Statue of limitations – So long ago, but charging me now

Statue of limitations

Statue of limitations are the time required to bring charges or “commence the prosecution.”  The criminal prosecutor must bring charges within that time limit. If they try, any competent attorney should be able to help get the case dismissed. On the other hand, for the government to satisfy this requirement, the government must “commence a prosecution” within the time limit. Commencing the prosecution is usually as simple as law enforcement or the prosecutors getting the court to issue a warrant.

Statue of limitations in Kentucky

MISDEMEANORS. In Kentucky, for misdemeanors, the warrant must be issued within one calendar year of the alleged offense. If the warrant was issued one year of the offense 17 years ago, that it would be a valid warrant, and the statue limitations would not apply. The governing statute is “§ 500.050. Time limitations.”

FELONIES: In Kentucky, no statute of limitations exists for felonies, so a new charge today from twenty years ago is valid under the Statue of limitations for criminal charges. However, in such a case, other procedural defenses might be available, such as a Due Process violation, but speak to a lawyer to help you with any felony charge.

Statue of limitations in Colorado

In Colorado, a statute of limitation exist for every crime, based on the classification of the offense. This is governed by CRS 16-5-401. To summarize this statute: one year for traffic offenses, 18 months for misdemeanors, three years for most felonies, five years for “Vehicular homicide and leaving the scene of an accident that resulted in the death of a person,” and no limit on the most serious of felonies.

Practical Defenses when Statutes of limitations are at play

When the offense happened so long ago, many cases fall apart because of the lack of memory on the part of the witnesses. As such, you should probably talk to an attorney to go over the discovery in your case. And do an investigation to see if the witnesses are still around and still remember anything.

A statute of limitations on criminal charges is meant to prevent old, stale cases from haunting a defendant. Memory and age of the case always effects the outcome. Generally speaking, the worse the memories of the witnesses, the better the outcome.

Lower Bond or Higher Bond? Learn How Bond Works

Get a Lower Bond: How Bond Works

Bond has two purposes: (1) ensures a defendant’s return to court and (2) ensures the person will not re-offend while awaiting trial. A lower bond shows a low risk of both of these factors. To get a lower bond, especially at a bond hearing, you will need a lawyer to present evidence to the judge which will allow him/her to assess a defendant as a low risk.

Mark S. Solomon
Mr. Solomon has worked many, many bond issues at both the trial and appeal level.

How much is my bond? Why is my bond so high?

A judge weighs many things when determining bond, such as the nature of the offense charges, the person’s criminal history, ties to the community, etc. A higher bond shows a higher risk of failing to appear at future court dates or reoffending (danger to the community). A lower bond shows a lower risk.

How do I get a lower bond?

If a judge gives a person a lower bond, he must have a good reason. To get your bond lowered, you need to convince the judge that you are likely to show up at all your court appearances, that not likely to flee, and that you are not a risk of re-offending while on bond. If your new offense happened while on probation or parole, a judge will probably not be receptive to hear arguments that you are not likely to re-offend, because the case before him/her was while you were under court orders not to commit new offenses already. Talk to a lawyer to see how to find good things in your life which will allow a judge to give a lower bond, to release you with confidence that he will not be in the news for allowing a dangerous person to run free among law-abiding people.

To get a lower bond, get a lawyer! You can have a bond hearing to ask the court for a lower bond.

What is a PR bond?

A personal recognizance  bond (PR Bond) is a lower bond. This is where the defendant signs his name promising to appear in court.

What is an unsecured bond?

An unsecured bond is a lower bond. This is where a judge assess a bond, but does not require the defendant to pay it to be released. However, if the defendant fails to appear to future court dates or commits new offenses, his next bond will not be a lower bond, it will be a higher bond or no bond.

How does bond work? How do bondsmen work?

After the judge sets a bond, someone has to pay the bond to the court before the defendant can be released. In Colorado, a person can contract with a bondsmen who pays the bond for a fee. The bondsman will typically expect to be paid approximately 10% of the bond, and will keep this as his fee. He will also require a co-signor who guarantees the rest of the bond if the defendant fails to appear to court and the court orders that the bond posted is forfeited. The bondsman’s business is ensuring that he is not the party who loses if the defendant flees. As such, if a defendant flees, the bondsman has two options: (1) send a bounty hunter to find the fleeing defendant and return them to the custody of the court to avoid a bond  forfeiture, or (2) collect the forfeited bond from the co-signor by attaching their collateral (car, house, watch, etc.).

What is a surety?

