Criminal

An Accused’s Point of View of the Criminal Justice System

Introduction

I wrote this essay to help others who are going through the processes of the judicial system. I had never been involved with the judicial system before, not even hiring an attorney. I was expecting that people involved in this industry were honest law-abiding citizens. I mean this is their system, their livelihoods, their career choices. Unfortunately, every occupation has its low life actors. The judicial system is no different. But there are also a lot of good people doing their job every day in this same system. I hope the information I share in this book will help you understand what you are going through and what to expect.

One would think that logic would have some bearing or importance in the system of administering justice. But rarely does anything that is going to happen seem logical. Once you have been accused of a crime being committed, you are now involved in a system that you have no way of controlling.

Take an example of being pulled over in your car. If you were speeding, then the cop was justified in pulling you over and writing a citation. If there were any other issues with the car you were driving, then it is fair for the cop to include those items as additional hits for citations. But if you were not speeding and there was nothing wrong with the car and the cop still writes you a citation, there is not much you can do about it. You were just inducted into the “system”. Your choices are limited. You can pay the ticket. You can hire an employee of the system, meaning an attorney. You can challenge the ticket in court or you can ignore it. Most of us can’t afford to ignore a ticket because it will eventually turn into a warrant. Then when any cop identifies you, you will go to jail with a lot of fines to get out. All of the options require you to feed money into the “system”. The more money you feed the system, the better your chances are you will get a better outcome. Notice I said chances. Because nothing is guaranteed. Look at some historical cases of rich people accused of some very serious crimes. O.J. Simpson paid millions to stay out of jail only to end up in jail for stealing his stuff back that he sold to stay out of jail. Cullen Davis, who said he didn’t kill his step daughter but paid a huge price to defend himself. Ethan Couch who couldn’t control himself to handle 10 years of probation for killing 4 people.

Almost everyone denies doing something bad, it is human nature. If no one sees who broke the coffee pot at work, then chances are no one will own up to it. As society grows with less and less family units, more and more people are brought up to keep their distance from personal failures. It is the role of fathers to teach their children to accept responsibility for their actions. These lessons are usually learned during the pre-teen years of becoming an adult. Unfortunately, society is growing towards the attitude that a family unit is not necessary for bringing children up in the world. This will only lead to more people doing things that an ever increasing governmental intrusion into daily lives consider inappropriate and worth holding people accountable through the courts. In days gone by, most of these matters were taken care of (adjudicated) by the families involved, ie ass kicking.

Once a crime has been accused of being committed, there are many victims. Not just the person that the alleged crime was against. The families of everyone involved are now victims. If not by the criminal, then by the order of the court. What I mean by that is the court does not care about the family members of the criminal. That would put too much of a burden on the people that work in the system. For example, a guy robs a gas station and has a child before he gets caught. Now that justice is being served, he is sent away to prison. The child is now fatherless while the criminal is serving his time. Is this fair to the child? In the eyes of the justice system, the criminal has also offended his future family, because after he gets caught, he will go to prison for the crime. If he were to avoid prison because he now has a child, then every offender would be making kids to avoid punishment. So the people working in the justice system do not feel the pain you will feel when you are sentenced.

In my experience, I have gotten away with a lot of acts that I could have been punished for. Speeding is one, I like to drive fast. Not too fast but 1 mile above the speed limit is technically breaking the law. Stopping my car with the bumper protruding past the stop line on the road. Driving after having consumed some alcohol. You get the point. Everyone has done something society has deemed inappropriate. Jesus was the only person to walk this earth that was Lilly white, without sin. So you are caught up in the system. If you are indeed innocent of the crime you are accused of, then fight it. Just realize it won’t be easy or cheap. If you have done anything even remotely related to what you are charged with, then chances are that you will have to endure what justice dishes out.

Think about what the charges are or could be for what you are indicted for. I will discuss this in more detail later on.

Part 1 – The charge

The truth does not matter. It seems that most people would think that any issue involving so many people in the administration of justice, which the truth would be of importance. It is just the opposite. As an attorney pointed out in the initial consultation, what happened is of no consequence, now it is all about the charge and who the DA can call as witnesses which matter now. So, if there is any way to interact with the DA’s office while they are building a case against you, it would be in your best interest to get them to charge you with codes relevant to what really happened. Also, try to get all possible charges listed. The DA can run you though the entire process a second or more times for each charge if they are not all listed together in the beginning. That is not double jeopardy. It is a fail-safe technique the DA can use should you win this case in court.

Most cities and counties have the offense codes available online. It is not easy to read, but since it can really affect your future, it would be prudent to start reading. You may see an offense code that more accurately describes your offense and may entitle you a different and possibly better future once this is all behind you. It seems that everyone that gets caught up in the justice system is so stressed out and concerned with the present that they rarely look to the future.

