There are stories that I heard from my lawyer of clients getting sentenced and then committing suicide because they “thought that they’d never make it”. Death is permanent; prison, in most cases is not, there is almost always an end date. The section of content is going to take you from when you first get wind that something bad is about to happen. You are not so naive and innocent that getting caught never crossed your mind. When those notions begin to create a sick feeling in your stomach, you know that serious happenings are around the corner. Here is the chronology of events that occur right about the time of that sick feeling.
You start noticing strange things. I cannot place my finger on exactly what they are but I will give you some of my personal experiences which should give you a good idea of how things were and if they fit your situation in the least. It might begin as a paranoid feeling, let’s be honest here, we are doing or have done some things that were not 100% legit. Maybe guilty conscience is setting in but I believe it’s a sixth sense we all possess and it’s the indicator of impending doom. And you are right, people you know may start acting strange or differently around you. No, it’s not you; it’s who has been speaking with them. When the investigation into you has begun, you are usually the last to know. Friends or even family members get questioned and during these discussions with the authorities are told not to tell you of them, or they may be charged with Obstruction of Justice. The authorities are able to get whatever they need from those closest to you with the threat of charges like Obstruction or Lying to an Officer is another threat that gets the innocent to say whatever is needed to get the information. These strange feelings that you are getting are not your imagination, they are in fact very real signs of a bad storm on the horizon.
When the investigation goes on long enough, your eyes get opened and it is no longer a secret. When they go to your bank, your accountant, your doctor, your stockbroker, the check cashing store, your credit card company, the telephone company, the cell phone provider, your internet service provider…someone in that string of relationships will eventually tip you off that something is up. Sure enough, they got a subpoena for YOUR records from the last five years. Now your stomach really gets tied up in knots. Now it’s not a feeling, it’s a confirmation of the past few weeks of “feeling weird”. You are being accused of “something” but you don’t really know what it is. You call your lawyer.
Your lawyer is your salvation, or so you think. You meet with them and talk over what you think it “might be”, you speak in vague terms about some little thing that it could be, but for whatever reason, you really never let out what you already know it is. If your lawyer is a good lawyer, they will tell you, “do NOT speak to anyone about this or say anything of substance to anyone including family, do NOT use your cellphone or home phone for any conversation that you wouldn’t want another to hear (they probably have your phone tapped – and it most likely has been there for many weeks prior), do NOT add to this potential situation by creating more problems trying to cover up past perceived mistakes, and lastly get me a retainer check in the amount of $20,000.”
Whew, $20,000 and this will all be taken care of…you think!! But this is just the beginning.
Several weeks or even months will pass, you hear nothing, your lawyer hears nothing and you start to get back to normal in terms of your stress being reduced and you’re not thinking about it every waking moment. But, it was a big scare, you swear that you’ll never do anything remotely illegal again; you stopped driving over the speed limit, no more shortcuts for you.
Grand Jury Target
Unbeknownst to you, the grand jury convenes and you are most likely NOT invited to the party. That is because the “target” is the last to know. Since you are in the dark about it, it’ll take someone tipping you off to even have any knowledge that it’s going on.
When you get a phone call from someone close to you and they give you the news, “I got subpoenaed to testify before the Grand Jury” the sick feelings start again and this time they are stronger and the sensation is sickening. There is that chance that no one will call, but the likelihood is that there is at least someone in your clan that will opt to tell you. You call your lawyer and ask every sort of question you can think of to get some idea of what this process is. What you’ll find out is that when someone testifies before a grand jury, the process is unlike any other courtroom proceeding. The person giving testimony is NOT represented by their counsel in that room. There are a few dozen people on the grand jury, there is a judge and only the prosecutor is asking questions. It is very rare that a prosecutor seeking an indictment against someone gets turned down. In the legal community, the defense lawyers will tell you, “The prosecution can indict a ham sandwich”. That isn’t the kind of statement your lawyer can say to make you feel any better about the future. Since the entire process is done in secret, you have no idea how it went, the witnesses are sworn to silence and secrecy so don’t start bothering them to give you information, as witness interfering will end up only adding to your woes.
You are now found to have (at least by the grand jury) a "likelihood of guilt" imposed upon you and a judge issues a warrant for your arrest. There are various ways that this warrant is carried out. The serving jurisdiction may come to your home with a "Notice to Appear" and you are not taken into custody. This is very rare but it does happen. Most of the time, the indictment is sealed and your visit by the authorities is not so civilized.
