avoiding self-incrimination - James Novak

3 Things You Need to Know about Plea Deals and Deferred Prosecution

The Law Office of James Novak Team — Fri, 12 May 2017 02:42:39 GMT

If you have criminal charges, it is likely that you will be faced with the decision of whether or not to take your case to trial. As an alternative to trial, you may be offered a plea deal. In some cases the prosecution can offer participation in a deferred prosecution program if it is available for certain types of criminal charges.

Last year Maricopa County Superior Court reported that of 99.8 percent of terminated criminal cases, only 2.2 percent went to trial.

The United States Sentencing Commission (USSC) reported similar statistics in 2016. The USSC reported 97.3 percent of criminal cases were resolved without trial, while only 2.7 percent went to trial.

A majority of defendants opt for plea deals or deferred prosecution when made available to them, to avoid the uncertainties of trial verdicts, and harsh sentencing.

Prosecutors are encouraged to pursue plea agreements in criminal cases, and offer diversion programs when possible, to reduce court caseloads and to preserve the resources needed to conduct trials.

Defendants must also consider whether or not their statements made for purposes of plea negotiations or deferred sentencing, may be used against them if the charges are later prosecuted.

Recently, the Arizona Supreme Court reviewed a case in which the defendant opted to participate in deferred prosecution, but did not complete it. The Court considered the question of whether statements made by a defendant in connection with his deferred prosecution agreement were admissible.

Arizona Supreme Court Opinion

The case arose when a security guard found the defendant with marijuana in a restroom. The defendant was charged with a class 6 felony for possession or use of marijuana and participated in plea discussions.

The defendant rejected a plea agreement during a comprehensive pretrial conference. Shortly thereafter, his charge was reduced to a class 1 misdemeanor.

The defendant was extended an offer to participation in a drug treatment program, for which he agreed in exchange for deferred prosecution.

After accepting the deferred prosecution agreement, the defendant met with a representative of the diversion program to register. During the meeting which he attended with his attorney, the defendant completed a form that stated he understood his Miranda rights.

On the program’s statement of facts form, the defendant signed an agreement indicating that he understood that his statements could be used against him if he failed to complete the diversion program.

He admitted on the form that the marijuana was found in his possession on the floor.

A few months later, the State resumed the prosecution because the defendant didn’t attend seminars as required. He had also tested positive for marijuana and alcohol, in violation of the program terms.

The defense moved to suppress statements he’d given on the program registration form arguing that since the statements were made as part of plea discussions, they should be protected by Rule 410. The trial court denied the motion.

The defendant was found guilty after a bench trial. He was sentenced to a year of probation with a suspended sentenced.

He appealed the conviction. The court rejected the argument on appeal that his statements were inadmissible. The appeals court held that the defendant did not make admissions to a prosecutor during plea discussions and he had waived protection of Rule 410.

The appellate court held that Rule 410 didn’t apply because (1) discussions about deferred prosecutions weren’t plea discussions; and (2) those statements were given after he had rejected a plea offer.

The Court noted that the defendant had gone to the settlement conference where he’d gotten deferred prosecution with his father, his attorney, a prosecutor, and court commissioner present. No other options besides deferred prosecution were brought up at the hearing.

The defendant’s father had been corrected by the commissioner and prosecutor when he mistakenly said the son would have to plead guilty to participate in the program. The court explained that in deferred prosecution, a guilty plea is not entered. The defendant talked to his father before completing the registration paperwork, which included the form in which he admitted he possessed marijuana.

The Court took note that at no point was the defendant offered a plea deal. It explained that in a plea discussion the prosecution negotiates with the defendant about pleading guilty or no contest in exchange for a concession. In contrast, in a deferred prosecution discussion, they negotiate about whether the defendant will join a special program that results in a deferment or diversion before the guilty plea or a trial. When a defendant completes this program, his charges will be dismissed entirely. In contrast, a guilty plea never results in a dismissal since the defendant formally admits he committed a crime.

The Court held that Rule 410 and Arizona Rule of Criminal Procedure 17.4(f) didn’t apply to discussions about deferred prosecutions. It clarified that the appellate court was incorrect in holding Rule 410 didn’t apply only because he’d rejected a plea deal.

The Court also stated that the representative of the diversion program wasn’t an agent of the prosecutor for purposes of negotiating a plea. The defendant argued the representative was a state agent because the county attorney’s office name appeared on the forms. The Court rejected the idea that this made the diversion program representative a prosecutor’s agent for purposes of plea discussions, noting again he didn’t negotiate a plea.

