receives a flat fee may be disinclined to devote much time to the case after he is paid.

• About the types of cases, he or she practiced,
  • A lawyer that specializes in defending tax cases may not be the best fit for a defendant facing criminal charges related to mail fraud that could result in the loss of liberty.

• About the lawyer's expertise in sentencing matters,
  • More than 75 percent of the people that face charges in federal court eventually have a sentencing hearing. What level of expertise does the prospective lawyer have with sentencing in the given jurisdiction?

• About the size of the lawyer's team,
  • A lawyer with a large team may be able to outsource work to associates or paralegals that bill at a lower hourly rate. The lawyer will have discretion, but it's helpful to know that the lawyer is cost-conscious of a defendant's resources.

• About the lawyer's philosophy on communication with clients,
  • Some lawyers make themselves readily available to defendants, even providing cell-phone numbers for communication. Other lawyers prefer to work independently, leaving defendants out of the communication loop.
• About whether the lawyer would be receptive to accepting a 5-hour retainer to get started, just to see if a good fit exists for a productive working relationship.
  • Some lawyers will not get started on a case without a minimum retainer. In federal cases, that initial retainer often exceeds $50,000. As Jim experienced, it's difficult to make an assessment on an initial free consultation.

If you're searching to find a lawyer, create a plan.

To the extent that it's possible, create a series of questions that will help you gauge whether the attorney is the right fit for you. It's important to be honest about your current situation and what you expect. If you go into a meeting with a lawyer and minimize your conduct, you may set yourself up for a bad outcome.

Brian, for example, was a director with a large financial services company. His employer had an insurance policy for "officers and directors." The policy would pay legal fees for people in specific positions. When federal authorities indicted Brian, he hired an experienced white-collar criminal defense attorney that would send all bills to the insurance company. The law firm launched a scorched-earth defense strategy, and quickly burned through the $500,000 cap on legal fees. When that insurance bill expired, the lawyers told Brian that he should plead guilty and that he would be responsible for the remainder of his bill—which amounted to an additional $75,000.

"I always knew that at the end of the day, I was going to plead guilty," Brian told me. "When I went to find a lawyer, I went along with what they said. They wanted to contest every document. But every time they read a document, they charged exorbitant fees. There bills showed that I was burning through more than $20,000 on legal fees some days."

If it's true that Brian knew he would eventually plead guilty, when he looked to find a lawyer, he may have been better suited to find an attorney with a strong track record of making great plea deals.

At the end of the day, any defendant that needs to learn how to find a lawyer should follow the path that Darren pursued.

To the extent possible, use contacts to ascertain the expertise, honesty, and competence of lawyers with regard to specific types of cases, in a specific jurisdiction. Approach those lawyers with a list of questions that will help you determine if you think that you work well together. To the extent possible, ask the lawyer to accept a limited engagement to test the waters. Most importantly, make certain that you have the financial resources available to support the decision you make.

When I was 20 years old, I saw the movie Scarface, with Al Pacino. The idea of trafficking in cocaine looked exciting. I called acquaintances I had in Miami. Before long, I orchestrated sales in multiple-kilogram quantities. I coordinated people to transport cocaine across the country. Foolishly, I convinced me that since I didn’t handle the cocaine myself, I wasn’t really breaking the law.

As a precaution, long before I got caught, I hired a criminal defense lawyer. But I didn’t have any idea on how what questions I ask to hire a lawyer. As a result, I gave hundreds of thousands of dollars to a lawyer who told me what I wanted to hear, rather than what I needed to hear.

In my case, the result of hiring the wrong lawyer translated into a 45-year prison term. Don’t make the same mistake. Learn everything possible about the steps you should take. Learn how to find the right lawyer.

My partner, Justin Paperny, describes some similar challenges. He had been working as a stockbroker and he’d never been in trouble before. In Lessons from Prison, Justin reveals some of his bad decisions. By not understanding how to hire a lawyer, he flushed tens of thousands down the drain. When he wasn’t honest with his lawyer, he put himself in a worse position, exposing him to significantly harsher punishment.

Our team interacts with thousands of people that face challenges with both civil and criminal law-enforcement agencies. Perhaps a story about Darren, one of our clients, may illustrate the challenge that people face when they don’t quite know how to find a lawyer. 

Hiring a Lawyer: 

Darren had been in business for more than a decade and he worked with corporate lawyers extensively. He contacted our team when he realized that some of his decisions on the job were about to expose him to problems with regulatory agencies, and possibly to challenges with the Department of Justice.

Darren’s problem reminded me of my own challenges. As I wrote in Lessons from Prison, I was a stockbroker at UBS when I learned that some of my decisions brought me to the attention of officials at the Securities and Exchange Commission. I knew that I needed a lawyer, but I didn’t know how to find a lawyer.

When authorities like the SEC, the FCC, the FTC, or the FDA start asking questions about how to hire a lawyer. 

Use Contacts: 

Check with people you know who have had experience in working with criminal defense lawyers. Learn from their experiences. If you know someone who has been to prison, ask them what they heard about their experiences of working with criminal defense lawyers. 

Learn about the costs before making a hiring decision. 

Any defendant searching to find a lawyer may want to research the lawyer’s area of expertise. If a lawyer has extensive experience in a given area, that lawyer may be more familiar with case law, statutes, arguments, and decisions that could prove beneficial.

Consider questions to ask before you speak with the lawyer.

• About each lawyer’s rate for billable hours,
  • Important to know so a defendant can get an idea of how much to budget. In some cases, a lawyer may be able to resolve a plea negotiation and guilty plea in less than 100 billable hours, preparing for trial in federal court would likely require several hundred billable hours.

• About the lawyer’s position on accepting a flat fee for the entire case,
  • A flat fee may or may not serve the interest of the defendant. Every case is different. On the plus side, a defendant that has a flat fee knows exactly how much to budget. On the negative side, a lawyer that receives a flat fee may be disinclined to devote much time to the case after he is paid.

• About the types of cases, he or she practiced,
  • A lawyer that specializes in defending tax cases may not be the best fit for a defendant facing criminal charges related to mail fraud that could result in the loss of liberty.

• About the lawyer’s expertise in sentencing matters,
  • More than 75 percent of the people that face charges in federal court eventually have a sentencing hearing. What level of expertise does the prospective lawyer have with sentencing in the given jurisdiction?