Part 2 – Hiring an attorney

WILLIAM SHAKESPEARE, Henry VI, part II, act IV, scene ii, lines 83–84. Dick the butcher is speaking. “The first thing we do, let’s kill all the lawyers.”

Steven Hunter, PC, http://www.srhunterlaw.com/Police-and-District-Attorneys-Lying-in-Court, 3rd paragraph: “So, why do many police officers and prosecution investigators lie to judges and juries? It’s because they know they can lie with impunity.”

I say the same thing can be said for district attorneys and their assistants and any other person that works in the justice system. They are all people in a career path. Some of them are affected by the cases they work. Notice I did not say “all”, not all people have no or low ethical values.

While sitting in court, I actually heard a judge say, “I shouldn’t say this, but we know it is all about the numbers. So let’s get this one done.” I did not review the court transcript, but I would guess that that comment was not recorded because the same court recorder is used every day in that court. It comes down to working relationships. How many times has a co-worker “covered” for you? Maybe you took an extra-long smoke break or something trivial when the boss was looking for you. That same behavior should be expected no matter where you go.

I would recommend an attorney who has privileges in the county where you are charged. New attorneys will promise you the moon to get your case. What you should look for is an attorney who can post your bail with little or no money out of your pocket. There was an article in the local paper of attorneys complaining that some other attorneys in the county get special privileges with respect to bonds and bail. It is true, but the complaining attorneys just have to put in time to get to that place in their respective careers. So when you are shopping for an attorney, you should ask questions about bonds and bail monies.

Any attorney you can hire is either a small business owner or they are part of a partnership. Every business owner does business their way. I have seen where the attorney’s office does not send out invoices or bills for you to pay. Be sure to discuss billing with any attorney you hire. If no bill is sent, be certain to make timely payments to the attorney’s office for your account. I have seen attorneys force a deal that could have been better if it were not for the fact that no payments were made because no invoices were sent. That is a unfortunate and sad outcome for a case that potentially could have been dismissed. It will never be known because the case went down a different path.

Be aware of lying attorneys. Remember, it is all about the money.

Part 3 – Court

Always dress professionally. The judge runs the court. This is a place the judge works in every day. Some of the support staff are also there every day. These people work together. They are colleagues. They will cover each other’s back. The attorneys and defendants are the only thing that change. Every case is different. Even if they appear to be the same, they are different. So every case has a different outcome. Should you meet someone with the same offense and charge that has the same outcome, that would be a coincidence. Some of the more populous counties have been trying to standardize the court outcomes. Every judge has the final say as to what the final punishment will be.

The judge relies on the DA and defendant’s attorney to work out an acceptable deal. The judge does not consider what is fair based on what other defendants in other courts received for a similar crime. So the outcome could be better or worse than someone else’s outcome with the same charges.

There is no “fairness” to any of this. Justice has nothing to do with what the victim wants. If that was so, then a lot of people would get away with their crimes whiles others would get the death penalty. The penalty prescribed by law was developed well before you committed any crime. The judge applies what is prescribed by law moderated by the relationship with the attorney you chose and the relationship of the DA assign to his court.

It is very important that you choose an attorney that has a good standing with the judge of the court your case is assigned to. When shopping for an attorney to represent you, you should ask questions about cases represented before the judge assigned your case and the outcomes. Some attorneys get better deals in different courts. You can look up past court cases to see some completed court cases and which attorneys got better deals.

The court is an insane place. The only person who seemed to have it together was the judge. The attorneys will be socializing with court officers and other attorneys. Don’t be shocked if you see your attorney having a coffee break with the DA. That is how deals are made.

Part 4 – The deal

A case I am familiar with was set to go to trial. The DA could not locate the victim or victim’s family. No witnesses or victim to question, the case gets dismissed. Since the attorney’s office never sent a bill, no money was paid for the defense. When a plea deal was reached, the attorney wanted to know how much money was paid to date. When the answer was none, $0. The attorney said “You’re taking this deal or going to jail.” Did not matter that we had a winnable case. The deal involved court ordered classes for a course and potential early release from probation.

In the end, no early release and classes the entire time, not just to the end of the course. If you are good terms with your attorney, they can work out some pretty good deals. Everyone gets additional court ordered requirements. Just how imposing these additional requirements are is what can be negotiated. Work out a plan with your attorney. That way they can work on achieving those objectives when negotiating a deal.

