In criminal law, a felony case has as much in common with a misdemeanor case as a broken leg has in common with a deep bruise. Simply put, a felony case is a serious, possibly life-changing matter whose grave consequences cannot be ‘sugar coated.’ If convicted of a felony, a client might be turned down for future jobs, rejected by schools/universities/training programs (such as the Police Dept.) and even blocked from obtaining a ‘green card’ (permanent residency) or US citizenship for an indefinite number of years. Remember the following: the term felon carries an undeniable negative meaning in our society. By contrast, there is no such term for those persons convicted of a misdemeanor (or several misdemeanors).
Unlike a misdemeanor criminal case, a person charged with a felony (or more) has the chance to testify before the grand jury, but only if the client is 100% innocent of the felony charge and both the client and I believe that the client’s testimony will be convincing. As you know, many people are shy/not articulate. I can very quickly assess if my client will testify well before the grand jury, meaning that I have to decide for myself if the grand jury will find the client to be credible. I have noticed that some people who think that they are great speakers are, in reality, not very credible. But I’ve also noticed that some people who are shy and reserved (not to mention extremely nervous) are, in reality, very credible and trustworthy.
After I decide with my client to go ahead with grand jury testimony, I must prepare the client by practicing the client’s testimony over and over again. I have to find time to do this, even if I practice with my client after 5 PM or over the weekend. If the case has received media coverage and/or contains sensitive information (such as a case involving a minor, sex abuse allegations, other types of abuse, the stealing of a large amount of money, etc.), the District Attorney’s Office might be in a rush to present the case to the grand jury. In these situations, I have to notify the District Attorney’s Office immediately that my client intends to testify before the grand jury and then I have to start preparing my client to testify right away.
Keep in mind that if my client has been convicted of any crime in the past (including a misdemeanor), the client will probably be questioned about the prior conviction(s) during his/her grand jury testimony. If my client has a prior conviction, then I will practice with my client how he/she explains how the ‘prior(s)’ took place.
There must be at least 100 separate aspects of how to effectively deal with a felony criminal case, but of course I can’t go on and on. The following case studies, especially the first 2, will illustrate how I have helped prepare my clients to testify before the grand jury and ultimately, win their cases.
Obviously, not every felony case is an appropriate candidate for grand jury testimony, but I take great pride in helping an innocent person (charged with a crime that he/she did not commit) ultimately beat the felony charge(s). Keep in mind that some criminal defense attorneys will not take their clients’ cases to trial, even when the client adamantly protests his/her innocence again and again. If you hired this type of lawyer who refuses to believe your innocence and prepare you for grand jury testimony, my opinion is that you should drop that lawyer immediately, especially if your case has not yet been presented for grand jury action. In my experience, I have found that when the grand jury listens to the testimony of my client (who is innocent), many times the grand jury decides not to hand down an indictment on the felony charge(s). What often happens is that the entire criminal case is dismissed OR the felony charge(s) is reduced to a misdemeanor charge.
The cases summaries below are excellent examples of how my clients who testified before the grand jury ‘helped out their own cause.’ Then again, I had to describe to my clients how the grand jury procedure works, I advised them of the inherent risks, but I also encouraged them to speak the truth and not to be afraid of the grand jury. Remember that it is difficult enough to prepare a client for grand jury action under normal circumstances, but even more difficult when the client is in jail.
Obviously, a lawyer who does not have the experience or desire (or both) to take a criminal case to trial will not properly guide you to a successful performance, first before the grand jury and then (if necessary) at the trial.
My client, who was an immigrant, was charged with knowingly carrying a forged insurance card. It turned out that my client purchased this card from Pennsylvania. Prior to making the arrest, the police officer verified the card as a forgery. But since my client did not grow up in the US and had little formal education in his native country, he explained to me that he thought it was legal to buy an insurance card from the person who sold him the used car.
In case you are reading this and feel skeptical about what my client’s version of what happened, please take my word that I have represented immigrants that have not even completed a junior high school education. It is my job to decide whether my client is truthful or lying and I decided that this client was telling the truth.
Therefore, I knew right away that my client did not possess the required ‘criminal intent’ (called mens rea in criminal law) that the DA’s Office would have to prove in order to convict him of this felony charge. But instead of trying to push the District Attorney to reduce the felony to a misdemeanor charge (such as ‘possession of a forged instrument in the 3rd degree), I pushed them for a reduction down to ‘disorderly conduct,’ which is a violation and not even a crime.
