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  • Bonds, Pretrial Release & Sentencing Guidelines – The Many Differences Between State and Federal Court

    5/15/20128:48:42 PM Link 0 comments | Add comment

    arrest, attorney, bail, bond, criminal, Criminal Defense Lawyer, criminal law, criminal procedure, federal court, felony, pretrial release, Prosecution

     

    Although the general concepts and theories for prosecuting or defending a criminal case are the same, criminal procedure in federal court is significantly different than in state court.  There are different rules on case progression, different rules regarding pretrial release and more restrictive guidelines for criminal sentencing.

    Every state has both state courts and their local federal court.  Often times there are overlap between the jurisdictions.  In other words, it is possible to be prosecuted in both state and federal court for the same criminal act.  This is one of the most difficult things to explain to a new client, as most people have an incorrect understanding of what double jeopardy is in a criminal case. 

    The states that make up the United States of America are all sovereign states; they have complete power over their own state matters, and thus control over prosecutions for criminal offenses which occur within their borders.  The exception to this is when the crime committed is a violation of federal law.  In this situation, it is possible for there to be criminal consequences at both the state and federal level.  The reason punishment for criminal conduct can take place in both state and federal court without triggering the double jeopardy clause is because state governments and the federal government are considered to be separate sovereigns, having separate sovereign powers.

    Another misconception is that federal court trumps state court, or that federal court is more serious.  State court prosecutions are just as serious as federal court prosecutions.  In fact, most murder cases are tried in state court, as most homicides do not involve an issue of federal law.  You see most of the overlap between state and federal prosecutions in cases involving gun charges or drug charges.

    Pretrial release is also a way in which federal court differs from Nebraska state court.  Typically, if someone is charged with an offense in state court, a bond will be set at their first court appearance.  If the individual is able to post bond, then that person will be released pending litigation of their criminal charges.  In other words, the person gets to live at home while they are being prosecuted.  In federal court there is pretrial release; however, there are no bonds.  Either you get pretrial release or you don’t.  Instead of a bond setting hearing, in federal court there is a detention hearing.  The magistrate judge either authorizes pretrial release or he doesn’t.

    It is true that the federal sentencing guidelines often result in harsher punishments being given out at the federal level, but felony charges are serious whether charged in state or federal court.  When facing criminal prosecution, it is important to take into account potential consequences at both the state and federal level, as well as discuss all options with your attorney. 

     

  • No Contest Plea vs. Guilty Plea Revisited

    12/30/20112:08:27 PM Link 0 comments | Add comment

    accident, attorney, car accident, civil, claim, Criminal Defense, criminal law, criminal procedure, guilty plea, no contest

     

    We have discussed this topic before; however, lately our office has received multiple emails on the subject so we are going to revisit it.

    In a criminal case there are typically four options for the defendant when entering their plea to the charges in the information filed by the prosecution: (1) Not Guilty, (2) Guilty, (3) No Contest and (4) Not Guilty by Reason of Insanity.

    The Not Guilty plea is pretty self explanatory; if you plead not guilty you are saying you did not commit the criminal offenses alleged and that you wish to have your case heard at trial.

    The Guilty plea is also pretty straight forward.  If you plead guilty, you are stating that you are guilty of the offenses charged; that you do not wish to have your case heard by a judge or jury at trial; and that you are ready to receive your punishment.

    The No Contest or Nolo Contendere plea is where most people get confused.  A No Contest plea is treated the same as a Guilty plea for purposes of sentencing.  In other words, if you plead No Contest, the judge will treat you as if you have pled Guilty.  The only difference is that a No Contest Plea cannot be used against you in a separate proceeding, such as a civil lawsuit based on the same set of facts.  You most often see No Contest pleas when there is an issue of restitution in the case, such as damage to property, payment of medical bills, etc. 

    For example, if someone is charged with Willful Reckless Driving, and there was a car accident that resulted from the alleged criminal conduct, the person is not only facing criminal prosecution for the driving offense, but also potential civil liability from the person(s) who was/were harmed (i.e. the person they hit might sue them for money).  This is where the individual’s criminal defense lawyer will advise their client to plead No Contest instead of Guilty, if a plea agreement is reached.  The reason is that later on if their client is sued by the injured party who was hit during the accident, the injured party will not be able to use the No Contest plea against the individual they are suing for damages.

     

     

  • Criminal Case Prosecutions in Omaha, Nebraska

    11/21/201110:53:17 AM Link 0 comments | Add comment

    criminal, criminal defense, criminal law, criminal procedure, Douglas County Attorney, Driving Under the Influence, DUI, felony, Omaha City Prosecutor, Prosecution, trial, U.S. Attorney

     

    There are three offices in Omaha that prosecute crimes: (1) The Omaha City Prosecutor's Office; (2) The Douglas County Attorney's Office and (3) The U.S. Attorney's Office.  The Omaha City Prosecutor's Office handles prosecution of all misdemeanor offenses that are committed in Omaha or Douglas County (i.e. DUI's, misdemeanor assaults, traffic offenses, etc.).  The Douglas County Attorney's Office handles the prosecution of all felony offenses that occur within Douglas County, as well as all domestic violence crimes (i.e. murder, robbery, drug possession, felony DUI, domestic assault, etc.).  The U.S. Attorney's Office handles the prosecution of all federal crimes that take place within the District of Nebraska.

