Category Archives: Criminal Law

Criminal Law

Jury Selection

Leave a comment

Criminal Law – Jury Selection

 

“Trying a case is the most fun you can have with your clothes on.” – Henry Lagman

 

In every case the parties to a trial of the case have the right to select a fair and impartial group of citizens dear the controversy brought to court. This occurs in civil cases and criminal cases. The seriousness of being involved in an important matter is not mean that you or your attorney should not understand the process. I believe that jury selection is a tool that is overlooked and sometimes misunderstood. Likewise there are many approaches to jury selection in the conventional trial in criminal court each side is entitled to an even number of jury strikes or excuses. The number of strikes or excuses is based on how many much people must be eliminated to finally have 12 people who are willing to serve on a jury. The defendant therefore is entitled to the same number of strikes is the prosecution. But what does that gets you? Do you and your lawyer understand the biased and prejudices of those who are sworn to hear the case fairly? Let’s face it, we all have prejudices but what about the ones you don’t know about?

 

What do you make of an attorney that can excuse 56 of 58 jurors on a jury panel the calls of “prejudice” with one question?

 

In Alabama courtroom in a criminal trial I succeeded in eliminating 56 and 58 jurors. This was done in a packed courtroom with the jury box of attorneys who are watching the jury selection as they waited on the judge to take up their separate motions. They were mostly asleep as jury selection for an attorney can be almost routine. The judge thought jury selection would take place as it always did he could swear them in and dismissed them for lunch. As the judge presided in the Lars watch the proceedings with halfhearted interest I had my turn at the jury. The DA had asked five or six questions and waved the proceedings over. I asked one question, identified the entire panel is being prejudiced and then made a motion to strike the ENTIRE panel except for two jurors. The judge was stunned! Yet, he was compelled to agree with me. He stated “Esther Lagman we can try case with only two jurors!” Nevertheless, Mr. Lagman insisted that the jury be dismissed. On the record, and forced to agree the judge ordered the panel to go home.

 

The next month I was required to strike another jury in the same case before the same judge. This time out 36 jurors after a day of examination I excuse nine for prejudice. This left only 27 jurors to arrive at a jury of 12 I’ve been used by next regular excuses to arrive at a jury of 12. I had even the score so much that in the middle of the trial after I had made a motion to suppress evidence Dist. Atty. leaned over to me at a break and said, if your client will pay the court costs we will dismiss the case.” And so it was dismissed a victory for the defendant!

 

The importance of jury selection cannot be overrated. The defendant is not have to accept the jury which the state gives him and is drawn at random. You should give this equal fault when you seek to be excused from jury duty the next time you’re called it is the duty of every citizen to step forward one called if you don’t step forward, then who will step forward for you when you are before the judge and your future hangs in the balance?

If a lawyer thinking about hiring does not have trial experience can you really expect a good outcome? In selecting your jury to entrust your case does that jury have the ability to do that? Moreover that he had the courage and tenacious is to challenge the judge and the “excepted thinking” of how to try the case?

 

Only you can make those determinations – – – –

 

Not every case should be tried, but as I like to say, “trying a case is the most fun you can have with your clothes on.” The reason that I like to say it, is that for me it is true.

Criminal Law

Criminal Law – Drug Possession

Leave a comment

Criminal Law – Drug Possession

 

Possession of controlled substance is a serious offense in Alabama. Jail time can be a real possibility. Further it can result in the suspension of your driver’s license, and a conviction which will follow you the rest of your life. It will often disqualify you from the employment you want. The resulting consequences far beyond going to jail or paying a fine.

 

Often a conviction will turn on identification. Drug arrest maternal confidential informant it may be protected by the police. There are questions which must be raised by your attorney. Does the confidential informant have a record? Is he reliable? These are important questions which need to be answered before the state can impose guilt.

 

Another area is the chain of custody of the evidence. Recently in another state there was a wholesale dismissal of criminal cases because the crime lab was not confident in their test results were bad. Your attorney is the one who should attack the evidence.

Another favorite tactic of the police is to arrest everyone present in a drug crime. This means everyone in the car, room or house. The police like to arrest everyone and sorted out later. But does this mean the you are guilty of possession just because you’re in the same car what if you don’t know if someone else’s “holding”. You or your loved ones may be guilty of having a poor choice of friends, but does that mean that they should be convicted of a drug crime, be given a criminal record and barred from future possible employment?

If you’re on probation for other crimes a second arrest and conviction can loom even larger. You don’t have to be alone! A conviction for the second offense will cause a revocation of probation and the defendant will “have to take” the first sentence. This means that the sentences can be run consecutive or “one after the other.” The state in effects stacks the sentences.