Finally, the defendant argued his waiver agreement didn’t specify Rule 410. The Court explained a knowing waiver of Rule 410 only required that the defendant know the nature of the rights being abandoned and the consequences. He was specifically told by the prosecutor that if he failed the diversion program, the paperwork for the program could be used against him for trial. He was also told he could go to trial instead of making an admission. The drug conviction was affirmed.

3 Things You Should Know About Deferred Prosecution, Plea Deals & Legal Representation

Below is an overview of their framework, and the importance legal representation in these agreements:

I. Deferred Prosecution – 1) You do not plead guilty. Instead, you agree to participate in a special program when and if, made available to you by the court as an alternative to prosecution of particular types of criminal charges. 2) After successful completion of the program your charges will be dismissed. If you fail to complete the program the state will continue to prosecute the charges. 3) Any statements made in pre-trial discussions or written statements prerequisite to the program can be used against you.

II. Plea Agreement – 1) You must plead guilty.In a plea arrangement you are required to enter a guilty plea in exchange for a leniency in sentencing. 2) After an agreement is reached, the presiding judge will either approve or reject the plea agreement at their discretion. If the parties cannot reach an agreement the case will go to trial. 3) Statements that might otherwise be incriminating that were made to further plea discussions cannot be used against you, if you later decide not to accept the plea agreement.

III. Legal Advocacy – 1) Whether your matter involves a plea agreement or deferred prosecution, you should obtain legal representation as soon as possible. 2) In the least you should consult an attorney before your first court appearance which is usually the arraignment. If the prosecution extends an offer and you do not have an attorney, they often are unwilling to offer more favorable terms if you decide later to hire one. 3) Deferred prosecution is an offer made by the prosecution. However, defendants are sometimes surprised to learn that they do not qualify for the program, or that the court does not offer deferred prosecution for their charges. An experienced criminal defense attorney can help you to explore your options, make sure your rights are protected, and work to help qualify you for the program if it is available. If a plea agreement is involved, your criminal defense attorney will make sure that the plea terms are fair, constitutional, and the most favorable that can be obtained based on the circumstances of your charges.

Criminal Defense Attorney for Deferred Prosecution, Plea Agreement and Trial Mesa AZ

Possession of marijuana outside of the provisions of the Arizona Medical Marijuana Act is still illegal in this state. Those found guilty of marijuana possession, will be exposed to harsh felony sentencing.

The state imposes prison sentencing of ranges from 6 months to 1.5 years for possession of less than 2 pounds for personal use, felony records, fines, fees, assessments, participation in a substance abuse program, and any other penalties the court deems necessary.

For these reasons it is important to consult and retain an experienced criminal defense attorney to represent you in your charges. You will need an attorney with strong litigation and negotiation skills, and one who is familiar with the courts and rules of procedure in the jurisdiction where you were arrested.

James Novak, criminal defense attorney, is a former prosecutor in Maricopa County, with over 20 years of experience in handling criminal cases. He provides a free consultation for clients who face active charges in Mesa, Tempe, Phoenix, Chandler, Gilbert, and Scottsdale Arizona.

If retained, James Novak of the Law Office of James Novak will evaluate your case, the evidence, and all circumstances surrounding the incident. He will work with you closely to determine the best defense strategy and work to maximum your freedom and work vigorously to obtain the most favorable resolution for your charges.

Contact or call Attorney, James Novak at (480) 413-1499 for your free initial consultation. He will speak with you directly and in strict confidence to discuss your criminal matter, and defense options.

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DUI Confessions, Self-Incrimination in Arizona – Pleading the Fifth on Social Media

The Law Office of James Novak Team — Tue, 02 Sep 2014 11:00:00 GMT

A Tragic Video Confession

You might remember the viral video of an Arizona man, 22 year old Matthew Cordle, who caused a fatal drunk driving accident. He provided a confession in a four-minute online video that went viral with 2.3 million views last September.

Cordle began his chilling confession with “My name is Matthew Cordle and on June 22, 2013, I hit and killed Vincent Canzani. This video will act as my confession.”

Vincent Canzani 61, was the father of two daughters, and a former USA Naval Submarine Veteran. He was pronounced dead at the scene of the accident.