• About the size of the lawyer’s team,
  • A lawyer with a large team may be able to outsource work to associates or paralegals that bill at a lower hourly rate. The lawyer will have discretion, but it’s helpful to know that the lawyer is cost-conscious of a defendant’s resources.

• About the lawyer’s philosophy on communication with clients,
  • Some lawyers make themselves readily available to defendants, even providing cell-phone numbers for communication. Other lawyers prefer to work independently, leaving defendants out of the communication loop.
• About whether the lawyer would be receptive to accepting a 5-hour retainer to get started, just to see if a good fit exists for a productive working relationship.
  • Some lawyers will not get started on a case without a minimum retainer. In federal cases, that initial retainer often exceeds $50,000. As Jim experienced, it’s difficult to make an assessment on an initial free consultation.

If you’re searching to find a lawyer, create a plan.

To the extent that it’s possible, create a series of questions that will help you gauge whether the attorney is the right fit for you. It’s important to be honest about your current situation and what you expect. If you go into a meeting with a lawyer and minimize your conduct, you may set yourself up for a bad outcome.

Brian, for example, was a director with a large financial services company. His employer had an insurance policy for “officers and directors.” The policy would pay legal fees for people in specific positions. When federal authorities indicted Brian, he hired an experienced white-collar criminal defense attorney that would send all bills to the insurance company. The law firm launched a scorched-earth defense strategy, and quickly burned through the $500,000 cap on legal fees. When that insurance bill expired, the lawyers told Brian that he should plead guilty and that he would be responsible for the remainder of his bill—which amounted to an additional $75,000.

“I always knew that at the end of the day, I was going to plead guilty,” Brian told me. “When I went to find a lawyer, I went along with what they said. They wanted to contest every document. But every time they read a document, they charged exorbitant fees. There bills showed that I was burning through more than $20,000 on legal fees some days.”

If it’s true that Brian knew he would eventually plead guilty, when he looked to find a lawyer, he may have been better suited to find an attorney with a strong track record of making great plea deals.

At the end of the day, any defendant that needs to learn how to find a lawyer should follow the path that Darren pursued.

To the extent possible, use contacts to ascertain the expertise, honesty, and competence of lawyers with regard to specific types of cases, in a specific jurisdiction. Approach those lawyers with a list of questions that will help you determine if you think that you work well together. To the extent possible, ask the lawyer to accept a limited engagement to test the waters. Most importantly, make certain that you have the financial resources available to support the decision you make.

In the first chapter, we emphasized the complexities of the legal system. With myriad codes, decisions, procedures, guidelines, and jurisdictions, hiring a lawyer makes a lot of sense if a person faces any type of legal challenge. When nonexperts respond to the legal system without counsel, they can lose their rights or expose themselves to further problems. Even experienced attorneys hire lawyers when they anticipate that they may face problems from the legal system.

Since the legal system is so broad, attorneys tend to specialize in one or more practice areas. An attorney that specializes in taxation, for example, would likely know a great deal about the tax code and how to create structures that minimize liability. Yet a tax lawyer may not know much about federal criminal procedure. Likewise, a lawyer that works exclusively on sentencing matters in federal criminal court may not be the best attorney to hire if that person wants to negotiate a severance agreement with an employer.

With the law, as with any profession, it's crucial to hire experts.

Hiring Specialists:

If someone learns that a representative of law enforcement is asking questions, that is a good sign that an investigation is underway. And it's a good sign that the person needs a lawyer. The investigation may be civil, with questions from representatives of the SEC, the FTC, or state regulators. Since civil investigations frequently lead to criminal indictments, it's crucial to get appropriate guidance at the soonest possible time.

When the questions come from the FBI or DEA, the problem is more immediate. That's an obvious sign that a criminal investigation has begun. In either case, whether questions are coming from civil or criminal investigators, the time is ripe to begin researching lawyers.

As the cliché holds, in the land of the blind, the one-eyed man is king. It may be normal to call a friend or acquaintance to ask for free legal advice if a person learns that government regulators are asking questions. That friend may be a business lawyer, divorce lawyer, or labor lawyer. Obviously, any licensed attorney knows more about the law than a layman. Yet if a person lacks subject-matter expertise—even if the person practices law in another area—consider asking for a recommendation for an expert rather than asking for legal advice about a case that could potentially lead to criminal charges.

If a person has been charged with a crime, that criminal charge removes ambiguity. With any criminal charge, a person's liberty, livelihood, and reputation will be at stake. Defendants know:

• The jurisdiction,
• The type of charge, and to some extent,
• The potential exposure.

A person that faces a state charge for vehicular manslaughter would do well to hire a lawyer that specializes in criminal law, in the specific jurisdiction. On the other hand, a defendant that has been indicted for fraud in federal court requires a lawyer that specializes in white-collar criminal defense, with expertise in federal criminal proceedings and federal sentencing.

Given available resources, take affirmative steps to choose the right lawyer, in the right jurisdiction, with the right expertise.

Bars and Jurisdictions:

Each state has a professional association of lawyers that is known as the state bar. The state bar is responsible for issuing licenses to qualified members and overseeing how they practice law in a specific jurisdiction. To become a licensed attorney in any given state, our understanding is that a person must:

• Graduate from a law school accredited by the American Bar Association,
• Pass the state bar exam, and
• Have the appropriate moral character—as determined by the bar association—to represent others in a court of law.

Besides requiring a lawyer to have a license from the state bar, courts may also require a lawyer to go through additional screening or training in order to practice in a specific jurisdiction.

What is a jurisdiction?

In the first chapter, we noted that the United States has many criminal justice systems. Each state has its own criminal code, and each state is its own jurisdiction. Different levels of trial courts resolve disputes, or find facts, in each state system. The states will have an intermediate appellate court that reviews trial court decisions. And each state will have a high court that reviews appellate court decisions.

The federal government trumps state courts, with the U.S. Supreme Court being the highest court in the land. Beneath the Supreme Court, our country has 13 separate circuit courts. The circuit courts are regional appellate courts, overseeing a specific portion of the 94 district courts spread across the entire country. In the 94 separate federal district-court jurisdictions, more than 800 federal judges preside over findings of fact.

Several thousand judges (some appointed, some elected) preside over several hundred jurisdictions in state and federal courts across the country. A lawyer that specializes in one jurisdiction may or may not have expertise in another jurisdiction. For example, a lawyer that specializes in California state court may not be as familiar with federal sentencing law, which requires very specific knowledge.