Part 5 – public servants

I have found that a lot of people on probation don’t really care about the terms they agreed to when in court. The probation department is the courts way of keeping tabs on you. The career probation officer has a case load of 40 to 50 probationers they are assigned to monitor. Depending on what you got your attorney to get in the deal, you could report weekly, bi-monthly, monthly, quarterly and in some cases annually. Some can be by phone others require an office visit and some are made at your home or by the internet. It is whatever is in the deal agreement.

The judge also gives the probation officer the ability to change or allow certain things. Again, it is all about the deal agreed to.

Some of the career probation officers are prone to lying or incorrectly documenting your history in the file they keep on you. Anytime you do not comply with the probation requirements, you are in non-compliance. It is these non-compliance items that they will use against you. Some officers think or act like they believe every probationer belongs behind bars. They will try to make your like a living hell. It will seem there is nothing you can do that is the right thing to do. If you get into that trap, then they are doing their job well. Very few, but some probationers either give up and ask to go to jail while others commit suicide. If you know what is coming, then you can be better prepared to handle it. There is an end to this administered justice, unless you are one of the few that get a deal that is for the rest of your life. But even that can be challenged with the right amount of money and right attorney.

Even though the court allows the probation office to change reporting time and other things, they rarely do. The will have to defend their actions to the judge should something happen on their watch. These probation officers are the ones that will take a very conservative approach. They will allow nothing, so they have nothing to defend. This particular situation can really suck. It will seem like you are in jail at home. In some probation departments, the officers are assigned probationers based on the address you live at. If you get one of the PO’s that refuses everything, then you could move across town and get a different PO assigned to your case. The new PO could be worse though. Every time a PO gets a probationer, they typically want to set the tone as to whom is in charge. So it will be like starting probation all over again. At least until they learn who you are and can trust your decisions.

Part 6 – therapy

Therapists are people. They have advanced degrees. Very few people with advanced degrees are humble because they did work at getting those advanced degrees. As for therapy, that is a good thing whether you are ordered to receive it or you just want to better your life. Some of the therapists get involved with the justice system because they truly want to make a difference to make the community a better place. Others have some sort of issue were they want to make criminals pay. The therapists that want to make criminals pay seem to have a chip on their shoulder and if you find yourself in a situation where the therapist is abusing their role, then change therapists. If you are in a group where there are other therapists in the organization, then change groups, otherwise speak with your attorney or probation officer about changing therapists.

Remember court ordered therapists are required to report any new crimes you were not charged with and you have confessed to while in therapy. Never reveal names ages or exact dates when recalling your historical experiences. If the therapist cannot identify who you are discussing and when it happened, then they will not be able to report a new crime. Therapy is all about reprogramming your mind and thought patterns to make it less likely you will reoffend. It also educates yourself on who you are as well as what your values were and are.

An exercise in therapy is to make you determine how to real your past to people you meet. The therapy group was not really giving explicit help in which words to use. I had no idea what to tell people and not scare them off or turn them into activist to get you to move. I found it very useful to see a personal therapist while seeing a court ordered therapist. I ended this exercise by going to the extreme and “confessing” that whole and absolute truth of everything I was going through to a complete stranger. The therapist and group was shocked I did that. Then the useful advice was received.

Remember that before getting into this situation, you were living your life as you saw fit. Bad choices were made and you were caught on one or more of those bad choices. Before you started making bad choices, you were just an innocent child. Since you got caught, you should be making better choices in what you do. So if you were to make a life timeline like facebook does. You would have a lot of good choices, some bad choices, then back to good choices. If you continue to make good choices from now on, then as your life timeline grows, the section of bad choices becomes a smaller part of who you were.

If you get into a good therapy program, it is amazing what you will learn about people. You will see and recognize different behavior patterns in the way people you meet act and respond to different situations.

Part 7 – polygraphs

Wow, what a farce. Some people really, honestly believe their own bullshit. These people will pass a polygraph test. I also have a suspicion that people with no remorse would also pass. You can pass. The main advice is to know you are living a clean righteous life. If you know you are not reoffending and living to really take care of yourself and your family, you should pass any polygraphs they give you. UNLESS you have a polygrapher that need more money.

The system of using polygraphs is set up for several reasons. Intimidating you into admission of additional crimes. Pressure to keep you on the right path. An aid in determining if you respond to “normal” stress situations.

There are several reasons why they should not use polygraphs. Some people can lie and it is not detected. There are no universal standards for administering polygraphs. Every polygrapher has the ability to setup their instrument however they want. Some therapists and probation department allow the opinion of the polygrapher to override the instrument results. What I mean is you could pass the questions and the machine says you are not lying, but the person administering the test to you says they believe you are hiding something, so they mark your results as inconclusive. Meaning you failed the test. If you fail a test, you have to retake the test and pay all over again. There is no oversight on this. I have noticed every year that in November, there seemed to be a lot of failed polygraphs with one particular vendor. The subject retakes the polygraph and passes with no new information revealed.