Immediately following the crash, Cordle was taken to the hospital for his injuries. But at that time he denied being intoxicated, driving impaired, or causing the fatal accident.

Cordle confessed in the video, that he was driving the wrong way on an interstate, and crashed into Vincent Canzani vehicle.

In the video was the blurred face of man, Cordle, admitting to barhopping, blacking out and driving home drunk. Cordle explained that he had been drinking heavily before getting behind the wheel, and blacked out just before losing control of his vehicle.

Cordle had not yet been charged at the time the video was made, but was expecting the charges to be brought based on the DUI blood test results.

Interestingly, Cordle had retained an attorney, but his attorney claimed he was not aware that his client had planned to post a video confession on the internet.

The DUI test results revealed that Cordle had been driving with a Blood Alcohol Content (BAC) of 0.191 percent. In Arizona, BAC of .015 to .019 DUI would be in violation of the Extreme DUI laws.

Cordle faced the State’s maximum sentence in the charges of 8 1/2 years in prison for aggravated vehicular homicide and an operating under the influence (OUI).

Cordle said the reason he made the video was to encourage people not to drink and drive. In it he claimed that he understood that the video was a confession that would provide prosecutors with necessary ammunition against him to get a conviction.

Following the video confession, Cordle was formally charged. But at the arraignment, the suspect pled “not-guilty”. Entering a plea of “not-guilty” invokes a suspects right to defend their charges and retain legal representation.

However, the initial “not guilty plea” did not sit well with the presiding judge. She expected Cordle to plead guilty since he already confessed to the crime. The judge claimed she was “incensed” that Cordle did not plead guilty – claiming that a not-guilty plea at this point, in her opinion was a display that the defendant was not “forthright”.

Apparently, Cordle’s defense attorney pled guilty on his client’s behalf, largely due to the fact that under Ohio law, entering a guilty plea locks in the judge. Cordle’s defense attorney was concerned as to how this particular judge would sentence the defendant. He wanted to make sure his client received fair treatment and rather than a sentence influenced by the media or public outcry, as a result of the unfavorable response from the public, social media, and news media coverage. The judge then set Cordle’s bond at $225,000.

In October 2013, Cordle reversed his plea to guilty for charges of aggravated vehicular homicide and operating a vehicle while impaired. He was convicted and sentenced to 6 1/2 years in prison; lifetime driver’s license suspension; and a fine of $1075.00, according to reports.

Cordle claimed his confession was intended with good cause to help others. At the end of the video, he extended a heartfelt and remorseful plea, warning motorists not to drink and drive.

At sentencing, Cordle was met with unexpected mercy by the family of the victim. The victim’s former wife read a letter at Cordle’s sentencing hearing. She requested on behalf of the family that the judge extend leniency in punishment to be imposed. She believed that because of the type of man the victim was, he would not have wanted the defendant to get the maximum punishment. This plea by family likely served to impact the judge’s decision not to impose maximum sentencing, considering the sentence was two years short of the maximum allowable for the charges.

The survivor’s unexpected plea to the judge for leniency in sentencing following the loss of their loved one caused by a drunk driver was compelling to say the least. It was a rare and and exceptional response from a family who lost a loved one whose life was ended by a drunk driver. One few defendants would be afforded under similar circumstances.

A wrongful death of a loved one in and of itself is enough to harden the hearts of their families. But for many, there is no worse aggravation of pain and suffering than to learn that the wrongdoer has posted public social media messages, videos, or photos, about the wrongful death or serious injury, or to boast about their involvement in the crime.

Law Enforcement’s Use of Social Media in Criminal Investigations

The Federal Bureau of Investigations (FBI) and Police Agencies have long recognized the benefits of using social media and the internet to derive evidence in criminal investigations.

In the “2013 Social Media Survey” conducted by the International Police Chief’s Association it was revealed that 96 percent of law enforcement agencies surveyed were using social media to investigate crimes. Below are some additional findings from that study:

• 500 police agencies representing 48 states reported using social media as an integral tool for criminal investigations.

• 81 percent of agencies said the most common use of social media was for criminal investigations;

• 80 percent of agencies reported that social media helped solve the crimes in their investigations;

• 69 percent of agencies surveyed had social media policies and 14 percent were in the process of crafting policies;

• 92 percent of the investigations were conducted using Facebook;

• At the time of this survey the top three Social Media outlets used to investigate crimes were Facebook, Twitter, and Youtube. The internet as become a staple in criminal investigations. Police and prosecutors often scour social media accounts and the internet as part of a criminal investigation. There is potential for not only law enforcement officials to learn about criminal involvement, but also for other users to report it to them.