When hiring a lawyer, individuals should consider what level of expertise the prospective lawyer has in a specific jurisdiction, and in the domain that applies to the specific type of case.

Public Defenders:

In 1963, the U.S. Supreme Court issued a landmark ruling known as Gideon v. Wainwright. With the Gideon case, the Court found that all people who have been charged with serious offenses have a Constitutional right to a lawyer. If a defendant cannot afford a lawyer, the Court will appoint a licensed attorney at no charge to the defendant.

Before appointing counsel to represent a defendant, the Court may require the defendant to submit a financial statement. After reviewing the defendant's ability to pay, the court will make a ruling on whether the defendant qualifies for appointed counsel.

Qualifying for appointed counsel does not necessarily mean that the defendant is utterly impoverished. It simply means that after reviewing the defendant's finances, the Court agrees that the defendant does not have sufficient financial capacity to hire an attorney. The court will then turn to the public defender's office, or the bar association to hire a lawyer that will represent the defendant.

Regardless of whether the court pays for the lawyer, or the defendant pays for the lawyer, a licensed attorney has a fiduciary duty to represent the defendant. In other words, the lawyer has a legal and ethical responsibility to represent the defendant to the best of his or her ability. Many lawyers aspire to build careers as public defenders, suggesting that they place a high value on social justice and assisting people in need.

Despite having to manage extensive caseloads, public defenders are often extremely effective advocates for their clients. They have access to an abundance of training and resources. Further, they frequently limit their representation to specific types of cases in specific jurisdictions.

Although a defendant has a Constitutional right to counsel, the defendant does not have a right to his specific choice of counsel. Many times, defendants find fault with the lawyer because the lawyer isn't available to answer every question, or to provide the support a person craves during a difficult time. When a court appoints an attorney to represent a defendant, the defendant should work to understand the role of the attorney, and to assist the attorney by striving to provide a narrative of what transpired.

Defendants are wise to remember that an attorney will not have all of the facts. Instead, the attorney will have to come up to speed by reading information in the charging instrument, and learning more from evidence collected through the process. The defendant can help the attorney get more context, but it will take time for the defense attorney to understand the complexities of the full story.

The attorney will assess evidence and the prosecution's ability to prove a case, reviewing charges and the evidence. Meanwhile, the defendant has a responsibility to speak honestly, providing background, context, and any evidence that may exonerate or mitigate the charges. The more effectively a defendant can help an attorney understand what happened, the more a defendant empowers the attorney to build a defense.

On the other hand, the defense attorney may not be in the best position to help the defendant understand implications of a conviction. For example, the defense attorney may not be able to speak with certainty about what happens after a sentencing hearing. If the defendant wants to know all the implications of a 60-month sentence, there will be factors that are outside a defense attorney's scope of practice. A defense attorney may not be the best source of information to respond to such questions as:

• Where will I serve my sentence?
• What will the atmosphere be like in the prison where I serve time?
• What types of programs will be available in prison?
• What can I do before I go in to qualify for the best programs?
• How will the First Step Act influence my life in prison?
• What can I do live to productively in prison?
• How can I manage my business while I'm in prison?
• How will my day be structured while I serve time?
• What will happen with my financial affairs while I'm in prison?
• How will I rebuild my life after I'm released?
• What can I do to position myself for the highest level of liberty once I get out?

Finding answers to those types of questions may help a defendant make a more informed decision when considering how to respond to a criminal charge.

Retaining Counsel:

When retaining counsel, it's important to think about a budget. Ordinarily, attorneys bill by the hour. The hourly rate will depend upon a lawyer's experience, reputation, jurisdiction, and area of expertise. In some jurisdictions, lawyers may work for less than $200 per hour. In other jurisdictions, lawyers with specific expertise may charge more than $2,000 per hour, in accordance with market rates. In jurisdictions like New York City, Washington DC, or San Francisco, defendants should expect to pay higher rates than in more rural jurisdictions. After all, office space in those cities is much more expensive than in cities like Tuscaloosa, Gary, and Jackson.

Whether a lawyer charges $200 per hour or $2,000 per hour, defendants should anticipate that hiring a lawyer will be a significant investment. The investment does not guarantee a victory in Court, or the outcome that a defendant wants. But it should guarantee the best possible representation, given the resources available to deal with facts and evidence of the case.

When hiring counsel, consider the duties and responsibilities of a lawyer. In order to provide "the best possible representation," lawyers must review every piece of evidence that prosecutors will consider. If there are multiple defendants in a case, the lawyers may have to review evidence against all of the defendants. Lawyers enhance their value by reviewing case law, statutes, rules of procedure, and judicial decisions that may or may not have anything to do with the case at hand. Lawyers may need to hire investigators, expert witnesses, or they may need to depose potential witnesses.

Defendants that hire counsel should expect lawyers to bill in accordance with their hourly rate for every minute they devote to the case. Those high hourly rates allow the lawyer to continue learning, or practicing, by staying current with relevant decisions—even though they're not billing for that time. If more than one lawyer is working on a case, the defendant should expect to pay hourly rates for multiple lawyers.

Before hiring counsel, defendants should consider their financial resources and be realistic about the length of time a lawyer will need to prepare. A defendant may have specific facts and know the origins of the case. Yet lawyers approach a case with a blank slate. They may offer a free consultation, but to truly mount a defense, they need to invest considerable amounts of time.

Defendants should expect to pay for that time, which can lead to legal fees that are much higher than the defendant expected.

Lawyers will have to sift through evidence. They may have to listen to telephone recordings that, cumulatively, last for dozens of hours. If the government confiscated computer files, there may be thousands of emails or text messages to read. Lawyers may need to interview witnesses, or review transcripts of what witnesses said in other proceedings.

To prepare a case effectively, lawyers can easily devote hundreds of hours. If multiple lawyers are assigned to a case, the bill may show thousands of hours, depending on complexity. Without sufficient preparation, a lawyer may not be able to give an accurate assessment of the best possible outcome. They may not even be able to advise whether it makes sense to proceed through trial or pursue a plea agreement.

Conflicts and Retainer Agreements:

In some cases, judges will not allow a lawyer to withdraw from a case after a lawyer signs on to represent a criminal defendant. For that reason, lawyers typically take a risk-averse approach when choosing which defendants to represent. They will not want to represent new clients that could potentially conflict with their representation of other clients.