A surety is where one person pays a bond for the defendant. Why would a judge disallow surety? If the judge deems the person as a high risk to fail to return to court, or a danger to the community, the judge might also believe that the defendant would not care if the surety’s money is forfeited. The judge might believe that the defendant values his/her freedom over the surety’s money.

What About When the Judge Says “No bond”

If the judge says “no bond” then no amount of money or assurances makes the judge feel one or both of those bond objectives is possible, or that the defendant is too risky for either or both to be given a bond.  In short, the defendant is stuck until the judge allows bond. An attorney can help with this through negotiating with the government and reaching an agreement.

What about parole holds?

When a person is on parole and probable cause exists for a revocation, the parole officer (PO) can either arrest the person or issue them a summons to appear at a revocation hearing. Most of the times, the PO does not issue summons, but, rather, arrests them and holds them for a parole revocation hearing.

So, while the parole officer/parole board has the discretion to release a person accused of a parole violation on a summons (like a PR bond), they usually do not do this.

Remember that bond has two purposes: (1) make sure the person comes back to court and (2) does not reoffend while waiting to resolve the case.

If the defendant is facing a new charge, then a conviction for a new offense is almost always grounds to revoke a parole. If that’s the case, the defendant is alleged to have committed a new offense while on supervised release. Generally, this is not an easy case to try to get someone released when evidence exists of their reoffending while on supervised release: parole.

To have any hope of a defendant’s release in this situation, get a lawyer and talk to them about the specifics of the situation.

Federal Sentencing Basics: Offense Level and Criminal History

If you have been charged with a federal offense, you need a criminal defense attorney who understands the federal sentencing guidelines. These guidelines will determine how the sentencing judge will determine punishment. To the unacquainted, these guidelines can seem challenging, but because they have been around since the mid 1980’s, much has been published to explain their apparent mystery, and most judges have long since accepted the transparency and general uniformity that these guidelines provide.

The guidelines focal point, showing the sentencing ranges is the Sentencing Table. This Sentencing Table works on two axis: offense level on the vertical side, and criminal history on the horizontal.

View the 2012 Federal Sentencing Guideline Table on the the U.S. Sentencing Commission web site.

Offense level: Each federal offense’s statute is mapped to a guideline’s base offense level. Other specific facts agreed that occurred in the offense being sentenced will dictate changes, either up or down in that base offense level. For example, if the offense is robbery, bodily injury will increase the offense level, as will theft of a large amount of money, called “amount of loss” by the guidelines. If more than one person is involved in the offense charged, this offense level will also be affected by the defendant’s role in the crime: the offense level will decrease if a “mitigating role” and increase if the defendant is in an “aggravating role,” such as a ringleader. Also, the role of the victim affects the offense level: being hate crime motivated, victim restrained, to a victim of terrorism. Specific guideline application notes exist for each offense, as well.

Criminal History:The defendant’s criminal history plays a major role in sentence determination. For example, a first time offender for an offense getting a sentencing range of 0-6 months, and one with an extensive criminal history getting a range of 18-24 months. This difference in criminal history makes a difference in four times the maximum sentence.

This history score is determined by prior convictions and sentences which go back as many as 15 years for most offenses which are not excluded by law, and can even encompass juvenile convictions under some circumstances, especially if convicted in adult court. Each qualifying conviction will earn the defendant at least one point, and these one point convictions are capped at a maximum of four points. A conviction where the defendant received a sentence of over 60 days incarceration will earn two points. Finally, a felony conviction with a sentence imposed of over 13 months, can earn three points. These conviction points are totaled and converted to one of the six criminal history categories.

While a defendant cannot do anything to change his/her criminal history, a competent defense attorney can scrutinize and challenge these convictions to ensure they accurately reflect the facts of the convictions that the federal probation officer found during his pre-sentence investigation. The prosecutor must be able to prove these facts in criminal history. A good criminal defense attorney knows how to potentially lower a federal sentence by working all aspects of a case, and being able to hold a federal prosecutor to his burden of proving what he/she must be able to prove.

Don’t Get Prosecuted for using Self-Defense: Protecting Yourself After Its Over

Don’t Get Prosecuted for using Self-Defense: Protecting Yourself After Its Over

Self defense is a scary thing. Thankfully, using physical force against another human being is something most people will never know. Some people will either put themselves in the position of having to use physical force against another person, or be thrust into the position of defending themselves against their choice. Still another group of people will, either through hesitation or conscious choice, do nothing and become victims. All of these groups can face an uphill battle if they handle the aftermath of their choices poorly.

