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Plea Bargain vs. Trial

Posted By Emily Ghant (Johnson), Monday, March 23, 2015
Updated: Monday, March 23, 2015

Plea Bargain or Trial?


Every week I get calls from people who want to withdraw their guilty plea.  Over and over I hear “I didn’t want to plead guilty, but my lawyer made me.”  Unfortunately, these people think that they have the right to withdraw their guilty plea, but they are wrong.  You only have the right to withdraw your guilty plea before the Judge sentences you.  Once your sentence is pronounced, it is within the Judge’s discretion whether to allow you to withdraw your guilty plea.  And, once the “term of court” has passed, the Judge does not have the authority to allow you to withdraw your guilty plea and the plea must be attacked through a petition for habeas corpus (which is a difficult and expensive process).  What this means is that you should never enter a guilty plea with the mindset that you will just withdraw your guilty plea at a later date.

 

You also need to understand that your lawyer cannot force you enter a guilty plea.  As best stated by one of the judges I practiced before when I was a prosecutor, “Lawyers don’t tell you whether to plead guilty or go to trial.  They tell you about your options and the consequences of the decisions you make.  Ultimately, you’re the one who decides whether to enter a guilty plea or go to trial.”  These are true words of wisdom that every criminal defendant must know and understand; your lawyer can give you his opinion about whether you should take a plea offer, but you, and only you, decide whether to take the plea offer or take your case to trial.


Some clients come into my office and say, “I just want to plead guilty, get me a good deal.”  Others tell me that they will “never enter a guilty plea.”  Regardless of whether a client wants to enter a guilty plea or go to trial, I have a constitutional duty to get the client the best possible plea offer and then let the client decide whether he wants to take that plea offer or go to trial.

There are many factors to consider when deciding whether to enter a guilty plea or go to trial.  Some of the factors include: the terms of the plea offer, the leniency or harshness of the plea offer, whether the plea is negotiated (both sides agree on a certain sentence), whether it is a “blind” plea (both the prosecutor and your lawyer make recommendations to the Judge, who ultimately decides the sentence), the Judge’s sentencing propensity, the county where your case is pending, whether there is any mandatory minimum punishment, and most importantly the strength of the evidence that that State has against you.  It is critical to discuss these factors with your attorney so you can make an informed decision about your case.  That is why I sit down with all my clients and say, “Here is the offer.  These are the things you need to consider.  This is the evidence the State has against you.  These are your options.  These are the consequences of the decisions you make.” 


Whatever your decision, think long and hard before deciding to enter a guilty plea.  In all likelihood your decision to enter a guilty plea will be final and you will have to live that decision for the rest of your life.


Noah H. Pines is a partner at Ross & Pines, LLC and has been practicing criminal law, both as a former prosecutor and criminal defense attorney, for the past 20 years.

Tags:  court  crime  criminal defense  criminal law  law  plea  sentencing  trial 

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Stalking

Posted By Emily Ghant (Johnson), Wednesday, January 14, 2015

One of our Criminal Defense panel members, Jason Swindle, has been kind enough to help educate the community regarding potential charges associated with stalking.  Please see his take below. If you find yourself a victim of stalking or in need of defense for a stalking charge, call Atlanta Bar Association's Lawyer Referral and Information Service at 404-521-0777, for a qualified attorney who can offer you legal advice.

 

 

STALKING IS A SERIOUS CRIME

 

In Georgia, criminal laws are often misunderstood or just ignored.  The laws addressing the act of stalking should not be in that category.  Many good men and women go to jail because of stalking and the most serious version of this type of offense, aggravated stalking.   

 

Because of space limitations, this is a nutshell version of the topic of stalking in Georgia.  However, there are some plain terms used in Georgia stalking law that are important to understand when thinking about a serious charge like this.

 

1.  CONTACT: You must contact another person to be charged with the offense of stalking.  There are many definitions, interpretations, and arguments about what is and is not “contact.”  Contact can be direct (Reaching someone, not only in person, but also by phone, broadcast, mail, or computer) or indirect such as through a third party.

 

2.  HARRASS OR INTIMIDATE:  This consists of causing the alleged victim emotional distress by putting them in fear of their (or their family’s) safety, by establishing a pattern of harassing and intimidating behavior for no legitimate reason.

(Always be careful when thinking about the word “legitimate.”  An accused’s definition of a legitimate reason may be different than the police officer’s view).

 

The most common way that someone can be accused of stalking in Georgia is when they allegedly put someone under surveillance or contact them without their permission in an effort to harass or intimidate them.

 

STALKING PENALTIES

If a person is charged with stalking, it will be treated as a misdemeanor for the first offense.  The maximum penalty is up to a $1000 fine and 12 months in jail.

 

If a person is accused of a second or subsequent stalking offense, the case will be charged as a felony and the person will face up to 10 years in prison. 