Lawyers may ask defendants to sign "retainer agreements" before they accept a defendant as a client. The retainer agreement should detail hourly rates for each person or position that may work on the case. Partners may work at one hourly rate, associate lawyers may work at other hourly rates, paralegals may work at other hourly rates, and investigators may work at other hourly rates.

The retainer agreement may require the defendant to deposit a specific amount of money into the lawyer's trust account. The defendant consummates the agreement by signing a contract and depositing funds into the lawyer's trust account.

The lawyer should keep detailed records, recording how much time each person on the lawyer's team devotes to the case. At the end of the billing cycle, whether weekly, bi-weekly, or monthly, the law firm should create a statement showing billable hours. The lawyer will transfer funds (from the retainer) out of his trust account into his business-operating account to get paid for those billable hours. Some lawyers require the defendant to replenish the trust account with more funds at the start of each month, as specified in the retainer agreement.

The retainer agreement may also include language that allows the lawyer "to fire" the defendant. That means the lawyer may cite reasons why the lawyer does not want to work with the client further. Our team has worked with some lawyers that absolutely refuse to work with a client that hires outside consultants. Some defense attorneys do not want the client getting information from anywhere other than from the attorney. Yet, those same defense attorneys may not be available to respond to the defendant's questions about what to expect.

Plea Agreements:

All defendants have a constitutional right to plead not guilty and pursue the case in court. Scorched-earth defense strategies, however, can come at a high cost. With legal fees for trial that can easily rise to hundreds of thousands of dollars, and the threat of more onerous sanctions for those found guilty after trial, the vast majority of defendants settle criminal charges with plea agreements.

Prosecutors and defense attorneys may or may not be amenable to settling a case early. Sometimes, lawyers find it advantageous to push prosecutors to the limit in strategic acts of brinksmanship. If prosecutors believe that the defense team may be able to prevail, they may be more receptive to a favorable plea agreement. On the flip side, prosecutors may want to settle cases early in order to preserve prosecutorial resources.

In the federal system, prosecutors resolve the vast majority of cases with plea agreements. In exchange for the defendant's admission of guilt, prosecutors may make concessions. Those concessions may put limits on a defendant's exposure to sanctions.

Every case is different, and defendants should work closely with competent legal counsel when making decisions. Defendants should also do everything within their power to understand the system and all that follows after a criminal conviction.

When a defendant educates himself on how the system operates, he qualifies himself to make decisions from a position of strength. Too many people that come into the criminal justice system fail to understand the opportunity costs that come with every decision, including the length of time that passes before a guilty plea.

When hiring counsel, its crucial to be honest to save time and to help the attorney quarterback decisions. But hiring an attorney does not absolve the defendant from investing time and energy to learn more about:

• Strategies to prepare for sentencing,
• Doing the work to preparing for sentencing,
• Understanding sanctions that may follow sentencing,
• Preparing for a journey through the prison system,
• Preparing for the earliest possible release from prison,
• Understanding how to get best outcomes after prison

In subsequent chapters, we will offer insight defendants may consider on those subjects. The next chapter will offer thoughts to consider for those who need to find a criminal defense lawyer.

Thanks for listening to chapter 2 of our book: Prepare What defendants should know about the criminal justice system. Get the full book by visiting our websites at PrisonProfessors.com / White Collar Advice / or Resilient Courses.

Call or text: 949-205-6056. [email protected]

In the first chapter, we emphasized the complexities of the legal system. With myriad codes, decisions, procedures, guidelines, and jurisdictions, hiring a lawyer makes a lot of sense if a person faces any type of legal challenge. When nonexperts respond to the legal system without counsel, they can lose their rights or expose themselves to further problems.  Even experienced attorneys hire lawyers when they anticipate that they may face problems from the legal system.

Since the legal system is so broad, attorneys tend to specialize in one or more practice areas. An attorney that specializes in taxation, for example, would likely know a great deal about the tax code and how to create structures that minimize liability. Yet a tax lawyer may not know much about federal criminal procedure. Likewise, a lawyer that works exclusively on sentencing matters in federal criminal court may not be the best attorney to hire if that person wants to negotiate a severance agreement with an employer.

With the law, as with any profession, it’s crucial to hire experts.

Hiring Specialists:

If someone learns that a representative of law enforcement is asking questions, that is a good sign that an investigation is underway. And it’s a good sign that the person needs a lawyer. The investigation may be civil, with questions from representatives of the SEC, the FTC, or state regulators. Since civil investigations frequently lead to criminal indictments, it’s crucial to get appropriate guidance at the soonest possible time.

When the questions come from the FBI or DEA, the problem is more immediate. That’s an obvious sign that a criminal investigation has begun. In either case, whether questions are coming from civil or criminal investigators, the time is ripe to begin researching lawyers.

As the cliché holds, in the land of the blind, the one-eyed man is king. It may be normal to call a friend or acquaintance to ask for free legal advice if a person learns that government regulators are asking questions. That friend may be a business lawyer, divorce lawyer, or labor lawyer. Obviously, any licensed attorney knows more about the law than a layman. Yet if a person lacks subject-matter expertise—even if the person practices law in another area—consider asking for a recommendation for an expert rather than asking for legal advice about a case that could potentially lead to criminal charges.

If a person has been charged with a crime, that criminal charge removes ambiguity. With any criminal charge, a person’s liberty, livelihood, and reputation will be at stake. Defendants know:

• The jurisdiction,
• The type of charge, and to some extent,
• The potential exposure.

A person that faces a state charge for vehicular manslaughter would do well to hire a lawyer that specializes in criminal law, in the specific jurisdiction. On the other hand, a defendant that has been indicted for fraud in federal court requires a lawyer that specializes in white-collar criminal defense, with expertise in federal criminal proceedings and federal sentencing.

Given available resources, take affirmative steps to choose the right lawyer, in the right jurisdiction, with the right expertise.

Bars and Jurisdictions:

Each state has a professional association of lawyers that is known as the state bar.  The state bar is responsible for issuing licenses to qualified members and overseeing how they practice law in a specific jurisdiction. To become a licensed attorney in any given state, our understanding is that a person must:

• Graduate from a law school accredited by the American Bar Association,
• Pass the state bar exam, and
• Have the appropriate moral character—as determined by the bar association—to represent others in a court of law.