Since I gain my clients’ trust very quickly, I obtained the name and address of the person in Pennsylvania who had sold the forged insurance card to my client. I then quickly forwarded this information to the local police precinct in Pennsylvania. I did this on my own without having to be prodded by the DA’s Office here on Long Island. Eventually, the felony charge was lowered to ‘disorderly conduct,’ which my client accepted. My client was sentenced to a simple fine, meaning there was no jail time, no probation, and no community service.
In June, 2007, my client, who was a 17 year old high school student at the time, was arrested and charged with ‘gang assault in the 1st degree,’ which is a ‘B felony.’ Apart from ‘A felonies’ such as murder in the 1st degree, kidnapping, being charged with a ‘B felony’ is about as bad as it gets. This case summary should make it clear that even if a client is arrested for a B felony, if the right lawyer gets hired by that client in time and prepares him in the right way, you can beat the charge(s) and vindicate yourself.
Although I already knew this client and his family, I did not learn of his arrest until Aug. 2007. By that time, he was in jail because of the extremely high bail. At the very next court appearance, I immediately ‘waived his case to the grand jury,’ exactly as I had done in the case in my summary above. But the great difficulty in getting this client prepared for his grand jury testimony was that since he was in jail, I had to drive to the jail each time in order to practice with him.
After 45 days had passed since I waived my client’s case to the grand jury, the District Attorney’s office had still not presented his case before a grand jury. Therefore, pursuant to the NY Criminal Procedure Law, an incarcerated client whose case has not been presented for grand jury action within 45 days must be released from prison. Since I knew this, I made the proper application to the judge, the District Attorney’s office did not oppose it, and my client was released from jail immediately. By then, it was Sept. 2007.
The mere fact that the District Attorney’s Office did not present my client the chance to testify before the grand jury until Jan. 2008 goes to prove how difficult it was to build a case against him. The DA’s Office had alleged that on the night in question, my client was running with a group of thugs who were chasing another man, whom they eventually caught and viciously beat up. The victim eventually died from his injuries. But meanwhile, my client told me that throughout the night in question, he had been with his girlfriend and was not hanging out with any of the other defendants.
When I went to meet with the Assistant DA and the Detective in charge of this case, they showed me a 5 page handwritten confession……….but without my client’s signature. My client later told me that he refused to sign it and the handwriting on the ‘confession’ was not even his. Basically, someone in the police department had written out the entire thing and tried to get my client to sign it. Needless to say, I asked for a copy of this unsigned written confession but I never got a copy.
Obviously, it is incredibly disappointing and ridiculous to learn that your client has been presented with a totally bogus ‘confession’ to sign.
Once my client began to testify before the grand jury, I could see that the Assistant DA who was asking the questions to him was very surprised at the contents of his testimony. I could easily tell that he had not heard my client’s version of where he was on the evening in question, even though I had already summed it up for this same Assistant DA. Once my client was finished testifying before the grand jury that day, the Assistant DA did not even allow the case to go any further. The members of the grand jury never got a chance to ask my client any questions. The Assistant DA simply dismissed the entire case against my client and that was it!
This is an example of an extremely, extremely satisfying victory that would never have taken place, assuming my client had hired some other lawyer that, for argument’s sake, might have repeatedly put pressure on him to plead guilty. This is exactly how many defense lawyers conduct themselves towards their clients. Months later, my client told me that one of the other co – defendants in the case was charged $25,000 by that lawyer, just to plead guilty! Meanwhile, I charged my client less than $7,500 to get him out of jail, prepare him for grand jury action, and ultimately help him vindicate himself and beat this case
In July, 2005, my client was arrested and charged with the following charges:
1) statutory rape in the 3rd degree (an ‘E’ felony);
2) criminal sexual act in the 3rd degree (also an ‘E’ felony);
When you read through this case summary, keep in mind the following: 1) my client was 25 years old at the time but the ‘victim’ was a 16 year old female in high school; 2) my client was here illegally in the United States. Yes, he did have an official status from Immigration called ‘Temporary Protected Status’ (shortened to ‘TPS’), but anyone with TPS can forfeit the protections afforded when that person is convicted of (not just arrested for) either 2 misdemeanors or at least 1 felony.