 

AGGRAVATED STALKING

This offense is the most serious and unfortunately the most common form of stalking.

A person may be found guilty of aggravated stalking if they put someone under surveillance or contact them in violation of a protective order (temporary or permanent), restraining order (temporary or permanent), probation, parole terms, or preliminary or permanent injunction.

 

In other words, if a person has been ordered by the court to stay away from another person and not contact them, but the defendant continues to harass them, there is a good chance that an aggravated stalking warrant will be signed by a judge.  (By the way, this form of behavior is also terribly disrespectful to the judge who signed the original order.  Under these circumstances, bond can be very difficult.)

 

AGGRAVATED STALKING PENALTIES

Aggravated stalking is a serious felony. If a person is convicted, he or she will be facing 1-20 years in prison.

The reason that this offense is so common is probably tied to family problems, divorce, family violence, and other strong unhealthy emotions that people have.  Unfortunately, I have seen many good people over the years engage in an emotional downward spiral that eventually leads to aggravated stalking charges. 

 

Fortunately, judges in Georgia are beginning to see the value of psychological and/or psychiatric evaluations coupled with treatment before disposition in these type of cases.  This has two benefits:

1.  The victim can be protected if the defendant’s mental health improves (no one is going to just be locked away forever); and

2.  The defendant gains access to the mental health treatment that may be at the very core of his or her unacceptable behavior. 

 

I will leave you with this.  Remember that you do not have to threaten the alleged victim to be convicted of stalking or aggravated stalking.  In this era of social media, smartphones, and instant communication, it is very easy to be accused of contacting a person for the purposes of stalking by just pushing a button.   

Tags:  aggravated stalking  crime  criminal defense  criminal law  felony  stalking 

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5 Things to Remember during a Police Encounter

Posted By Emily Ghant (Johnson), Monday, October 20, 2014

See what local Criminal Defense Attorney, Noah H. Pines, thinks we all should know regarding interactions with law enforcement.

 

Every encounter with the police involves hundreds of variables. This guide cannot cover all of those variables but instead is designed to teach you how to stay safe and protect yourself during a police encounter and to educate you about some of your Constitutional Rights.

 

1. Stay Calm/Stay Safe

The key to any citizen/police encounter is to stay calm and stay safe. Getting stopped or approached by a police officer can be a nerve-racking experience. In fact, you often hear police officers ask people "why they are so nervous?" If you are stopped by the police officer, do not panic and do not do anything stupid (like try to flee, start hiding stuff in your car or throwing it out the window, or fight with the police). Instead, if you are the driver of a car, pull over immediately. Once you are pulled over, place your hands on the top of the steering wheel and leave them there until the officer has approached the side of your car and can see them. If a police officer sees you moving in your car or reaching for things, the officer will automatically think that you are either hiding contraband or reaching for a gun. This happened recently in South Carolina when a police officer instructed a man who had just stepped out of his car to "show his license." When the man reached back into his car to get his license, the officer shot him several times; the officer's excuse was that he thought the man was reaching for a gun. If you need to get something or reach for something, ask the officer for permission before you act. Be polite and respectful to the officer even if you do not think you did anything wrong. It is true that police officers often stop people for no reason or without legal justification. Even in this circumstance, it is not going to be helpful to argue with the officer. Arguing with a police officer is like arguing with a referee or umpire; you are not going to win the argument, the officer is not going to change his decision and unlike a referee or umpire, who can throw you out of a game, the officer can simply arrest you. Your lawyer will ultimately be the person who argues for you in court. If the officer made a mistake or treated you unfairly, let your lawyer deal with it as your lawyer can actually "win that argument" in court.


2. Are you being detained or are you free to leave?

There are three different levels of citizen/police encounters. The two that are important for this topic are the Tier 1 & Tier 2 encounters. A Tier 1 encounter is called a voluntary encounter in which a police officer can approach you and ask you questions without any belief that you committed a criminal act; you can walk away from a Tier 1 encounter at any time. The problem is that a police officer will never tell you that he is conducting a voluntary encounter and that you have the right to walk away unless you ask. So, if you are approached by a police officer, even before start answering questions (which we discuss in the "You have the Right to remain silent" section of this guide), you should ask the officer whether you are being detained or whether you are free to leave. If the officer says you are free to leave, then you know you can go. A Tier 2 encounter is often referred to as an investigatory stop and typically occurs when you are driving and pulled over. In a Tier 2 encounter, the officer may stop or detain you based on a reasonable articulable suspicion, which means that there is some objective evidence that you may have committed a crime. However, just because the officer has the right to stop or detain you does not mean that you are required to answer questions and incriminate yourself. Again, since an officer is not going to volunteer whether he is conducting a Tier 1 or a Tier 2 encounter, ask the officer if you are free to leave. As we know from the Tier 1 situation, if he says yes, then you can leave. If he says no, then if and when the case goes to court he will have to prove that he had enough evidence to detain you.


