EARLY REPRESENTATION PROCESSLaw Office of the Public Defender

Bail

Bail is intended to guarantee you will appear for your court appearances. You do not have a right to bail if you are charged with a crime that carries a penalty of either life imprisonment or death, which may include murder, sexual battery, kidnapping, burglary and robbery. To lower the amount of bail or to have the court set bail, the judge must be convinced you will be in court when notified. You may be asked several questions such as whether you have a family living in the area, whether you are working, whether you have been bailed out before and appeared in court on time, where you live and your criminal record. If the court finds you are not charged with a serious crime, that you will appear when required in court or that you have a responsible person in the community who will guarantee your appearance in court, the judge may decide to release you without bail or on pretrial release . A motion may be filed by your assistant public defender for reduction of bail if the bail in your case seems high in view of the charge, the evidence against you, or your personal background.

Intake

The first person you will see from the Law Office of Public Defender may be either an assistant public defender, a witness interviewer, an investigator or a legal intern for what is called intake. Even though this interviewer may not be an attorney, the information you give is confidential and will be given to your lawyer. You will be asked a number of questions. It is important to cooperate fully and answer all questions truthfully. If you have not filled out a public defender application for our services already in court, that will be handled at this time.  If you are not in jail and have had the office appointed to handle your case, you must contact the Public Defender’s Office as soon as possible to make an appointment to see your lawyer. Please do not wait until the day before your trial.

Jail Visits

The Public Defender’s staff visits the jails to meet with our clients. We will meet with you when necessary. If telephones are available at the jail, a call will often solve your problem. Do not discuss the facts of your case on the telephone or in the hearing of other people. You should request a jail visit when it is important that you and your lawyer meet in person. Only the people in charge of the jail can decide if your friends and relatives can visit you. Questions about food, clothing and medicine should also be directed to the people in charge of the jail

Filing Formal Charges

If you are in jail, the prosecutor has 21 days to file formal charges against you. If formal charges are not filed within 21 days, your lawyer may schedule a preliminary hearing before a judge. It is entirely up to the prosecutor whether to take your case to court. Even if the witnesses do not want to testify against you, charges may not be dropped. The prosecutor can force witnesses to come to court.

Arraignment

After your first appearance, an arraignment will be scheduled in your case. At most arraignments, your charges are read, a lawyer from the Public Defender’s Office enters your plea and, if the plea is “not guilty,” requests either a trial by jury or judge. A later court date will be set at that time.

Investigating Your Case

Anything you tell a public defender investigator or intern, just as anything you tell your lawyer, is confidential. Do not discuss your case with anyone else including your family, friends, cellmates, news reporters, probation officer or police officers unless your lawyer says you can, since all of these people can be made to testify against you. Your lawyer and investigator must know the truth, even if you are guilty, think you are guilty, or the truth makes you look guilty. If the truth is known, your lawyers will not be caught off guard and will be able to better represent you.

You can help in the investigation of your case by giving the names and addresses of witnesses. If you are out of jail, you can help your case by finding witnesses and notifying your lawyer by sending a letter, calling or coming to the office with the names and addresses. If you are in jail, try to have your family and friends find witnesses. Witnesses may be anyone who can testify to any circumstances which may show you are not guilty or which may tend to show that the crime was not as serious as the prosecutor claims.

Your investigator may interview the witnesses against you and try to locate defense witnesses. Accurate names and addresses are helpful. You should not, however, contact witnesses for the prosecution or send other people to talk to them for you. If you do, you may be charged with tampering with witnesses.

Preparing Your Case

We cannot represent you on your case until we are appointed. Once appointed, we will interview you and get a copy of the charges against you. This all takes time. Each case is different. Complicated cases naturally take longer than other cases. Remember, an extra month or two in jail may save you from years in prison. Your lawyer must be thoroughly prepared before he can go into court for you. If you do not understand why your case is taking so long to prepare, talk to your lawyer and he will explain it to you.

If you are unhappy with the way your case is being handled, talk to your lawyer. If you are still not satisfied, state your complaint in writing and mail it to the Public Defender. You are not entitled to the lawyer of your choice unless you can hire a private lawyer or qualify to represent yourself. When writing to your lawyer with a complaint or question, it is wise to mark the envelope: “Confidential, Attorney/Client Communication.”