Freely commenting or sharing information about about your drinking and driving behaviors, or involvement in a crime, will usually result in a swift arrest and prosecution of the offense; just what the state and prosecution needs to convict a suspect.

The 5th Amendment of the US Constitution affords persons protection against self-incrimination. States also provide such protections under their own laws and constitution.

To freely post comments or media about a criminal incident for which a person has been involved, outside of, or against the advice from their criminal defense attorney, will jeopardize their case, and their rights in this regard.

Why Do People Post about their Crimes on Social Media?

Dr. Pamela Rutledge, Director of the Media Psychology Research Center (MPRC) , a non-profit organization that examines all aspects of human experience on social media, and it’s impacts on society. She recently commented in a CNN article on this very subject. She explained there are number of reasons people post about their criminal involvement on Social Media. But in most cases the person posting is looking for a way to feel important. She explained that sadly this need for “bravado” often over powers the concern of being caught.

The Federal Bureau of Investigation reported on similar findings in a recent article entitled “Social Media and Law Enforcement”. They wrote “The structure of social media encourages self-promotion. It offers easy access to an unlimited pool of potential “friends.” Individuals who crave validation can achieve a feeling of connection not available in their offline lives. People who have a desire for attention, notoriety, or fame are attracted to it. To get noticed, they often post entertaining or provocative information…Constraints do not exist for social media”.

Facebook, Twitter, Google Plus and other social media outlets, have become an inherent part of people’s lives and work. Its natural for them to speak their mind. Its second nature to post about anything and everything. But once content or media is posted onto an internet website, or social media forum, it becomes “fair game” to use as evidence against the suspects. User’s comments, videos and photos posted or shared that relate to their involvement in a crime is one of the strongest forms of evidence the police and prosecution can use against a suspect. In essence, a person completes the investigation for the prosecution, in what is considered to be one of the strongest forms of evidence that can be used against them.

Electronic communications on the internet, social media, texting or E-mail are just a few of many ways people implicate themselves in DUI charges and other crimes. Another common place where self-incrimination occurs is at a DUI stop.

If you are stopped for suspected drunk driving in Arizona it is important to resist any temptation you might feel about talking to police, and sharing your side of the story. This generally backfires on a suspect. Unfortunately, your openness, and forthright will not generally defuse your problems. But they will often result in arrest and prosecution.

A confession or admission like the public, like the tragic one described above, can severely jeopardize your criminal defense case in court. The statements you give to the police at the DUI stop, and while being detained can be used as evidence against you.

You may also think because you’re drunk, what you say doesn’t matter or that your attorney can later make an argument that your confession was involuntary. In Arizona, a confession is involuntary if a defendant’s will was overcome under the totality of the circumstances. If the State wants to show the confession was made voluntarily and get it admitted into evidence, the State will put an officer on the stand to testify that the confession was made without threat or coercion or promises of immunity.

Even extreme intoxication does not by itself render a confession involuntary in Arizona, as discussed in the case State v. Londo. In that case, a defendant appealed his conviction for narcotics drug sales or transfers claiming that his admission or confession about swallowing crack cocaine was obtained involuntarily and in violation of his right to remain silent. The court ruled that extreme intoxication could be a relevant circumstance but was not enough on its own to get a confession or admission suppressed altogether.

The Fifth Amendment protects your right to remain silent–this silence cannot be held against you. You should not pick and choose which questions you answer, or a negative inference may be raised with respect to the questions you choose not to answer. A blanket refusal to answer questions will work better. Since you also have right to an attorney and the right to a defense, if you are stopped for drunk driving, you can refuse to answer questions and request access to your attorney.

10 Ways to Protect Yourself from Self-Incrimination

Invoke your right to remain silent, even if your “Miranda warning” has not been read to you;
Refrain from posting comments, videos, or any other communications on any social accounts or platforms;
Refrain from texting, or discussing the matter with family and friends;
If the police contact you for questioning about your alleged involvement in a crime, politely and respectfully decline to comment;
Refrain from casual comments with police or authorities, and respectfully ask if you are “free to leave” if you are not being arrested;
Refrain from answering questions at a DUI stop about where you’re going, where you’ve been, what you’ve have had to drink or eat, or any medications you’ve taken;
Refrain from testifying, or providing any testimony verbal, or written, in absence proper criminal defense representation;
Know your rights in order to protect yourself from unlawful search and seizures;
If you are a bystander, or witness, of someone else’s arrest, remain quiet, and do not intervene;
Consult a criminal defense attorney who serves the city where the alleged crime occurred as soon as possible to discuss your concerns, and defense options.

