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Criminal Law Blog

The Justice System

May 23, 2016

Look at this cartoon. It is funny but it also illustrates a common issue. People don’t know the process of the criminal system. Unless you or a loved one is charged there may be no reason to know it. But you should, just like the political process, this is where pur rights are and it is important to know when we vote for local officials like judges and prosecutors.
From my perspective, it is important because there are things I can do, actions I can take during the charging phase of a case that can help a client tremendously, especially if they are charged with a DV offense.
This article describes procedures unique to Pima County, AZ. Other AZ counties may or may not operate this way. Counties in other states are unlikely to operate in exactly the same way as Pima County.
Now, here are the specifics: If you are charged with a felony offense, the person who starts the charging process is a cop. He or she, no matter how inexperienced, gets to bring felony charges against you and potentially take you to jail to await the resolution of the case. You will see a judge within 24 hours of being taken to jail. It is usually 12 hours not 24. Judges see arrested people in Pima County at 8: 00 AM and 8:00 PM over video at the Pima County Jail facility on Silverlake Rd. You can go the jail and see your loved one and speak on his or her behalf to get him or her out of jail.
Judges can set bond or release people. Bond and release will be the topic of another blog coming soon.
Let’s say the judge sets a huge bond for you and there is no way you or your family can come up with the money. You will sit in jail for at least 10 days. Why 10 days? That is the time allotted to the state to charge you or dismiss the case and release you. If the case is dismissed and you are released, please know the state has seven (7) years to re file.
If the state decides to move forward and charge you, the state, via the county attorney (they are called District Attorneys on TV), the prosecutor, has to decide to have a preliminary hearing or take the case to the grand jury. It is the state’s choice. The defense has no say in which way they go.
What are these things? Preliminary hearings and grand juries? They are screening systems to ensure there is enough to go forward with a felony charge. It is possible that a case can die and be dismissed at these pretrial stages. An experienced attorney knows how to work these screening systems to your advantage if at all possible. The disadvantage of a court appointed attorney is that these screening systems often occur well before the lawyer even knows he or she has you as a client.
A preliminary hearing consists of a judge-not the judge who would hear your case if you went to trial, but a different judge. In Pima County, the judges who hear preliminary hearings are at the justice court at 240 N. Stone.  At the preliminary hearing, an accused person, a defendant, will have a lawyer, and the state will put on “some evidence.” This does not mean a full blown trial. This usually means a case detective will read from his report that a crime was committed and that the accused is the person who committed the crime and here is why he or she is coming to that conclusion.
For example, in a DV case, a detective can testify in a preliminary hearing that Ms. A told him that she was beaten by her husband, Mr. B, and her arm appeared to be broken. The detective can further state that he/she went to the hospital with Ms. A and spoke to the doctors and the doctors indicated the arm was indeed fractured. Mr. B’s lawyer can question the detective. For example, the lawyer could ask the detective, “the doctor told you that while Ms. A was being treated, she said she fell down the stairs at home…” Then, Ms. A will be called to testify and she too can be crossed examined.
The judge or magistrate hearing the witnesses testify can determine if there is enough to move forward with the case. The standard is probable cause. If there is not, then some or all of the charges can be dismissed. If there is enough then the felony court process will begin.
The Pima County Attorney’s office usually takes DV cases to a preliminary hearing. They reason that the alleged victim’s testimony will be preserved under oath should the victim decide to recant or change his or her story by the time trial rolls around months or years later.
The preliminary hearing is ripe ground for making good deals with prosecutors. Maybe they are overwhelmed and want to get rid of a case where the facts aren’t so good for them. You must always try to get a favorable resolution.
If the state chooses to have a grand jury hearing rather than a preliminary hearing then the state likely believes the alleged victim isn’t going to change his/her story at trial. This means, the state believes it has a rock solid case and they won’t bother to preserve under oath testimony.
In a grand jury, a group of people, jurors, from around the county are chosen, just like people get chosen for jury duty. They sit at a table and there is court reporter there taking down all that is said. The accused is not invited, nor is his or her attorney. However, an accused can ask the grand jury if they want to hear testimony from him or her. The grand jury can say “yes” or “no.”  But the defense attorney cannot be in the room with the accused during the grand jury proceeding. This can lead to a lot of in and out while the accused asks his/her attorney questions about what to say and do.
The case detective and prosecutor are in the room with the jurors. The detective testifies and the attorney/prosecutor asks questions. The court reporter takes it all down. The presentation is supposed to be fair but sometimes it isn’t. If there was something helpful to the accused that was left out then the defense attorney can file a motion asking for the case to be dismissed and presented to a new grand jury. A defense attorney can get charges dismissed and reduced at this part of the case.
If you are charged with a felony offense, seek the advice of a caring competent criminal defense attorney who help you try to understand the process and use the process to your advantage.

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