The more likely way is that there is a knock on the door at 5:00am Tuesday morning; the house is surrounded by collection of agents of the prosecuting jurisdiction wearing bullet-proof vests and brandishing high powered automatic weapons. They come for you and leave with you shackled and bewildered. Your family is mortified at the sight of their family member being taken away by a small army. You're placed in the back of a car with your hands behind your back, your mind is full of questions that you dare not ask. This is the beginning of a long dark journey and not one leg of it is pleasant.
You are going to a county, state or federal booking facility. If your charges are of a high profile nature, then the authorities will have notified the news ahead of your arrival and the officers bringing you in are going to parade you in front of the television cameras. They call this the "perp walk". Try as you will there is no angle where you can hide and you are going to be a headliner on the nightly news. Now, everyone knows about your ordeal. In their minds, you are already guilty.
You are brought into the area where there are large holding cells that already have a few people waiting for the same thing that you are. They remove your handcuffs and walk you into this stark concrete jail cell. When you hear the door slam, an ominous echoing tells you, you aren't going anywhere for a while. In the beginning, you have the shakes, then you get nauseous and/or feel like you are going to have diarrhea. After a few hours of sitting on a concrete seat or on the floor someone at the facility finally comes for you.
They begin asking you questions about your life, where you work, where you live, where you were born, everything they feel that is pertinent. After the "interview" you are taken unshackled to a room where they have you strip naked and take a shower and once they have treated you with a de-licing spray issue you a set of prison clothes along with some bedding material. You get two sheets, a holey blanket but NO pillow. Once outfitted you are marched to the "pod" in the facility that is going to house you for the time being along with about 50-60 other lucky people.
Arraignment and Bail
At some point in the near future, you are able to communicate with someone on the outside. The pod will have telephones but if you don't have money on your account you will have to "call collect". The first call is usually home. Although you feel better making some contact, this is not a good call. You have so much to say but so little time to say it as these pods are full of other inmates that want to use the phones, too. Typically there are no more than five phones for all your new roommates or "cellies" to use. You are emotional and want to cry but you have to remember where you are. You cannot cry nor can you show any weakness, eventually you get around to getting in touch with your lawyer and they already have the information and have read the indictment. They are prepared for the arraignment which is essentially the reading of the indictment by a magistrate judge. This is where you plead "not guilty". This is also where the bail is set. If your lawyer is good and prepared they have negotiated the bail amount and made arrangements to get it to the court. If that goes smooth, your bail is paid and you are released a few hours. If you cannot afford your bail or if the judge decides that he will not you grant bail, you are escorted back to the pod and will live there until the trial.
If you are out on bail, you will have many terms and conditions attached to it that if violated will send you back to the pod. Some people take bail seriously and have the privilege of remaining free while others take risks. You can have your bail revoked for failing a drug test, being intoxicated or getting arrested for something petty. The supervisors will visit your home unexpectedly and ask you to take a breathalyzer, a drug test or search your home for contraband. You may be on a more lenient supervision system where you call in and they tell you if you need to report to their office. Regardless, this is the time to be on your best behavior.
Now you have to prepare for trial. You are going to be spending a huge amount of time with your attorney. You begin to learn all the vocabulary associated with the legal process, beginning with the “rule of law” and the formats that you will become familiar with. If your attorney is very honest and very skilled they will lay out the facts of prosecution in the real world. In the federal system, the prosecution has a 97% conviction rate and in the state the odds of beating them are substantially better. The only lawyer for you is one that you KNOW for a fact has actually tried a case in open court. This advice leads me to illustrate a scenario between lawyer and client that happens so frequently that it should be illegal, but lawyers are generally incompetent because they have not faced federal or state prosecutors with live bullets flying. Without that experience, this is exactly what will happen…
The first meeting about the case with your lawyer after the arraignment and release takes place in their wood paneled, posh office in downtown wherever. You look at the design of what appears to be a successful attorney’s practice. There are massive book shelves lined with impressive looking law books, university degrees hanging from the wall and expensive furniture to sit on. This office is designed strictly to make you feel like you are in the right place, a place where this lawyer can defend you and get rid of this nightmare.