Besides requiring a lawyer to have a license from the state bar, courts may also require a lawyer to go through additional screening or training in order to practice in a specific jurisdiction.

What is a jurisdiction?

In the first chapter, we noted that the United States has many criminal justice systems. Each state has its own criminal code, and each state is its own jurisdiction. Different levels of trial courts resolve disputes, or find facts, in each state system. The states will have an intermediate appellate court that reviews trial court decisions. And each state will have a high court that reviews appellate court decisions.

The federal government trumps state courts, with the U.S. Supreme Court being the highest court in the land. Beneath the Supreme Court, our country has 13 separate circuit courts. The circuit courts are regional appellate courts, overseeing a specific portion of the 94 district courts spread across the entire country. In the 94 separate federal district-court jurisdictions, more than 800 federal judges preside over findings of fact.

Several thousand judges (some appointed, some elected) preside over several hundred jurisdictions in state and federal courts across the country. A lawyer that specializes in one jurisdiction may or may not have expertise in another jurisdiction. For example, a lawyer that specializes in California state court may not be as familiar with federal sentencing law, which requires very specific knowledge.

When hiring a lawyer, individuals should consider what level of expertise the prospective lawyer has in a specific jurisdiction, and in the domain that applies to the specific type of case.

Public Defenders:

In 1963, the U.S. Supreme Court issued a landmark ruling known as Gideon v. Wainwright. With the Gideon case, the Court found that all people who have been charged with serious offenses have a Constitutional right to a lawyer. If a defendant cannot afford a lawyer, the Court will appoint a licensed attorney at no charge to the defendant.

Before appointing counsel to represent a defendant, the Court may require the defendant to submit a financial statement. After reviewing the defendant’s ability to pay, the court will make a ruling on whether the defendant qualifies for appointed counsel.

Qualifying for appointed counsel does not necessarily mean that the defendant is utterly impoverished. It simply means that after reviewing the defendant’s finances, the Court agrees that the defendant does not have sufficient financial capacity to hire an attorney. The court will then turn to the public defender’s office, or the bar association to hire a lawyer that will represent the defendant.

Regardless of whether the court pays for the lawyer, or the defendant pays for the lawyer, a licensed attorney has a fiduciary duty to represent the defendant. In other words, the lawyer has a legal and ethical responsibility to represent the defendant to the best of his or her ability. Many lawyers aspire to build careers as public defenders, suggesting that they place a high value on social justice and assisting people in need.

Despite having to manage extensive caseloads, public defenders are often extremely effective advocates for their clients. They have access to an abundance of training and resources. Further, they frequently limit their representation to specific types of cases in specific jurisdictions.

Although a defendant has a Constitutional right to counsel, the defendant does not have a right to his specific choice of counsel. Many times, defendants find fault with the lawyer because the lawyer isn’t available to answer every question, or to provide the support a person craves during a difficult time. When a court appoints an attorney to represent a defendant, the defendant should work to understand the role of the attorney, and to assist the attorney by striving to provide a narrative of what transpired.

Defendants are wise to remember that an attorney will not have all of the facts. Instead, the attorney will have to come up to speed by reading information in the charging instrument, and learning more from evidence collected through the process. The defendant can help the attorney get more context, but it will take time for the defense attorney to understand the complexities of the full story.

The attorney will assess evidence and the prosecution’s ability to prove a case, reviewing charges and the evidence. Meanwhile, the defendant has a responsibility to speak honestly, providing background, context, and any evidence that may exonerate or mitigate the charges. The more effectively a defendant can help an attorney understand what happened, the more a defendant empowers the attorney to build a defense.

On the other hand, the defense attorney may not be in the best position to help the defendant understand implications of a conviction. For example, the defense attorney may not be able to speak with certainty about what happens after a sentencing hearing. If the defendant wants to know all the implications of a 60-month sentence, there will be factors that are outside a defense attorney’s scope of practice. A defense attorney may not be the best source of information to respond to such questions as:

• Where will I serve my sentence?
• What will the atmosphere be like in the prison where I serve time?
• What types of programs will be available in prison?
• What can I do before I go in to qualify for the best programs?
• How will the First Step Act influence my life in prison?
• What can I do live to productively in prison?
• How can I manage my business while I’m in prison?
• How will my day be structured while I serve time?
• What will happen with my financial affairs while I’m in prison?
• How will I rebuild my life after I’m released?
• What can I do to position myself for the highest level of liberty once I get out?

Finding answers to those types of questions may help a defendant make a more informed decision when considering how to respond to a criminal charge.

Retaining Counsel:

When retaining counsel, it’s important to think about a budget. Ordinarily, attorneys bill by the hour. The hourly rate will depend upon a lawyer’s experience, reputation, jurisdiction, and area of expertise. In some jurisdictions, lawyers may work for less than $200 per hour. In other jurisdictions, lawyers with specific expertise may charge more than $2,000 per hour, in accordance with market rates. In jurisdictions like New York City, Washington DC, or San Francisco, defendants should expect to pay higher rates than in more rural jurisdictions. After all, office space in those cities is much more expensive than in cities like Tuscaloosa, Gary, and Jackson.

Whether a lawyer charges $200 per hour or $2,000 per hour, defendants should anticipate that hiring a lawyer will be a significant investment. The investment does not guarantee a victory in Court, or the outcome that a defendant wants. But it should guarantee the best possible representation, given the resources available to deal with facts and evidence of the case.

When hiring counsel, consider the duties and responsibilities of a lawyer. In order to provide “the best possible representation,” lawyers must review every piece of evidence that prosecutors will consider. If there are multiple defendants in a case, the lawyers may have to review evidence against all of the defendants. Lawyers enhance their value by reviewing case law, statutes, rules of procedure, and judicial decisions that may or may not have anything to do with the case at hand. Lawyers may need to hire investigators, expert witnesses, or they may need to depose potential witnesses.

Defendants that hire counsel should expect lawyers to bill in accordance with their hourly rate for every minute they devote to the case. Those high hourly rates allow the lawyer to continue learning, or practicing, by staying current with relevant decisions—even though they’re not billing for that time. If more than one lawyer is working on a case, the defendant should expect to pay hourly rates for multiple lawyers.