The way a polygraph works is based on monitoring your body responses when asked certain questions.
They connect the following sensors:
Blood pressure cuff
Sweat detectors on two fingers
Upper chest expansion gauge
Lower chest expansion gauge
Seat pad
Floor / foot pad
Camera
Microphone

Now if you think about it, what does each of these sensors do and how would it be setup? Blood pressure cuff is pretty obvious. It monitors your heart rate and systolic pressure. The sweat detectors measure the conductivity of your skin surface. The chest expansion sensors measure your breathing rate and depth. The seat detector measure the position of your body in the chair. The foot pad measure the position of your feet.

The polygrapher has to setup each of these sensors to properly measure your body response. When you are first connected, the polygrapher has to set a baseline reading. Adjust each sensor so they can adequately capture the changes in each body function being monitored. Once a good baseline is established, you asked each of the questions and you answer with a YES or a NO. They want absolutely NO movement. These sensors are VERY sensitive. After you complete the questions, the whole thing is repeated 2 more times but with the questions in a different order. Once all testing is done, there are two ways to grade the results. By hand, they read each exam and compare the sensor responses then determine if you pass or fail. Or they can let the software rate your results. The answer is a probability of your responses being “truthful”.

How to prepare for a polygraph. First and foremost, know that you are doing your absolute best at being a good person and not doing anything intentionally to be in non-compliance with your probation agreement. Learn some meditation techniques to relax. The system is used to catch people that are committing new offenses and to determine if you have revealed everything to group or the therapist. I noticed that I can feel my muscle tension. Stop and relax. Think about how your hands feel. Try to release the muscles and melt the tension away. Do this with each area of your body. I found that as time goes by, I tend to tighten up. If you practice relaxation techniques, you too will notice when you are tightening muscles. When you answer the last question, you will be told to sit still while they finish the test. This is where the system is looking for your body to relax. I always tries to remain exactly as I was. I do not relax anywhere. I hold still until I get the all clear sign.

I try to choose a polygrapher that has retired from a different career. These people are living on a pension and would be less likely to fail you for an opportunity to retest you for a second fee. Unfortunately that happens way to many times.

Part 8 – revocation

Let me tell you a story. I was placed on probation. After induction into the system, I was accepting the fact that I had a contract with the court to follow through this program called probation. I was instructed to go to the main reporting office either that day or the next. I choose to go that day and get things started.

I placed all of my copies of paperwork I received into a folder. I brought this folder to the main reporting office for my first visit. I checked in and told the front desk staff that this was my first time reporting. They took my name and told me to have a seat and wait for my name to be called.

About an hour later I was called to go into the back where all of the offices are located. I met my probation officer and she had no paperwork for my case. I offered her to look at my copies. She took them and proceeded to put them in her folder while asking me if I was related to someone who was my brother. I said those were my copies of my case paperwork and she could copy them if she liked but I needed them back. And Yes, he was my brother.

She stood you and started shouting at me that she is in charge and who do I think I was? I was dumbfounded as to what was going on. She handed me back my paperwork and said, “Let’s start over.” She walked out of her office, turned around came in the office and said “hello, my name is Officer D.” Then sat down and proceeded to ask me questions as to why I was there.

The next day I found out that my brother had named that particular probation office as a defendant in a court case that was mutually dropped 3 years prior. She had recently been restored to her position as a main office lead in the probation department.

This particular probation officer intentionally incorrectly recorded issues I reported during my visits. By doing this, she built a fraudulent case against me to get me revoked. Each of the incidents she reported as a non-compliance issue in the order to revoke presented to the judge. I paid an attorney $10,000 to represent me in the revocation hearing. The attorney assigned to my case advised me that the misinformation in the revocation order can be addressed for the $10,000 and an additional $10,000 would be needed to address the revocation hearing. In my mind, it is all the same case and should have been addressed with the one $10,000 retainer. I was advised that the judge knows what is going on with the probation officers making these fraudulent claims. He advised I don’t worry about the wrongful charges, plead guilty to those charges and let the judge put me back into the probation program. It will not matter in the long run.

What a bunch of garbage. That attorney should have addressed everything in the hearing. But that would involve opening the case and potentially having the judge drop the probation agreement and sending me to jail. So what a decision to have to make when I did everything the court was requiring of me.
Down the road, that revocation hearing encouraged the judge from granting an early release. That I think was the original probation officer’s intent.

Francisco Hernandez

Author Francisco Hernandez

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