Your lawyer may file discovery motions to get witness lists, police reports, witnesses’ statements, reports of experts and all other important facts in your case. Discovery depositions and other statements given under oath may be taken from witnesses. Your lawyer may also talk with the prosecutor to get some idea of how the prosecutor feels about your case. The prosecutor may decide to dismiss all charges or to “plea bargain” — that is agree to a lighter sentence or drop some of several charges against you, in exchange for a plea of guilty or nolo contendere which means no contest. All communication between you and your lawyer is confidential. Without your permission, confidential information cannot be revealed to the prosecutor or anyone. Once the preparation of your case is complete, your lawyer will inform you of all the facts and explain available defenses as well as the chances of success. Your lawyer will also explain possible sentences if you plead guilty or are found guilty at trial.

Motion Practice

After investigating your case, your lawyer may file motions and ask for a court hearing. You should not file your own motions. Because you are not a lawyer, you may put something in a motion that could hurt your case. Additionally, because you have counsel the court will strike any motions that you file as invalid. If you have a matter that you want the court to know about, ask your lawyer to handle it for you.

Pre-Trial Intervention

The Pre-Trial Intervention Program offers an alternative to formal prosecution. The program is very selective and primarily for first offenders of non-violent offenses or people with no significant prior record. It cannot accept applicants without the approval of the victim, arresting officer, prosecutor and judge. If you successfully complete this program, your charges will be dismissed.

Court Appearances

You must appear in court for all your court hearings unless told otherwise by your lawyer.

If you change your address while waiting to come to trial, notify your lawyer immediately so that you can be notified when you must be in court. It is best to arrive before the time scheduled in order to discuss your case with your lawyer. If you cannot appear in court on time, notify your lawyer immediately. If you do not and are late, the judge may issue a warrant for your arrest and your right to a speedy trial may be lost.

Pleas

Under the law you are presumed innocent until proven guilty. You can only plead one of three ways: (1) Not Guilty, (2) Guilty, or (3) Nolo Contendere, which is Latin for no contest. A not guilty plea is entered when you are innocent, when you are not certain of which plea to enter, when there is not enough evidence against you to prove guilt or when you want to demand a public trial. If you plead guilty or nolo contendere, either to the charges against you or to some lesser charge, you must convince the judge you know what you are doing and that no one is forcing you to do so.

If you plead guilty, you must admit you committed the crime. After talking with your lawyer, the decision to plead guilty is strictly up to you. By pleading guilty you give up your right to trial by a jury or judge, which includes your right to face and question witnesses against you, and your right to remain silent.

A nolo contendere plea allows the judge to find you guilty without you admitting your guilt. A plea of nolo contendere, if accepted by the judge, has the same effect as a plea of guilty. It means you do not admit your guilt but do not want a trial because you believe a trial is not in your best interest.

A negotiated plea is an agreement between your lawyer, acting with your permission, and the prosecutor for reduction of charges, dismissal of some charges and/or an appropriate sentence. Such a negotiated plea can only be entered with your approval. The judge is not required to accept any negotiated plea agreement.

Changing A Plea

If, after talking with your lawyer, you decide to change your plea of not guilty to either guilty or nolo contendere, your lawyer will explain to the court that you want to change your plea. Before, accepting your plea, the judge will ask you certain questions to make sure you understand all your rights, and that no one has pressured you into changing your plea. You alone must decide to change your plea and the court wants to make sure of that.

Trial

If you plead not guilty, you will have a trial unless the charges are dismissed or you change your plea before trial. In a jury trial, a judge will preside and six or more citizens from the community will hear the evidence to determine whether (1) a crime has been committed, and (2) you are criminally responsible. A non-jury trial is where the judge decides the case instead of a jury. You and your lawyer must decide whether you want a jury trial, you must decide whether or not you will testify. You are not required to testify, but, you can give up that right and testify if you wish. Your lawyer will give you his advice about this and help you decide.