Before hiring counsel, defendants should consider their financial resources and be realistic about the length of time a lawyer will need to prepare. A defendant may have specific facts and know the origins of the case. Yet lawyers approach a case with a blank slate. They may offer a free consultation, but to truly mount a defense, they need to invest considerable amounts of time.

Defendants should expect to pay for that time, which can lead to legal fees that are much higher than the defendant expected.

Lawyers will have to sift through evidence. They may have to listen to telephone recordings that, cumulatively, last for dozens of hours. If the government confiscated computer files, there may be thousands of emails or text messages to read. Lawyers may need to interview witnesses, or review transcripts of what witnesses said in other proceedings.

To prepare a case effectively, lawyers can easily devote hundreds of hours. If multiple lawyers are assigned to a case, the bill may show thousands of hours, depending on complexity. Without sufficient preparation, a lawyer may not be able to give an accurate assessment of the best possible outcome. They may not even be able to advise whether it makes sense to proceed through trial or pursue a plea agreement.

Conflicts and Retainer Agreements:

In some cases, judges will not allow a lawyer to withdraw from a case after a lawyer signs on to represent a criminal defendant. For that reason, lawyers typically take a risk-averse approach when choosing which defendants to represent. They will not want to represent new clients that could potentially conflict with their representation of other clients.

Lawyers may ask defendants to sign “retainer agreements” before they accept a defendant as a client. The retainer agreement should detail hourly rates for each person or position that may work on the case. Partners may work at one hourly rate, associate lawyers may work at other hourly rates, paralegals may work at other hourly rates, and investigators may work at other hourly rates.

The retainer agreement may require the defendant to deposit a specific amount of money into the lawyer’s trust account. The defendant consummates the agreement by signing a contract and depositing funds into the lawyer’s trust account.

The lawyer should keep detailed records, recording how much time each person on the lawyer’s team devotes to the case. At the end of the billing cycle, whether weekly, bi-weekly, or monthly, the law firm should create a statement showing billable hours. The lawyer will transfer funds (from the retainer) out of his trust account into his business-operating account to get paid for those billable hours. Some lawyers require the defendant to replenish the trust account with more funds at the start of each month, as specified in the retainer agreement.

The retainer agreement may also include language that allows the lawyer “to fire” the defendant. That means the lawyer may cite reasons why the lawyer does not want to work with the client further. Our team has worked with some lawyers that absolutely refuse to work with a client that hires outside consultants. Some defense attorneys do not want the client getting information from anywhere other than from the attorney. Yet, those same defense attorneys may not be available to respond to the defendant’s questions about what to expect.

Plea Agreements:

All defendants have a constitutional right to plead not guilty and pursue the case in court. Scorched-earth defense strategies, however, can come at a high cost. With legal fees for trial that can easily rise to hundreds of thousands of dollars, and the threat of more onerous sanctions for those found guilty after trial, the vast majority of defendants settle criminal charges with plea agreements.

Prosecutors and defense attorneys may or may not be amenable to settling a case early. Sometimes, lawyers find it advantageous to push prosecutors to the limit in strategic acts of brinksmanship. If prosecutors believe that the defense team may be able to prevail, they may be more receptive to a favorable plea agreement. On the flip side, prosecutors may want to settle cases early in order to preserve prosecutorial resources.

In the federal system, prosecutors resolve the vast majority of cases with plea agreements. In exchange for the defendant’s admission of guilt, prosecutors may make concessions. Those concessions may put limits on a defendant’s exposure to sanctions.

Every case is different, and defendants should work closely with competent legal counsel when making decisions. Defendants should also do everything within their power to understand the system and all that follows after a criminal conviction.

When a defendant educates himself on how the system operates, he qualifies himself to make decisions from a position of strength. Too many people that come into the criminal justice system fail to understand the opportunity costs that come with every decision, including the length of time that passes before a guilty plea.

When hiring counsel, its crucial to be honest to save time and to help the attorney quarterback decisions. But hiring an attorney does not absolve the defendant from investing time and energy to learn more about:

• Strategies to prepare for sentencing,
• Doing the work to preparing for sentencing,
• Understanding sanctions that may follow sentencing,
• Preparing for a journey through the prison system,
• Preparing for the earliest possible release from prison,
• Understanding how to get best outcomes after prison

In subsequent chapters, we will offer insight defendants may consider on those subjects. The next chapter will offer thoughts to consider for those who need to find a criminal defense lawyer.

Thanks for listening to chapter 2 of our book: Prepare What defendants should know about the criminal justice system. Get the full book by visiting our websites at PrisonProfessors.com / White Collar Advice / or Resilient Courses.

Call or text: 949-205-6056. [email protected]

Intro:

Welcome to Prison Professors podcast. I'm Michael Santos. We assist people who face court, sentencing, and prison. Visit us at PrisonProfessors.com to learn more. Call or text 949-205-6056 to connect with our team. For more info, send an email to [email protected].

Our answer to the first question is simple: A lot!

Many people that face law-enforcement challenges make decisions that exacerbate their problems. They don't mean to make troubles worse. Yet if they don't understand what's coming, what options they have, or where to turn for information that will help them make better decisions, they're vulnerable.

Targets of criminal investigations can unwittingly talk themselves into a criminal indictment. They may eliminate opportunities for a diversion from prosecution. Or they may expose themselves to tougher sanctions.

Competent legal counsel is essential. But if an individual doesn't have any experience with the criminal law, a primer on the system may be of help, too. With more knowledge, a layman will feel more competent when working with a criminal lawyer. Without knowledge, a person will always feel as if he's operating from a position of darkness, never knowing what's around the next turn.

By learning about the criminal justice system, a person can arm himself to work more effectively with lawyers. He may understand how to resolve complex dilemmas better. Although he may not like the limited choices available, he may feel more confident that he is going to make the best possible choice. When a person understands context, opportunity costs, and ramifications that follow each decision, that person empowers himself.

We can paraphrase an old Chinese proverb:

• • If you want to know the road ahead, ask someone that has come back.

When under the spotlight of a criminal investigation, it makes a great deal of sense to invest time and energy to learn. By learning, a person can make more informed decisions. Operating without knowledge makes us feel as if we're hanging from a string, as if we're marionette puppets. To stop that helpless feeling and restore confidence, we need to learn, then we need to make deliberate decisions that will influence best-possible outcomes.