How to invoke your Right to Remain Silent

Keep in mind that the right to remain silent exists even if you are not under arrest. However, it is not enough to remain silent without invoking your right. To invoke this right, you must either state verbally or in writing that you wish to remain silent. If you fail invoke your right, and simply remain silent, you will be seen as being uncooperative.

Criminal Defense for DUI and Crimes in Phoenix AZ

The relationship you have with your DUI attorney makes it possible to be open and forthright about anything related to the alleged crime, but you should not talk about the case to any other people or make any admissions to them.

If you are arrested, have receive criminal or DUI charges, or there is an outstanding warrant for your arrest, you should consult an experienced criminal defense attorney as soon as possible to discuss your matter and defense options If retained, they will protect your rights and provide an effective defense on your behalf. This will increase your chances of being treated fairly, and obtaining more favorable outcome in your case.

If you are under formal investigation for a serious crime, you also have the option of retaining criminal defense protection. This is known as pre-charge or pre-indictment representation.

Pre-charge representation can sometimes lead to charges not being brought, alternative resolutions to the matter, an additional wall of protection to prevent the suspect from self-incrimination; assures your rights are protected, provide self-surrendering assistance to avoid arrest; enables your attorney to be present in the event you are required to undergo questioning or interrogation; and a host of other criminal defense pretrial benefits.

Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert and Scottsdale, AZ.

Additional Resources:

More Blogs

Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013
Arizona Supreme Court: DUI Partition Ratios Evidence Admissible, Phoenix DUI Lawyer Blog, August 27, 2012

5th Amendment: Right to Remain Silent

The Law Office of James Novak Team — Mon, 06 Aug 2012 16:54:38 GMT

45 years after Miranda v. Arizona – Its impact on the US Criminal Justice System Over the last 45 years, legal controversies and challenges have continued to plague the “Miranda Rights”. Yet still it is recognized by all states in country. Following an arrest, the police must inform or warn a person of their “right to remain silent” and their right to defense counsel.

In Arizona the right to remain silent is afforded by both the United States Constitution and the Arizona Constitution. The right to remain silent is a privilege, because it enables a person to a avoid self-incrimination. Under the Fifth Amendment of the US Constitution a person shall not be compelled to be witness against themselves in their criminal case. When you hear someone say they are “pleading the 5th”, this is usually what they are referring to.

Article 2, Section 10 of the Arizona Constitution states that no person shall be compelled to testify or provide testimony, or statements against their own defense. The right to avoid self-incrimination existed long before the landmark case. But since the US Supreme Court ruling in favor or Ernesto Miranda, in Miranda v. Arizona in 1966 they have been referred to as “Miranda Rights or “Miranda Warning”. In this case, the defendant Ernesto Miranda made a confession, which led to a conviction based on his statements. Ernesto Miranda appealed the decision and prevailed in the US Supreme Court. His argument was that he had not been made aware of his right to remain silent during interrogation, or criminal defense attorney.

If a person is arrested for a DUI or crime, it is important that they invoke their rights. After an arrest and before any interrogation the police must read a suspect their Miranda Rights. Invoking one’s right to remain silent helps avoiding self-incriminating statements that can later be used against them. To invoke the right to remain silent one must verbally or in writing put police on notice that they wish to do so. If a person simply remains silent, they will be perceived by police as being uncooperative. It’s also important for a suspect to answer routine questions regarding identity and residency as well as the booking process.

Criminal Rights Attorney Chandler AZ

If you have been arrested, be sure you invoke your right to remain silent regarding the charges, until your defense attorney can be present, or has given you other instructions. If your rights have been violated, it may lead to dismissal of charges, other challenges or defenses in your case. You should always consult a criminal defense attorney if you face active charges to discuss your matter, and options for defense.

Additional Resource Links:

Arizona State Legislature – AZ Constitution

Miranda Rights Q. and A.

Justia Law Summary: Miranda v. Arizona 1966

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com