You begin to outline the case and the accusations in the indictment. Your lawyer asks you a zillion questions, they scribble pages of notes on a legal pad as you tell your side of the story in opposition to the story the prosecution has outlined in the indictment. Your meeting goes on for a few hours. You have only two real questions, “what are my chances?” and “what is this going to cost?”
Your lawyer shows real confidence at this point, they will WITHOUT a doubt claim “you can win this, their case isn’t that strong.” You hear those magic words and feel relief. Okay, you’re now ready for the answer to the second question. This one is also replied with confidence by your attorney, as they know they have you in the most positive state of mind you will EVER be in throughout this entire process. They might “qualify you” with additional questions like, “how much money do you have to defend yourself?” Or, if the the prosecution is asking for your assets to be seized, your lawyer will ascertain whether freezing is likely. Because if you cannot pay your attorney, they will hustle you out of their office faster than a speeding bullet.
Some of these issues might have been covered before the indictment if you had been conferring with the lawyer about the potential of a case being brought. If your money is in peril, the lawyer might have had this conversation before the prosecution could even freeze your assets, thereby killing any chance of defending yourself. If you do not have money, forget the notion that a “free lawyer” or one provided by the court could ever possibly prevail in a trial. This is not Hollywood and there are no John Grisham novel super-lawyers coming to the rescue. Winning a case in open court is all about having money, and odds say that all the money in the world might still not do it.
The time that you are not with the attorney, your mind is continuously with the case. You are focused on all the elements of the case. The problem in the beginning is that your “self-talk” is about your innocence, your alibi, your “plausible deniability” and a justification of why you did what you did and how it got you into this jackpot. You self-talk convinces you that there is a way out, you are a smooth talker and if you say it enough times in your head it will eventually work out in your favor.
Now comes the next phase where the part of the other side, the government must provide Jencks material. It is their evidence that got you indicted by the grand jury.
The Jencks Act,18 U.S.C.§ 3500, provides that the government (prosecutor) is required to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only after the witness has testified. Jencks materialis evidence that is used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. The material is described asinculpatory, favoring the United States government’s prosecution of acriminal defendant. The Jencks Act also covers other documents related to the testimony, or relied upon by government witnesses at trial. Typically, the material may consist of police notes, memorandum, reports, summaries, letters or verbatim transcripts used by government agents or employees to testify at trial
This is when it dawns on you that all that self-talk bravado that has bolstered your confidence over the past few weeks are worth zero. Here is the crux of their case and here is who might be testifying against you. Ahh, might be, you say? Well, this is going to shock you but prosecutors use the sneakiest of tricks when trying a case. The defense lawyers call it “trial by ambush”. The Jencks material is only what they present, not what they have held back. Let me give you a scenario.
The investigators collect their evidence and present it to the prosecutors. The prosecutors fashion their case using the lowest common denominator of witnesses to present to the grand jury. Remember that only the prosecutor gets to question the witness – and they use the lower level witnesses to get their questions answered on the record in the most damaging way. When it comes to the trial, these low level witnesses who got the indictment (but their testimony is now on the record) are never used, so YOUR attorney has nothing impeachable to use at the ambush. The higher value witnesses are called during trial, your defense team has some idea who they are but it’s going to take money for investigators to get some dirt on them to try to impeach their testimony.
The trial for the defendant is a whirlwind of lawyer legalese and posturing that cause your emotions to swing from very high to very low in a matter of moments. These gyrations are the normal course of events for a trial that sees each side making points in a dramatic court battle which only affects the defendant, no one else. Therefore the swings are gut-wrenching from that seat and often where they see optimism comes and goes. This could last weeks or months depending upon the complexity of the case and the amount of exhibits and witnesses that get paraded before the judge and jury.
The hardest part for the defendant has to be watching former friends, relatives and confidantes get up on the witness stand twist the facts of your life to fit the prosecution's theory of the case. You know there is some truth in what they are saying, but there is also some fabrication to make the whole story fit together. It is that injustice that makes you question the legal process. If the prosecution has to twist the facts to prove the case, is that what this system is all about? How many times does the twisting of facts convict someone by the scantiest of margins and send them to prison for a draconian sentence?
The verdict is another lesson in controlling your emotions. Your future is riding on the results of the trial and what the jury believed or didn't. They go into their jury room and argue with each other about the merits of the case and what lawyer did a better job. It's like an election, except the voters can send you to prison with an adverse verdict.
MORE TO COME...
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