     

    Often times, there is an overlap in jurisdiction between the Douglas County Attorney and the U.S. Attorney.  This happens most often in drug trafficking cases.  If you are being prosecuted for a misdemeanor driving under the influence charge or a simple assault and battery in Omaha, Nebraska, you are likely being prosecuted by the City Prosecutor's Office.  If you are charged with a felony offense such as felony driving under the influence, felony theft, drug possession or first degree assault, then you are likely being prosecuted by the Douglas County Attorney's Office.  If your criminal charges involve violation of a federal statute or transporting illegal items across state lines (most often guns or drugs), then you will be dealing with the U.S. Attorney's Office.

     

  • What Should I Look For in a Criminal Defense Attorney?

    8/1/20118:43:40 PM Link 0 comments | Add comment

    arrest, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, criminal procedure, DUI

     

    I have been seeing this question a lot lately.  Probably the best answer is choose someone you trust and are comfortable with.  Of course you want to look for a lawyer that has experience and is familiar both with the courthouse and your specific type of case.  But once you narrow the field, the best idea is to meet with prospective attorneys and decide which one you will be most comfortable with.  Beside the outcome, try to think of what will be most important to you during the pendency of your case (i.e. promptly returning phone calls, face-to-face time, demeanor, price, etc.).  Then ask the criminal lawyers you meet with questions based on the criteria you have developed.  Again, the bottom line is that when you are facing prosecution on criminal charges you will be nervous enough as is.  You need to be able to trust your attorney and feel comfortable that he or she is doing their best to represent your interests.

     

     

  • What is Diversion? How do I keep a conviction off of my record?

    7/2/201110:29:35 PM Link 0 comments | Add comment

    arrest, attorney, Criminal Defense, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, diversion, drug court, felony, misdemeanor

     

    We have already discussed expungements, pardons and set-asides; however, what’s even better is keeping the conviction off your record in the first place.  Aside from not getting arrested or winning at trial, there are generally two ways of keeping a conviction off your record: (1) some type of pretrial diversion program or (2) some type of post-plea diversion program.  In Omaha, NE, the two most popular programs for keeping a conviction off your record are Diversion and Drug Court.

     

    In order to be eligible for Diversion, you must meet certain requirements.  You cannot have a significant prior record and the crime(s) you are alleged to have committed must not involve violence.  You will not be allowed into a diversionary program if you are charged with violent offenses such as robbery, assault or murder; however, if you are charged with less serious offenses such as shoplifting, drug possession or damage to property, you may be a candidate.  Each person in the Diversion program has requirements that are specifically tailored to that person’s circumstances.  Requirements for Diversion can include restitution, community service, finding employment, finishing a degree, anger management, etc.  If you are allowed into the Diversion program, and you complete the terms of your program successfully, the State will dismiss all charges against you.  If you do not complete the terms of your program, or if you get into additional trouble, you will be kicked out of the program and the State will proceed with your prosecution.

     

    The Drug Court program is very similar to Diversion; however Drug Court occurs post-plea and centers on substance abuse.  Post-plea means that you begin the program after you enter a plea of guilty to the crimes you are charged with.  If you complete the program successfully, you are allowed to withdraw your plea of guilty and the State then dismisses the charges against you.  Drug Court generally is more intensive than general Diversion.  Drug Court participants have meetings once a week at the courthouse.  Participants in the program must stay sober and are required to follow-through with their specific treatment program.  For the most part, participants are not kicked out for relapsing; although, there are sanctions for misconduct and serious consequences for lying and/or reoffending.  Because Drug Court is post-plea, the judge can sentence you on your underlying charges at anytime should you not hold up your end of the bargain. 

     

    If you have been charged with a criminal offense in Nebraska, and you do not have a lengthy record and/or your problems revolve around substance abuse, make sure to speak with your criminal defense lawyer about the possibility of a Diversion or Drug Court program. 

     

     

  • Do Police Have To Read You Your Miranda Rights?

    3/31/20119:10:15 PM Link 0 comments | Add comment

    criminal, criminal law, interrogation, lawyer, Miranda rights, suppress

     

    The short answer is NO.  Police officers do not have to read you your rights.  Not having your rights read to you is not a get out of jail free card.  Now, there may be consequences as a result of law enforcement not properly informing you of your rights under the Miranda decision.  For instance, depending on the circumstances, evidence gained by law enforcement after your detention or arrest, but before you have been mirandized, may be “suppressed” or kept out of trial by the judge.  Let’s use someone who is arrested as a suspect in a robbery case as an example.  If law enforcement interrogates that person without ever properly mirandizing them (i.e. informing them of their right to counsel, to remain silent, etc.), there is a good chance a good criminal defense attorney will be able to suppress or keep any of the statements their client made from being used against them at trial.  Now, if there is no harm then no foul.  In other words, if the same person is arrested as a suspect, interrogated and refuses to make any statements; then there are no statements which will need to be suppressed by that person’s attorney.  Again, to reiterate, no Miranda does NOT equal no jail.  Many seasoned police officers will not advise a suspect of their rights on purpose to see if the suspect makes any "voluntary" statements.  Statements made voluntarily, without inducement fom law enforcement, are generally admissible as evidence in a criminal trial.  Just remember, if ever questioned by law enforcement it is best to not make any statements other than your statement requesting a lawyer. 

     

     

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