A jury is used for most trials. Your lawyer will question the prospective jurors and, with your assistance, try to select the best ones to sit on your case. After both sides question the jury and the jurors are agreed upon, the case begins. Next, each side can make an opening statement telling the jury what the case is about. Then, the prosecutor presents his witnesses and evidence. Your lawyer can cross-examine these witnesses. If the State’s witnesses do not appear in court for your trial, the judge may dismiss your case, or, postpone it at the request of the prosecutor. This decision is up to the judge.

After the prosecution witnesses testify, your lawyer has a chance to ask the judge to enter a directed verdict of not guilty (judgment of acquittal) in your case if the prosecutor did not present enough evidence to show that you did anything wrong. If this motion is denied, then your lawyer may present defense witnesses and evidence which may be rebutted by the prosecutor. The decision as to how to best defend your case is complex and should be discussed in detail with your lawyer. After all evidence is presented, each side makes their final argument to the jury. The judge then tells the jury the rules to be applied during their deliberation. The jury then goes into a jury room to talk about the case until they reach a unanimous verdict. If they cannot reach a unanimous verdict, a mistrial occurs and your case is reset for trial at a later date.

Even though the judge sets a trial date, you may or may not be tried on that date. Since there are so many people awaiting trial, the judges set down a large number of cases for the same day as your case. Your case will stay on the docket from one day to the next until your turn comes, unless your lawyer or the prosecutor needs extra time to prepare for your case. You may be required to appear at the courthouse several times and stay there all day without having your case come up. Some cases may take priority over your case, because the defendant is either in jail, or for some other reason.

Pre-Sentence Investigation

If you plead guilty, or nolo contendere, or are found guilty after a trial, the judge may postpone sentencing and order a pre-sentence investigation (PSI). The PSI informs the judge of your background and helps him decide your sentence. A probation officer will question you and may question members of your family, your friends, witnesses in the case and your lawyer in order to make this report to the judge. The PSI includes the cause and circumstances of the crime, your prior criminal record, if any, your reputation in the community, employment, family, and background as well as the plans for the future for possible probation. Be truthful with the probation officer since all statements are verified and untruthful statements are reported to the judge. However, you should not discuss your knowledge of the crime of which you are convicted without permission from your lawyer. Also, the PSI points out things like your lifestyle, behavior pattern and general attitude. PSI’s often take several weeks. Your lawyer will get a copy of it and review it with you.

Sentencing

If you are to be sentenced, you will have a chance to talk to the judge at the sentencing hearing. You should discuss with your lawyer whether to talk to the judge and, if so, what to say. The judge will also give your lawyer and any other interested persons a chance to speak on your behalf. Let your lawyers know in advance the names and addresses of people you want to speak at your sentencing. Once the judge has sentenced you, the sentence will not be reduced or changed unless important information (which changes the judge’s mind) unknown at sentencing, is given to the judge within 60 days. Do not compare the sentence in your case with those in other cases because each case is different.

Alternative Sentencing

If you feel your arrest was caused by an alcohol, drug or mental problem, please tell your lawyer. You may be eligible for programs to treat these conditions. These programs may be an alternative to jail or prison.

Probation

Probation is a privilege–not a right. If you are a first-time offender, this does not mean you will automatically receive probation. If placed on probation, the usual conditions include: (1) reporting regularly to your probation officer, (2) notifying and receiving permission from your probation officer before changing your address, changing your job or leaving the county, and (3) leading a law-abiding life and not committing any other crimes. If you violate any of these probation conditions, or any special conditions required by the judge, the judge may sentence you to prison. If the violation of probation is a crime committed by you while on probation, the judge can revoke your probation without waiting until you are convicted of the new charge. A probation violation hearing will be held by a judge without a jury.

Appeal

If you are convicted and want to appeal your case, you must do so within 30 days after sentencing. You usually have no right to an appeal from a plea of guilty or nolo contendere. An appeal will only help you if the judge did not follow the law, or if you were prevented from properly exercising all your rights. You or your lawyer must tell the Appellate Court exactly how the judge didn’t follow the law or what rights you were denied before it will reverse a conviction. If your case is appealed, the judge may allow your release on bail until a final decision is reached if he believes you will reappear in court, but you do not have an automatic right to bail when appealing. If you wish to appeal your case, you should discuss this matter with your lawyer as soon as possible.