Acquiring knowledge and becoming more literate about the system is a first step. As the cliché holds, the greatest fear is the fear of the unknown.

This book will be a great place to start.

Defendants learn quickly that problems with the criminal justice system can lead to enormous costs. It isn't only money that's at stake. Liberty is at stake. Future earning power is at stake. Collateral consequences—like access to banking, housing, career opportunities—can linger for a lifetime. Don't take our word for it. Easily verifiable statistics show the fallout for those who have been targeted by the criminal justice system.

It's crucial to prepare, and it makes a great deal of sense to learn.

The learning process begins with the reality that many people get sucked into the criminal justice system. Although going through the system is difficult, there are best-practice ways to prepare.

According to a 2019 report by the Prison Policy Initiative, the American criminal justice system holds almost 2.3 million people. They are confined to:

• • 1,719 state prisons,
• • 109 federal prisons,
• • 1,772 juvenile correctional facilities,
• • 3,163 local jails, and

80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

Not everyone that goes into the system gets the best outcome. Those that learn more can prepare more. By learning more about the system, they may be able to put themselves into a different algorithm, framing possibilities for a better outcome. By using good critical thinking skills, targets or defendants may influence decision makers to view them through a different lens, as if they're fellow human beings rather than cogs that must grind through a criminal justice machine.

All people facing challenges with the criminal justice system share common traits. Their family members, friends, and colleagues care about them. Defendants would like to live in a world where investigators, prosecutors, probation officers, and judges see them as normal citizens. They may have been charged with a crime, but defendants, like all people, have many attributes that are reflective of their character. A crime may be an aberration, a one-time act that is contextual and doesn't resemble how they would act in most circumstances.

Yet once the criminal justice system targets people for prosecution, stakeholders in the system turn their attention to the alleged criminal wrongdoing. A criminal charge can stop stakeholders from looking at an individual as a human being. In an instant, the person becomes a defendant. The goal, or objective is not always justice. It's a conviction followed by a punitive sanction.

Obviously, targets of criminal investigations would like to find some type of diversionary program to avoid prosecution. If they're prosecuted, they want the best possible outcome. For most people, the best outcome means the least restrictive or least punitive sanction—preferably a sentence that does not include incarceration.

But how does a person go about getting the best outcome? Unfortunately, statistics show that few people that encounter the criminal justice system know how to position themselves for the best possible result.

Who Are We?

My name is Michael Santos. Together, my partner and I create content to help people understand court proceedings, sentencing, and prison. Access our content through our different brands:

PrisonProfessors.com

WhiteCollarAdvice.com

ResilientCourses.com

Overview:

Relatively few Americans have more than a basic understanding of our nation's criminal justice system. On the surface, people know that law enforcement officers arrest people, prosecutors bring charges, and some defendants who are convicted go to jail or prison. Yet the system is much more complicated than that, with many moving parts.

Targets should begin from the premise that the system has one function: to protect society. It has a series of procedures designed to enforce the laws of this country. The more we understand about the system, the better we can prepare to navigate the challenges.

All branches of law enforcement work together to prosecute crimes. Just as some offenders will make every effort to evade detection and apprehension by law-enforcement, the different members of law enforcement will make every effort to solve a crime and win a conviction.

As citizens, we're all charged with the responsibility of abiding by our nation's laws. Legislators pass the bills and heads of state sign the bills into law. It's the criminal justice system that is responsible for enforcing the laws.

Few people understand that our country has 53 separate criminal justice systems, including one for each state, one for the District of Columbia, one for the military, and one for the federal government. Within the different systems, there are hundreds of jurisdictions, each with a series of trial courts that make findings of fact. Higher courts may review whether trial courts followed accepted procedures.

This elaborately complex system has evolved over hundreds of years. For a person that enters the system, it can feel like he's been dropped into a byzantine labyrinth, with so many turns and dimensions that make it easy to lose direction.

To put this into perspective, think of the system as a zero-sum game.

We use the metaphor of a game for clarity, not to trivialize the conflict between accused and accuser. Defendants are the opponents of investigators and prosecutors. Both sides want to win. The defendants want to be diverted from prosecutions, acquitted, or receive the least restrictive sanction. Law enforcement officers want to convict. Prosecutors want to ensure that the defendants receive what they deem as an appropriate sanction.

In this "game" of criminal justice, the judge acts as a referee. Judges strive to ensure that both sides of the game adhere to the rules, or due process. They must follow established procedures within the system. In some instances, juries will determine the outcome of this game. But in most cases, defendants will plead guilty before a judge. Then, the long game begins, with post-conviction proceedings. They include a pre-sentence investigation and a sentencing hearing. Classification processes follow. For some, the next step includes appeals, imprisonment, supervised release, and all of the collateral consequences that stay with the "felon" class.

The sooner a target, or a defendant starts preparing, the more influence that person can have on a better outcome.

As Mick Jagger sang, we don't always get what we want. But if we try sometimes, we just might find, we get what we need. To get what we need, we must work with a criminal defense attorney. And the more we know about what is to come, the better we prepare ourselves to help our lawyers get us the best outcome. For example, if we know what follows in prison, we may be in a better position to understand the impact of a plea agreement or a prison term. In all cases, knowledge can help us make more informed decisions and restore confidence.

In the next chapter, we'll cover some thoughts to consider when working with a criminal defense attorney.

Outro:

Thanks for listening to the prison professors podcast. Please subscribe. For more information on how we can help you prepare for court, sentencing, or prison, connect with us at [email protected]

Intro:

Welcome to Prison Professors podcast. I’m Michael Santos. We assist people who face court, sentencing, and prison. Visit us at PrisonProfessors.com to learn more. Call or text 949-205-6056 to connect with our team. For more info, send an email to [email protected].

Our answer to the first question is simple: A lot!

Many people that face law-enforcement challenges make decisions that exacerbate their problems. They don’t mean to make troubles worse. Yet if they don’t understand what’s coming, what options they have, or where to turn for information that will help them make better decisions, they’re vulnerable.

Targets of criminal investigations can unwittingly talk themselves into a criminal indictment. They may eliminate opportunities for a diversion from prosecution. Or they may expose themselves to tougher sanctions.

Competent legal counsel is essential. But if an individual doesn’t have any experience with the criminal law, a primer on the system may be of help, too. With more knowledge, a layman will feel more competent when working with a criminal lawyer. Without knowledge, a person will always feel as if he’s operating from a position of darkness, never knowing what’s around the next turn.