First, we will focus on those who use force in self-defense, force against another person to protect themselves. These people can easily be seen as the perpetrators of a crime. Even if their acts are lawful. Any statements made to police in the heat of the immediate aftermath is likely to be a problem for you later. Small inconsistencies, incorrect memories, emotion, and unnecessary information cloud your statement to police and make defending you more difficult later. A better idea is this: don’t make a statement to police until you consult with a self-defense lawyer. If you can, get a card from a good self-defense lawyer and keep it handy to show the police. Police officers routinely wait to make statements of their own use of force until they have calmed down and thought about what happened. You do the same thing.

When calling the police or 911, they will be recording the call. Tell them that you need them respond because “there has been a shooting and it’s all over” or “someone tried to break into my house” – only report the bare facts as to why the police need to respond. Do not answer any questions as to what you did; not to the 911 operator over the phone before you’ve spoken to your lawyer. To repeat that: Don’t tell the 911 operator anything you did, only what the situation is about.

Next, do not alter the scene at all. Do not move things, clean things, remove things, etc. Anything you do to alter the scene of events can be viewed as tampering with evidence. If you decline to make a statement, police might want to look closer at the scene to see if you are being deceptive in any way. Don’t be deceptive in any way! Just remain silent.

Lastly, have a relationship with a lawyer who can respond to the scene and deal with the situation for you. Have you ever made a statement to the press? Handled police interrogators? Had crime scene investigators invading your home? Most people have not experienced any of these things.

A good criminal defense attorney specializing in self-defense will want to come out at 3am to manage your situation from the beginning. Call 911 to get the police on their way, then your attorney to get him/her there, too.

Internet luring cases & police stings

Man suspected of internet luring arrested in Co

Police arrested a man with a Ph.D. in Colorado on charges of Internet luring for arranging a meeting with a woman and her child, according to this article in an MIT journal.

“Internet luring” is a crime.  The crime is when you induce a child, or in this case a mother and her child, to go someplace with the intent of illegal sexual activity. Often, the suspect is not communicating over chat or email with a child at all, but, rather, a police officer.

The fact that a child was never involved is irrelevant because the intent to commit the crime is enough to charge an “attempt” at the crime, which is often as serious, or almost as serious as the crime itself.  This makes sense, as in a case when the police catch a bank robber before he goes into the bank, his crime is not complete, but he did attempt it, and was very close to committing the crime itself. In an Internet luring case, the police will substitute a young looking adult, or more common, the adult police officer uses a photo of themselves as a child, referring to it in emails and Internet chats.

In an Internet luring case, much of the evidence is circumstantial.  An “IP address” is the network location of a computer on the Internet, and each subscriber is assigned an IP address.  Without too much discussion as to the particulars of this and other Internet networking essentials, suffice to say that a computer is generally traceable on the Internet.  The government has all the logs and communications between the computers showing, usually, very racy, and sometimes extremely explicit communications.  These communications and their content are the heart of proving the intent element of the crime: intent to engage in illegal sexual activity.

Understanding the concept of how the government must prove intent is the biggest challenge for a defendant.  The government is not using these communications to inflame the jury, at least not overtly.  The government may want their case against the defendant to look good, and by making the defendant an unsympathetic person through the use of these sexual communications certainly performs that role.  However, even if a sympathetic prosecutor wanted to leave these communications out, he cannot, because he needs to prove the defendant’s intent.  Without a confession (a statement to anyone regarding his intent), he needs to use this damning evidence against the defendant.  Keep in mind that most prosecutors are not sympathetic at all to such a defendant.

There are ways to win a computer sex case, and it all revolves around the facts of each individual case, even if the evidence seems damning.

Does the public and members of the courts believe that such defendants should be on bond? The judge in Mr. Segal’s case did not. The MIT article reported that “Segal was denied bail and remanded to the custody of the U.S. Marshal, with the court determining that he was a flight risk and that ‘there are no conditions of release that can be imposed, which would assure [Segal’s] continued appearance before the court.'”

Introduction to reasons police may enter and search your home

Introduction to reasons police may enter and search your home

When police enter and search your home, they need a reason. Many reasons will work for them to be legally in your home. This article will attempt to cover those reasons, so if you want to keep police out of your home, you have a chance.

The first and most all-encompassing way police may enter your home is when you allow them. This is called consent. It must be knowing consent by someone with the apparent authority to allow them to enter. This means that if your girlfriend is visiting for an hour, answers the door for police, and gives them permission to enter and search, the police would reasonably beleive she had the authority to let them in and search. If you are home with your wife, with whom you live, and she allows the police to enter and search, but you tell them to get out, the police may search areas where she has access and control. In that case, they may not search areas of the house where you have kept your wife out: where she has no access, like a safe or locked room. When a defense attorney reads a police report and sees that the suspect gave permission to search them, their belongings, or their home, while its possible to challenge the voluntariness of such a consent, the defense attorney knows this is an uphill battle.

