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Posts made in May, 2011

By on May 26, 2011 in Civil, Communication, Court, Criminal, Negotiation, Noah Weil, Procedure, Sentencing/Penalties, Uncategorized | 0 comments

“Trial by jury is essential to secure the liberty of the people as one of the pre-existent rights of nature.” -James Madison A trial is a lot of things in our society: Dispute resolution, a search for truth, an opportunity for vindication, an emblematic display of our legal system. Yet in every state in the country, a trial is relatively rare. Lawsuits are settled, and criminal charges are dismissed or pleaded to before the trial phase. Why? Two reasons. The lesser is that a trial is an awful lot of work for everyone involved. No prosecutor’s office in the world, much less the court itself, has the resources to take every single case to trial. But fundamentally it comes down to the unknown. A trial’s outcome is impossible to predict. You can make an educated guess but the final decision is in the hands of a jury, ordinary men and women. There are no guarantees. Settlements, or plea bargains, are trading an unknown result for a sure thing. Considering the stakes, like months in jail or millions of dollars, playing “double or nothing” is a lot of gamble. And as I mentioned, a trial involves a lot of resources. They can be stressful too. Part of the appeal of the settlement process is its immediacy and its finality. Enduring days or weeks of testimony can be miserable for the side waiting for the shoe to drop. A trial is a lot of investment for an unknown outcome. But trial is almost always an option, and sometimes it’s correct. As usual there are no hard and fast rules. Everything is fact-specific. But in my experience there are three common, good reasons to go to trial. Innocence Contrary to what the masses think, defense attorneys often work with people who really have committed criminal acts. Those acts do not in any way mitigate or alter a citizen’s rights, including their presumption of innocence, the requirement of making a side prove their case, and the requirement of police and witnesses to be truthful. Being charged with a crime, even committing a crime, does not waive basic human dignity. But past all that, sometimes the person really is innocent! It certainly happens. Common...

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By on May 20, 2011 in Constitution, Criminal, Noah Weil, Procedure, Sentencing/Penalties, Uncategorized | 0 comments

Author’s note: Sorry for the lack of updates recently. I just got out of an intense trial, the experience of which I’ll share soon. In the meantime, please see an old essay I wrote in law school, about my first trip to one of Washington’s State Prisons. -Noah Monroe State Prison is located in Monroe, Washington. Monroe is about 40 miles Northeast of Seattle, in an extremely scenic area of the state. The actual facility is on 365 acres, and is broken up into Minimum Security, Medium Security, and Mental Health areas. There are also visiting areas, administrative areas, and a solitary confinement/high security zone. The purpose of the trip generally was to learn about the prison experience, and more specifically to meet with the Black Persons Caucus (“BPC”). The BPC is a self-run group consisting of offenders wanting to make the community prison experience more positive. Although originally started by and for black persons 30 years ago, these days the BPC is open to anyone. The purpose of the trip was to being a program of regular correspondence. Community organizers, people very used to the system, set up the trip. Even then though, the process was involved. A detailed application was needed, including the race and social security number of the potential visitor. The applications needed to be submitted a month before the visitation date, and even then there was no guarantees. For example, on our first attempt the prison lost the entire packet of applications, forcing us to reschedule for four weeks later. Whether this was corruption or incompetence we couldn’t decide, but regardless we didn’t have trouble after applying again. Besides outright loss of application materials, there were other ways we could be turned away. The rules on what you could bring into the facility were extremely strict. People could be prevented entrance for “immodest dress,” especially the women, a classification wholly left to the guards at the front gate. The impression I received (secondhand) was that they looked for reasons to turn people away. As such, we were all careful with our dress and personal effects. Perhaps if you were a regular they’d ease the restrictions slightly, but for us first-timers, prudence was best. Six of...

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By on May 5, 2011 in Communication, Court, Noah Weil, Procedure, Uncategorized | 0 comments

Anyone who pays attention to legal proceedings, be it attorney, client, or merely an interested citizen, will seem some common legal terms thrown around. Since I’ve found a lot of people don’t understand or misapply these terms, here’s a brief overview of ten of the more common ones. Plus a bonus! 1. Discovery: Discovery is the evidence gathering phase of a case, as well as the actual fruits of the investigation. I usually use it to mean the collective information obtained from the prosecutor or opposing party. For example, on a new criminal charge, the initial discovery I receive from the prosecutor includes the police reports, photos, interview statements, 911 tapes, and other items specifically revolving around the charge. If there’s more information I want from the other side, and there often is, I file a document called a “supplementary discovery request.” 2. Burden: The burden, or burden of proof, is what a party needs to overcome to get their desired result. Because our system respects the status quo, the side that wants a change (transfer of money, put a person in jail, prevent a person from taking an action) almost always has the burden. The degree of burden depends on the issue. I described the burden of making an arrest here. The burden of prevailing in a civil matter is a “preponderance of the evidence,” or “more likely than not,” or 50.01%. The burden of finding someone guilty is “beyond a reasonable doubt.” This doesn’t have a strict numerical analog, but is definitely higher than 50.01%. Identifying who has the burden is extremely important. It’s more professional, and far more effective, to instead of saying “that side is wrong,” but instead “that side has not met its burden.” Our legal system heavily revolves around overcoming or undermining someone’s burden. 3. Subpoena and Subpoena Duces Tecum: A regular subpoena is issued by a court for a person to appear at trial or hearing. By contrast, a subpoena duces tecum is a formal request for tangible information about the case from third parties, like police and insurance companies. If I wanted a particular witness I would get a subpoena. If I wanted a particular witness’s phone records, I would get...

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By on May 2, 2011 in Constitution, Criminal, Fourth Amendment, Noah Weil, Police, Procedure | 1 comment

The power to arrest is one of the most iconic police powers. Watching a cop slap their cuffs on a perp and lead them away is a prolific scene in any Law and Order-type media. The ability to cart the bad guys away is part and parcel with the idea of law enforcement. But as you would expect, the media does not tell the whole story. Police do arrest of course, but oftentimes the first interaction with a citizen is something different. When we talk about arrest or its derivatives, what we’re really discussing is the police power to detain. When and how does an officer have the power to (lawfully) restrict your movement? As you may expect, the power to detain rises with the degree of apparent criminal activity. Or to put it another way, the more severe the criminal conduct, the more severe a detention an officer is permitted to do. Now when we talk about lawfulness or permissibility or justification, we’re not talking about criminal conduct per se. It’s true no person, be it judge, police officer, or even president is above the law. But for police, actions that would be criminal for a regular citizen are not criminal for a police officer when acting in their official capacity. As an easy example, it’s not criminal for a police officer to cart someone off to a jail cell. For you or me? Not so much. No, when a defense attorney talks about the lawfulness of a search or seizure, they are looking at the evidence obtained from the search or seizure. The basic rule is called the Exclusionary Rule which simply states evidence obtained unlawfully must be excluded from trial. This is an important rule for anyone who wants to beat their criminal charge. If the initial stop was unlawful, all evidence found at that stop, as well as all evidence that flowed from that faulty stop, must be excluded, or suppressed. There are tomes of minutia and interpretation of this rule and its application, but there’s the basics. Constitutional Restraints Now what makes a seizure unlawful? The police are government actors, so the absolute limit of their power is the Constitution. For the Federal Constitution, the provision you are looking for is the...

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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.