Law Trends & News

What Do You Do When You Get a Call in the Middle of the Night From a Family Member Or Friend of a Potential Client Who Has Been Arrested?

By Darryl A. Goldberg

It was a long day at the office and you drift asleep, only to awake to the phone ringing in the middle of the night. Is everything alright? Who could be calling at this hour? Is it your little brother at college? How about your parents back at home? Some of you may moan to yourself, “What now!” When you pick up the telephone you start to breathe again. But before you can sigh with relief, you realize your answering service has connected you with a nervous, and inquisitive, person on the other end. Someone was arrested: how do you handle the call?

Although nothing but experience can prepare you for the barrage of questions that will be hurled at you, this checklist may provide some of the fundamentals that will allow you to answer those burning questions without later realizing that you had no idea what you were talking about, especially those who didn’t take an introductory criminal procedure course in law school. Of course, please keep in mind that every jurisdiction has its own unique rules and procedures.

▪Booking: “We heard Johnny was taken to the local police station, but nobody has heard from him; what’s going on?” Routinely, after a suspect is arrested, they are usually booked or processed, and this can take quite some time. Typically, this will include gathering personal information such as a name, address, and date of birth, but also will include fingerprinting, photographing, and searching the suspect. Almost all law enforcement agencies have an inventory system where the suspect’s personal property (i.e., a wallet, currency, keys, cell phone, etc.) is confiscated and documented, to be returned upon the suspect’s release from custody. Sometimes, the property will be released to family members or friends, with the suspect’s consent of course. So when Johnny’s father is wondering when he can get his car back, he should know that his car and keys may be released. However, there is an exception: his car may be impounded and seized because it was allegedly used in the commission of a crime. Sometimes the booking process is prolonged because the suspect’s fingerprints may not “clear,” or they redline, which simply means that the booking officer did not get a good enough exemplar to enter into the database to compare the suspect’s prints against those with outstanding arrest warrants or detainers of any kind.

▪Questioning: “So are they putting Sam in that little room like they do on television and asking him all sorts of questions? Can’t you go down and talk to him?” Certainly law enforcement officers will take advantage of an opportunity to question a suspect, but you won’t necessarily have access to your now potential client. In 1986, in the case of Moran v. Burbine,¹ the Supreme Court of the United States held that the police do not need to notify a suspect that his lawyer is at the police station requesting to speak to him or her. However, in some jurisdictions (such as Illinois), the legislature mandates that a lawyer must be given access to his client at the station. Of course, in the event that the accused requests a lawyer, all questioning must cease until the accused has had an opportunity to consult with an attorney. If your prospective client actually gets you on the line, or the police officers let you speak to him or her (as required in most jurisdictions), there is nothing impermissible or obstructive of justice to simply tell your client-to-be not to speak to the police. A confession is the most powerful piece of evidence for the prosecution. What you see on TV certainly rings true in almost every case: whatever you say can and will be used against you.

▪Bail: “Adam was just arrested. When will he get out?” you’re asked. Generally, after a suspect is booked, the suspect will usually be entitled to reasonable bail, as guaranteed by the federal and state constitutions. Often, for some relatively minor or misdemeanor offenses, a suspect may be released on their own recognizance when they promise in writing to appear in court, or allowed to post bail (money given in exchange for the suspect’s release from custody) at the police station, which is also accompanied with the promise that the suspect will appear in court for any and all proceedings that will follow. However, in most cases, a suspect will not be allowed to post bail at the police station, and a judge will decide whether to allow release on bail and under what conditions. In some jurisdictions, the bail amount is predetermined through a codified “schedule,” or simply through judicial process where a judge takes into account the seriousness of the crime, the nature of the evidence, but most importantly other factors including but not limited to the suspect’s: 1) ties to the community; 2) risk of flight; and 3) criminal record (or lack thereof). Certainly, the more serious the charge, the higher the bail amount will be, and under certain circumstances bail can be denied. For example, under the Bail Reform Act, there is a rebutable presumption that defendants charged in federal court for certain drug trafficking crimes are presumed to be a flight risk and a danger to the community and thus must be detained pending trial.

▪First (or Second) Appearance: “After the judge sets bail, when will Jake be back in court?” Assuming that the defendant is booked and the judge sets bail, the next time he or she comes to court will be for a preliminary hearing or an arraignment, depending on the jurisdiction. The term arraignment is sometimes used synonymously with “initial appearance,” but a “formal” arraignment usually takes place after a preliminary hearing in which a judge has found probable cause (enough evidence) to force the defendant to stand trial. So, generally, the preliminary hearing will be held to determine whether the prosecution has enough evidence to bring the charge, but at this point there is not a determination as whether the prosecution can prove the defendant guilty beyond a reasonable doubt. Alternatively, the prosecution may seek a grand jury indictment, where a group of citizens make up the grand jury and determine whether a case should proceed to trial based on narrowly tailored information presented by a prosecutor in closed proceedings.