By learning about the criminal justice system, a person can arm himself to work more effectively with lawyers. He may understand how to resolve complex dilemmas better. Although he may not like the limited choices available, he may feel more confident that he is going to make the best possible choice. When a person understands context, opportunity costs, and ramifications that follow each decision, that person empowers himself.

We can paraphrase an old Chinese proverb:

• • If you want to know the road ahead, ask someone that has come back.

When under the spotlight of a criminal investigation, it makes a great deal of sense to invest time and energy to learn. By learning, a person can make more informed decisions. Operating without knowledge makes us feel as if we’re hanging from a string, as if we’re marionette puppets. To stop that helpless feeling and restore confidence, we need to learn, then we need to make deliberate decisions that will influence best-possible outcomes.

Acquiring knowledge and becoming more literate about the system is a first step. As the cliché holds, the greatest fear is the fear of the unknown.

This book will be a great place to start.

Defendants learn quickly that problems with the criminal justice system can lead to enormous costs. It isn’t only money that’s at stake. Liberty is at stake. Future earning power is at stake. Collateral consequences—like access to banking, housing, career opportunities—can linger for a lifetime. Don’t take our word for it. Easily verifiable statistics show the fallout for those who have been targeted by the criminal justice system.

It’s crucial to prepare, and it makes a great deal of sense to learn.

The learning process begins with the reality that many people get sucked into the criminal justice system. Although going through the system is difficult, there are best-practice ways to prepare.

According to a 2019 report by the Prison Policy Initiative, the American criminal justice system holds almost 2.3 million people. They are confined to:

• • 1,719 state prisons,
• • 109 federal prisons,
• • 1,772 juvenile correctional facilities,
• • 3,163 local jails, and

80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

Not everyone that goes into the system gets the best outcome. Those that learn more can prepare more. By learning more about the system, they may be able to put themselves into a different algorithm, framing possibilities for a better outcome. By using good critical thinking skills, targets or defendants may influence decision makers to view them through a different lens, as if they’re fellow human beings rather than cogs that must grind through a criminal justice machine.

All people facing challenges with the criminal justice system share common traits. Their family members, friends, and colleagues care about them. Defendants would like to live in a world where investigators, prosecutors, probation officers, and judges see them as normal citizens. They may have been charged with a crime, but defendants, like all people, have many attributes that are reflective of their character. A crime may be an aberration, a one-time act that is contextual and doesn’t resemble how they would act in most circumstances.

Yet once the criminal justice system targets people for prosecution, stakeholders in the system turn their attention to the alleged criminal wrongdoing. A criminal charge can stop stakeholders from looking at an individual as a human being. In an instant, the person becomes a defendant. The goal, or objective is not always justice. It’s a conviction followed by a punitive sanction.

Obviously, targets of criminal investigations would like to find some type of diversionary program to avoid prosecution. If they’re prosecuted, they want the best possible outcome. For most people, the best outcome means the least restrictive or least punitive sanction—preferably a sentence that does not include incarceration.

But how does a person go about getting the best outcome? Unfortunately, statistics show that few people that encounter the criminal justice system know how to position themselves for the best possible result.

Who Are We?

My name is Michael Santos. Together, my partner and I create content to help people understand court proceedings, sentencing, and prison. Access our content through our different brands:

PrisonProfessors.com

WhiteCollarAdvice.com

ResilientCourses.com

Overview:

Relatively few Americans have more than a basic understanding of our nation’s criminal justice system. On the surface, people know that law enforcement officers arrest people, prosecutors bring charges, and some defendants who are convicted go to jail or prison. Yet the system is much more complicated than that, with many moving parts.

Targets should begin from the premise that the system has one function: to protect society. It has a series of procedures designed to enforce the laws of this country. The more we understand about the system, the better we can prepare to navigate the challenges.

All branches of law enforcement work together to prosecute crimes. Just as some offenders will make every effort to evade detection and apprehension by law-enforcement, the different members of law enforcement will make every effort to solve a crime and win a conviction.

As citizens, we’re all charged with the responsibility of abiding by our nation’s laws. Legislators pass the bills and heads of state sign the bills into law. It’s the criminal justice system that is responsible for enforcing the laws.

Few people understand that our country has 53 separate criminal justice systems, including one for each state, one for the District of Columbia, one for the military, and one for the federal government. Within the different systems, there are hundreds of jurisdictions, each with a series of trial courts that make findings of fact. Higher courts may review whether trial courts followed accepted procedures.

This elaborately complex system has evolved over hundreds of years. For a person that enters the system, it can feel like he’s been dropped into a byzantine labyrinth, with so many turns and dimensions that make it easy to lose direction.

To put this into perspective, think of the system as a zero-sum game.

We use the metaphor of a game for clarity, not to trivialize the conflict between accused and accuser. Defendants are the opponents of investigators and prosecutors. Both sides want to win. The defendants want to be diverted from prosecutions, acquitted, or receive the least restrictive sanction. Law enforcement officers want to convict. Prosecutors want to ensure that the defendants receive what they deem as an appropriate sanction.

In this “game” of criminal justice, the judge acts as a referee. Judges strive to ensure that both sides of the game adhere to the rules, or due process. They must follow established procedures within the system. In some instances, juries will determine the outcome of this game. But in most cases, defendants will plead guilty before a judge. Then, the long game begins, with post-conviction proceedings. They include a pre-sentence investigation and a sentencing hearing. Classification processes follow. For some, the next step includes appeals, imprisonment, supervised release, and all of the collateral consequences that stay with the “felon” class.

The sooner a target, or a defendant starts preparing, the more influence that person can have on a better outcome.

As Mick Jagger sang, we don’t always get what we want. But if we try sometimes, we just might find, we get what we need. To get what we need, we must work with a criminal defense attorney. And the more we know about what is to come, the better we prepare ourselves to help our lawyers get us the best outcome. For example, if we know what follows in prison, we may be in a better position to understand the impact of a plea agreement or a prison term. In all cases, knowledge can help us make more informed decisions and restore confidence.

In the next chapter, we’ll cover some thoughts to consider when working with a criminal defense attorney.

Outro:

Thanks for listening to the prison professors podcast. Please subscribe. For more information on how we can help you prepare for court, sentencing, or prison, connect with us at [email protected]