 

Drug court is also a consideration. Don’t get me wrong, drug court can be a solution for the disposition of a charge and can be a valid recommendation. But drug court is not “a picnic” and should not be entered into without good legal advice and investigation of every possible resolution including a trial on the merits of the case. (It is also very expensive.) Before you go there you need to have your case evaluated.

 

Many people believe that they can negotiate this difficult area the law without an attorney. They believe that they will not pay the full consequences of possession. Before you make an appearance in any court make sure that you have talked with an attorney and that he has the skill and experience in handling these types of cases. Don’t count on a court appointed attorney or public defender who is usually overworked and handles or his caseload with less than special attention. You can expect more from a private attorney he selects his cases and has more time for the “details.” I can think of no other place that this is really “you get what you pay for.”

 

Be aware of the attorney that is cheaper than all others. If he is cheaper than all others, is he really going to do the work? He may be cheaper only because he is not going to do the work. Regretfully, there are attorneys out there who will only put their name on a case and not really do work. Watch out for those guys.

 

Going Out Of State

 

I’ve handle drug cases in Florida, Georgia and Texas the signs a regular practice of those kinds of cases in Alabama. After 35 years of practice, experience knows no boundaries. If you have a case out of state asked me how that is done. Perhaps an out-of-state attorney may be more effective than the average local counsel that is not to say there aren’t good local attorneys everywhere. The people have sought me out specifically to ask me to defend drug cases out-of-state.

 

Would you hire an attorney to represent your son out of state for one day? I was flown by my clients father to Texas to represent the son in a drug case. I arrived, disposed of the case in two hours and was back on the plane in time for supper and to sleep in my own bed. This was an extraordinary case but it underlines the conference my clients place in me.

 

Call me to discuss your special circumstances.

 

This is the “skinny” on drug possession under Alabama law:

 

Code of Alabama, 1975 section 20 – 2 – 1 through 20 – 2 – 93

Prohibited Acts As a Class a Felony

 

Except as authorized by chapter 2 title 20 of the Alabama code a person who possesses, sales, spices, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of prescription or written order or by the concealment of material fact or uses a false name or gives a false address controlled substances as enumerated in schedules I, II, III, IV, V, is guilty of a felony.

Upon conviction a person may be imprisoned for not less than two nor more than 15 years and in addition may be fined not more than $25,000 provided that any person who possesses marijuana for his personal use only is guilty of a misdemeanor and upon conviction for the offense shall be imprisoned in the county jail for not more than one year, and in addition shall be fined not more than $1000 for the first offense. In addition any person who violates this section with respect to a counterfeit substance enumerated in schedules 135 is guilty of a felony and upon conviction for the first offense may be imprisoned for not less than two nor more than 15 years and may be fined not more than $25,000.

 

Under the Code of Alabama 20 – 2 – 71 of the Alabama Code…

Prohibited Acts As a Class B Felony

 

“It is unlawful for any person:

“(1) who is subject to section 20 – 2 – 50 of The Alabama Code to distribute or dispense a controlled substance in violation of section 20 – 2 – 58.

(2) who is a registrant to manufacture a controlled substance not authorized by his registration or to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person;

(3) to refuse or fail to make, keeper furnish any record, notification, order form, statement, invoice or other information required under this chapter; provided, however, that upon the first conviction of a violation under this provision said violator shall be guilty of a misdemeanor and shall be assessed a penalty of $1000. Subsequent conviction shall subject the violator to all of the provisions set forth under the classification below;

(4) to refuse entry into any premises for inspection authorized by this chapter; or

(5) knowingly to keep or maintain any store, shop, warehouse, dwelling, billing, vehicle, boat, aircraft or other structure replace which is resorted to by persons using controlled substances in violation of this chapter for purposes of using substances or which is used for keeping reselling them in violation of section 20 – 2 – 1 through 20 – 2 – 93 of the Alabama Code.

 

Upon conviction such person may be imprisoned for not less than two and more than 15 years and in addition may be fined not more than $25,000.

 

Under section 20 – 2 – 72 of the Alabama code.

Prohibited Acts As a Class C Felony

 

Is unlawful for any person:

(1) to distribute as a registrant a controlled substance classified in schedules one or two, except pursuant to an order form as required by section 20 – 2 – 57.;

(2) to use in the course of the manufacture distribution of a controlled substance and registration number which is fictitious, revoked, suspended or issued to another person;

(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, the substance or for subterfuge;

(4) to furnish false or fraudulent material information in order to mid any material information from any application, report or other document required to be kept or filed under this chapter or in any record or per to be kept by this chapter; or

(5) to make, distribute or possess any punch, die, Blake, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container are labeling thereof so as to render the drug a counterfeit substance.

Upon conviction such person may be imprisoned for not less than two or more than 15 years and in addition may be fined not more than $25,000.

 

This is the law but you need to know you’re not alone!