Tuesday, March 23, 2010

Your lawyers role does not end upon a finding of guilty

Often times a person accused of a crime will ask, "what can you do for me?" This is then followed up with, "well, I can plea and take the standard deal, right?" True, this may happen. However, what if you did not do the alleged offense? What if their are mitigating circumstances? What if the probationary conditions requested by corrections are such that you will not succeed and end up doing your sentence behind bars?

This last situation almost happened to a client of mine. Had he not had a lawyer, he would have failed on probation and had to spend his time behind bars. Thankfully, we were able to educate the judge as to how unfair the proposed conditions of probation were. The judge modified the sentence that will eventually allow my client to have the case dismissed.

Here is the scenario: My client met a young lady when she came into his place of employment to purchase some merchandise. The young lady stated she was 17. My client was 19. The young lady looked like she was 17 according to some witnesses and my client. The young lady began texting my client. This continued for several days. One evening, the young lady slept over at a friends house. She texted my client asking him to meet her. My client invited her to a party at his friends house. There was alcohol at this party. The young lady told my client she could not drive there and needed a ride. My client picked her up, met her at the driveway of her friends house and brought her to the party. This is where the facts become in dispute.

A few days after this party, the young lady went to her counselor at high school and told the counselor she believed she may be pregnant from having sexual intercourse with her 19 year old boyfriend. Turns out, the young lady was not 17, but 15. A felony as a 15 year old can't give consent. There is a defense of mistake of age at 15, and that was offered by us as a defense in this case. The young lady stated she did not want my client prosecuted and that the sex was consensual. Remember, a 15 year old can't give consent. She also claims that she told my client how old she was. There were also some other factors about whether my client should have known how old she was. Those were up for dispute.

My client admitted to officers that he knew the young lady and that they kissed and and feeling each other. This is not a felony. This is a gross misdmeanor. My client denied any sexual intercourse. In fact, that was the only night these two had contact according to my client. That he has not spoken to her since the event.

The young lady's mother acknowledged that the young lady is a handful. That she tries to look older than she is. That in fact, she no longer lives at home as she will not listen to what her parents instruct her to do. The mother also claimed that my client has known the young lady since she was 14 years old and the two have had a romantic relationship together. The mother stated that my client continued to text her explicit messages and that the relationship continues despite a court order to stay away from each other.

In the end our investigation found these accusations to be false. There was no intercourse between the two. My client's telephone records established that he never sent her a text after the night in question and there was no ongoing relationship. Furthermore, the investigation revealed that my client and the young lady never met until she came into that store a few days before this event. The young lady was 15, only a few days away from 16.

The case resolved. My client was fearful of being convicted of a criminal sexual conduct with a minor. An offense that would be a felony, mandatory registration and prison time. The eventual offer was for sexual contact, not conduct (contact over clothing of sexual parts, not penetration), a gross misdemeanor and the court would consider a stay of adjudication given the circumstances. A stay of adjudication means that at the end of completing probationary conditions, the case will be dismissed.

My client then had to follow the statute and complete a psychosexual evaluation. During this interview, my client was asked about the penetration. My client stated that there was none. The department of corrections and the evaluator took that as a denial of acceptance of responsibility. Why is this important? This is important because the department of corrections recommended that my client successfully complete sex offender treatment and after care as directed by the Corrections department. Also that my client comply with polygraph testing. If the client does not successfully complete these requirements, the client fails probation, will have a conviction and must go to jail, or prison as the case may be. Corrections further recommended that the court execute my client's sentence because he is not amenable to probation and will successfully complete sexual treatment because he won't admit to having sexual intercourse with the young lady.

This is absurd. After significant debate about the issue the department of corrections acknowledged that they consider what the initial complaint is to be true, not what the evidence shows. So, even though the evidence shows that sexual intercourse never happened, my client would be required to admit to having sexual intercourse in order to be successful with his treatment. This is because, whether treatment is successful, is completely subjective and arbitrary to the person performing the treatment. The kicker is this. Had my client admitted to having sexual intercourse with the young lady, that would be a lie and he would fail the polygraph and thus fail probation and end up in jail or prison. As was finally acknowledged, there is no way to successfully complete this absurd request.

The sex offender laws are a knee jerk reaction to very bad events. The downfall is that rather than looking at the specifics of the case and the specifics of the individual, we sentence according to a mob fear. A guilt by association. We lump in the minor offenses of a senior dating a freshman or sophomore with the child molesters. This is wrong. This is against every meaning of our Constitution and should make everyone appalled. A person can outright lie in their initial report to police because they are angry with their parents and want to spite them, the true facts can come to light, but the overpowering government because of our apathy as voters to educate ourselves, can decide that the truth is not the truth. Instead, what the government states is the truth must be accepted as the truth, or sit in prison. Sound familiar? Dictatorships are run this way.

Thankfully in this case, we had a judge that saw through the inconsistencies and nonsense of the alleged facts coming, not from the alleged victim, but the mother. The judge also discerned that Department of Corrections demands were a joke. That the demands were subjective, arbitrary and had no foundation. In the end, my client was placed on a proper probation with educational courses and also received that stay of adjudication. Had my client not had a lawyer, the department would convinced the court to do the opposite. They almost succeeded.

Your lawyer does much more than get a deal, an offer, or doing a trial. The representative role continues to insure that the government does not succeed in taking advantage of you during sentencing should you be convicted.

If you should find yourself in need of legal advice, please call for a free consultation.

Patrick W. Flanagan

email: patflanagan@patflanagandefense.com


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