▪Bond: “Well, I don’t get it: what’s the difference between bail and bond?” Once the bail amount is set, “bond” will usually be posted if friends and family can gather up enough money or collateral to post. In some jurisdictions, 10 percent of the bail amount is typically required as bond, which accompanies a written guarantee that the full bail amount will be paid if the suspect fails to appear. Bail bond agencies are available in some jurisdictions that will post the bond in exchange for a fee (usually about 10–15 percent of the bail), and usually require some collateral (in addition to the fee) because they will be liable for the full bail amount if the suspect is released and fails to show up in court as promised. In federal court, it is common to post real property to secure a defendant’s release from custody pending trial. In certain instances, such as in drug trafficking, robbery, and theft cases, the prosecution will ask for a “source of funds” hearing, also referred to as a Nebia hearing, before bond can be posted. If the judge grants the prosecution’s request, the person posting bond must prove that, more likely than not, the source of the bond is legitimate, that is, the money is not the proceeds of a crime. One of the simpler ways to accomplish this task to have the defendant’s family or friend refinance a home and use the proceeds of the loan as funds for the bond. Another way is prove that the money used to post bond is legitimate is to take it from a long-standing bank account that has maintained a balance in excess of the bond for some time before the defendant allegedly committed the crime charged.

▪Visiting hours: “What if I can’t raise the 10 percent to bond him out—when can I go see him?” Assuming that bond has been set, and the friends and family can’t raise enough money to bond out the defendant, how can they visit him or her? Every county jail or detention center has unique rules and regulations regarding visiting hours and even the type of attire visitors can where to the jail. Before advising anyone about when and where they can visit the defendant, check with the county jail or local law enforcement agency responsible for overseeing the jail. Much of the pertinent information is available online, via the Internet, and often has detailed information such as the bail amount and the defendant’s next court date, in the event that the suspect is still incarcerated pending trial.

▪Time frame: “From start to finish, how long does this whole process take?” Many people who have no past experience with the criminal justice system have very unrealistic expectations of how fast the system works. One thing is almost universally true, no matter the jurisdiction: The wheels of justice spin slowly. That’s easy for me to say, because the felony courts in Cook County have been backed up for years, and the county jail is routinely overcapacity. It has gotten to the point where the Chief Judge of the Criminal Courts is considering implementing a case management program where cases are to be disposed of in a relatively short period of time after arraignment (sixty days), barring any unusual circumstances. Other courts throughout the country have followed this approach, but major metropolitan areas seem to have a backlog of cases. Of course, every defendant is entitled to a speedy trial and guaranteed by the United States Constitution, but not every state seems to enforce it. What I mean by that is, sometimes delay that is occasioned to the court and simply the backlog of cases is not counted against the prosecution and the speed in which they must bring a defendant to trial. For example, I know of one case in the Commonwealth of Massachusetts, where the defendant has demanded trial, and his case was placed in a trial “pool” and set for trial in the beginning of 2006; as of October 2006, the case had not been tried simply due to the overwhelming number of cases set for trial in that jurisdiction. More importantly, every client and their family and friends must understand that the only way to get results is to be prepared, and that takes time. The prosecution is immediately at an advantage that a defendant must try and overcome, through thorough investigation and a complete understanding of the prosecution’s theory of the case.

▪Guilt beyond a reasonable doubt: “Well, but you don’t understand, he didn’t do it, this should be a piece of cake!” Although your potential client may truly be innocent, it is often a daunting task proving it. You may be wondering if I’m crazy, because one thing you learned while studying for the bar exam, or even watching Law and Order reruns, is that the prosecution must prove a defendant’s guilt beyond a reasonable doubt, and the defendant never has to prove his innocence. Although that constitutional adage packs some weight behind its punch, innocuous conduct has a way of being misconstrued by a jury or molded into something more incriminating by a trained prosecutor. Make sure your client understands right away that even for the most talented defense lawyer in the simplest cases, gaining an acquittal for your client is never a piece of cake.

▪Advice: “So now what do I do? Timmy is stuck in jail, you tell me to be patient, but you can’t guarantee when or if he is ever coming out!” Clearly the ABA’s Model Rules of Professional Responsibility (which are adopted by most, if not all states) clearly forbid you from guaranteeing an acquittal for your client in a criminal case. But don’t be surprised if a potential client or their loved ones ask for a guarantee. Kindly explain you are forbidden from guaranteeing any result, but that you’ll do whatever it takes (within the bounds of the ethical rules) to successfully defend your client-to-be. Of course, that’s if you’re up to the task. “Dabbling” in a criminal legal practice is dangerous; it can be devastating for both you and your client. Proceed with great caution and care.

This elementary checklist may help you answer a few of those burning questions in the middle of the night, and might stave off some embarrassment of appearing ignorant of basic criminal defense, but one thing must be understood: Leave it to the criminal defense bar. There is nothing demeaning about being upfront with your potential clients about your inexperience; in my opinion, there is nothing nobler. Remember, you are dealing with a person’s liberty. But if you’re determined to jump into the ring, make sure you have your gloves on, and all the protective equipment you need: a mentor or trainer in your corner that can at least try and prepare you for the fight.