When police are chasing a suspect, they need not stop because the suspect enters a house. They may continue the pursuit into a house. Once inside the house, anything they see in plain view is fair game as evidence. So, if the police chase a bank robber into your home and see you sitting on the couch in possession of drugs, they are legal to arrest you.

If the police have reason to believe that a suspect is destroying evidence inside a home, they may enter to secure the evidence. Recently, in the Kentucky v. King case (2011), the US Supreme Court held that when police knock on a door and announce themselves as police, and hear movement inside that they police can reasonably link to the possibility of destruction of evidence, they may forcibly enter to secure the evidence.

Police may search the home of the person named in an arrest warrant. They may also search the address of anyplace where the person named in the warrant listed as their home with probation and parole, or possibly even addresses they listed in prior arrests. If you keep that list of addresses short, police have less right to search homes of your family looking for you. Remember, on these searches, anything they find in plain view is legal to arrest the people they have probable cause to believe were involved with contraband or evidence they legally find.

If police have a search warrant with your home’s address on it, be cooperative. If your defense attorney can challenge the warrant or affidavit, he will. If you get a new charge of obstructing justice, disorderly conduct, or assault on police while having the warrant served and your home searched, the police, prosecutor, and judge will not be as receptive to an attack on the warrant.

Because the police have a job to protect people from dangerous situations, and render aid, if police see a situation about a home that makes them think someone might need help, they may enter a home to see if someone is hurt or needs help. These cases often revolve around police seeing broken windows, blood drops/splatter, and people looking unconscious in view from a window. If police see this type of situation, they may enter to render aid.

To keep police from being able to enter your home, it’s important to keep your home in a condition that looks normal. To ensure that people visiting know to refuse consent to search because, “it’s not their home.” To refuse consent to search to police yourself. Police can and will lie to get consent. This is legal. A police officer can say that the victim only wants their property back, and they will be happy. When you return the stolen x-box which was taken from a house, the police will then arrest you for burglary because that is what will make him happy: closing a felony case, and all he had to do was legally lie to a suspect to get consent.

If you do nothing wrong, and police wrongfully enter your home, you may have a good case to litigate the suppression of evidence: to keep evidence that the police illegally obtained from being used against you. This is where a good criminal defense attorney can work for you.

Preliminary Hearings in Kentucky

Question: When a person is arrested for a felony in Kentucky, how long until he can get out of jail?  Also, is this an important part of the case where he should have a criminal defense attorney?

Answer: When a defendant is arrested in Kentucky on a felony warrant, the government can do the initial arraignment within a week or so. At this initial arraignment in District court (misdemeanor court), the judge will let the defendant know the charges and, if he qualifies for the public defender, appoint the department of public advocacy, or allow time to hire private counsel. The judge will also set a date for a “preliminary hearing” which must occur within 10 days of arraignment. At the prelim, the government would need to show probable cause for the charges to detain the defendant while the government seeks an indictment with the grand jury. they will have 60 days after the prelim to do that. Lastly, at the prelim, the judge will set a bond. Often, the government will make a deal to skip the hearing for a reduced bond.

Many things can happen at that preliminary hearing, but statistically, defendants without a lawyer don’t do as well at getting a bond they can afford as with a lawyer.

Because of that, and because Kentucky does not have or allow bail bondsmen, the preliminary hearing is extremely important because what the judge sets as bond may keep your son in jail for another 60 days until the next real chance to get out.

Get him a lawyer, even if just for the prelim.Many things can happen at that preliminary hearing, but statistically, defendants without a lawyer don’t do as well at getting a bond they can afford as with a lawyer.

Because of that, and because Kentucky does not have or allow bail bondsmen, the preliminary hearing is extremely important because what the judge sets as bond may keep your son in jail for another 60 days until the next real chance to get out.

Get him a lawyer, even if just for the preliminary hearing.

Colorado Revisits Law That Gives Prosecutors Wide Power to Try Youths as Adults

This March 26, 2012, New York Times article reports that “It was called the summer of violence: a rash of crime that swept through Denver in 1993 and prompted state lawmakers to pass tough legislation intended to crack down on juvenile offenders. Nearly 20 years later, Colorado is revisiting a law that gives prosecutors the power to charge youths as adults in serious crimes without first getting approval from a judge.”

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