3. Do I have the Right to remain silent?

Yes, except for identifying yourself, you have the right to remain silent. You have that Right even if the officer does not inform you of that Right (which typically is not required unless your are under arrest and being interrogated). What that means is that you do not have to answer the police officer's questions, which are designed to get you to incriminate yourself. For example, if you are stopped and the officer asks "have you been drinking?" instead of answering "no" or "yes, but I only had two beers" you can simply answer, "officer I would rather not answer that question or any other question you intend to ask me." Many people are afraid to give that answer because they believe it will make the officer mad; however, all you are doing is exercising your Constitutional Rights and protecting yourself from making an incriminating statement, which is all that the officer is trying to get you to do. Let the officer be mad at you for exercising your Constitutional Rights; that is better than you getting mad at yourself after you made an incriminatory statement and end up arrested. Many people ask, "but then won't the officer think I am guilty?" Again, who cares what the officer thinks. It is better for the officer to think you are guilty for not making a statement, than to know you are guilty after you have either lied to him or made an incriminatory statement. Finally, it is a misconception that the officer's failure to inform you that you have the Right to remain silent will result in your case being dismissed. That rarely, if ever, happens.


4. Should I sign a statement?

If you failed to listen to my advice about exercising your Right to remain silent and are asked to sign a statement, please remember these simple rules. 1. If you are being accused of a crime, do not give or sign a statement without first consulting an experienced criminal defense lawyer. 2. Even if you cannot afford to hire a lawyer, ask to have a lawyer present to help you understand your Constitutional Rights. 3. Do not sign a statement you did not write. 4. Do not sign a statement you did not read. 5. Do not sign a statement you do not understand.


5. Should I consent to a search?

The 4th Amendment to the Constitution of the United States of American protects you from unlawful and unreasonable searches and seizures. Unless a police officer has a warrant, or there is a legal exception to the warrant requirement, he cannot conduct a search; this includes but is not limited to a search of your person, car, house, etc. One of those legal exceptions is if the officer has your consent to search. In my experience, over the past 20 years police officers have been trained to ask everyone that they come into contact with for consent to search, even if there is no evidence that a crime has been committed. If you are in your car, the officer may ask "you don't have any hand grenades, explosives, land mines or bombs in the car, do you?" When you answer "no" the officer will usually follow-up with "do you mind if I look?' You should mind and you should be offended. Do you really think the officer thinks you have a grenade in your car? No, he asks that question to knock you off your guard and to get you consent to a search. In my opinion, even asking for consent to search degrades your Constitutional Rights. Most importantly, the officer does not have to inform you that you have the right to refuse consent to search and the police officer can even lie to you to trick you into consenting. Recently there was a case in which a police officer went to the house of a suspected drug dealer and informed the person who answered the door that he was looking for a suspected rapist who might be hiding in the house; of course there was no rapist and the officer just wanted to search the house for drugs. You have the Constitutional Right to say "no" or "officer I do not consent to you conducting a search." These answers will typically cause the officer to ask you "what you have to hide?" If you feel it is necessary to reply, simply ask the officer if you have the Constitutional Right to refuse consent. When he says "yes" then just reply that you are exercising your Constitutional Rights.

 

 

Tags:  Atlanta Bar Association  criminal defense  felonies  interrogation  law enforcement  LRIS  police  traffic citation 

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Who is LRIS by Attorney Robert J. Fleming

Posted By Emily Ghant (Johnson), Friday, August 8, 2014
Updated: Wednesday, February 11, 2015
Hi:

I'm Robert J. Fleming and I have had the pleasure of serving as the Immediate Past Chairman of the Atlanta Bar Association Lawyer Referral & Information Service ("LRIS") Board of Trustees. LRIS has a long and rich history of providing the public with access to qualified lawyers in almost all areas of law. Some of the major areas of law in which LRIS regularly refers clients in need of a lawyer are: civil rights, debtors' rights, corporate formations, contract law, employment discrimination, education law, labor law, criminal defense, medical malpractice, personal injury, workers compensation, real estate, and other areas of law. 

We are especially proud of the fact that we can provide access to qualified lawyers in almost all areas of law to hard-working people in and around the Atlanta area. In many cases, these people may not have the personal network to find these qualified lawyers without our help. If you or someone you know needs and experienced and qualified lawyer, please don't hesitate to contact Atlanta Bar Association Lawyer Referral & Information Service at (404)521-0777. We are proud of our service to the community and I urge you to take full advantage of this sorely needed resource. 

Tags:  areas of law  Atlanta  Atlanta Bar Association  civil rights  contract law  criminal defense  employment discrimination  labor law  lawyer referral  legal resources  medical malpractice  personal injury  qualified lawyers  real estate  workers compensation 

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