Here is a summary of the mind-boggling allegations in this case: my client was friends with the 16 yr old victim because they worked at the same company. One day the victim asked my client if she could borrow the reggae CD that he was listening to. My client lent the CD to her without thinking twice about it. The following day, when my client was scheduled to work (but the victim was off that day), she called my client and told him that she was done listening to the CD. She said it was okay to come by her house (which was on his way to work) to pick up the CD, which he did.
When my client arrived at the victim’s house and rang the bell, the victim opened the door. She told him to come in and my client, thinking nothing of it, went inside. My client did not see any adults when he went inside but did not think anything of this, since the victim had invited him inside. (My client was married, he had 2 children already, and was not interested romantically in this young woman.) The victim then asked my client to follow her upstairs to her bedroom, where the reggae CD was. My client, thinking nothing was wrong, followed her upstairs to her bedroom, then sat on her bed while she looked for the CD.
During both my client’s grand jury testimony in 2005 (and the trial itself in 2007), there was no testimony from either my client or the victim about them having a relationship prior to this incident or having sexual relations prior to the incident or having romantic/sexual contact at her house. It was apparent that they were nothing more than co-workers.
As my client sat on the bed waiting to get the CD back, the victim’s aunt (who testified before the grand jury and at the jury trial 2 years later) came storming into the bedroom. Upon seeing my client sitting on the girl’s bed, the aunt began screaming that he shouldn’t be in the house alone with the victim at all. The aunt made such a big commotion that my client quickly left the house, feeling confused and a little embarrassed (and without the CD). He had done nothing wrong at all (outside of perhaps not using the best judgment in going upstairs with the girl to her bedroom).
Here is the most shocking aspect of this case: after my client left the victim’s house, the victim wrote a suicide note, then tried to kill herself by slicing her wrist with a piece of glass. At trial it was revealed that the victim was bleeding so bad that she had to transported by helicopter to the Nassau County Medical Center. During the trial in 2007, it was revealed that the vaginal swab taken from the victim at the hospital did contain semen but most importantly, not sperm. The difference between ‘semen’ and ‘sperm’ was of vital importance during the trial.
About 1 month after my client was arrested, the same 16 yr old victim called the police to allege that my client had contacted her, thereby violating the Temporary Order of Protection that is always issued in these types of cases. My client was then hit with the additional charge of ‘criminal contempt in the 2rd degree’ (NY Penal Law Sec. 215.50),’ which is an A misdemeanor.
From the outset of the case, my client immediately began to proclaim his innocence to me. He said that he did not have rape the victim, did not try to rape the victim, did not have consensual sex with her, did not engage in oral sex to her, etc. My client said that he had absolutely no physical contact with her whatsoever when he went to her house. When the District Attorney’s office asked for a DNA sample (saliva) in order to corroborate his innocence, my client eagerly provided it without my having to ask him even a 2nd time.
Once my client provided the saliva sample, I was convinced of his innocence and lack of wrongdoing. This is the same confidence that any defense lawyer has to show in his/her client.
After a month, the District Attorney’s office told me that the DNA sample had come back ‘inconclusive.’ Once I heard this, I knew that they were lying and hiding the truth. How could a DNA sample that my client had willingly given have turned out to be ‘inconclusive’?
I then told the DA’s office that my client would testify before the grand jury and I began to practice his testimony with him. Keeping in mind that my client spoke only Spanish (and very little English), I always made sure that I practiced with him in the same manner that would take place when he appeared before the grand jury. Although I have been fluent in Spanish for over 20 yrs, I practiced his testimony by asking the practice questions in English, then I had someone translate the questions to him in Spanish. I did this with my client over and over until I was assured that he was ready to testify.
When a client testifies before the grand jury, the defense attorney is not allowed to engage to ask his/her own client any questions at all. It is an opportunity for the client to speak freely to the grand jury and unlike a trial, the members of the grand jury have the right to ask questions directly to the client!
After my client testified before the grand jury, they chose to not indict him on either of the original felony charge or the newer charge of ‘criminal contempt in the 2nd degree’ (for allegedly violating the Order of Protection). Instead, the grand jury directed the District Attorney office to charge my client with ‘endangering the welfare of a minor’ (an A misdemeanor), which is an incredibly vague and all-encompassing charge. (Even an adult who is arrested for DWI while a minor is in the car is often charged with ‘endangering the welfare of a child.’)
At this point in my client’s case, the only criminal charge that remained was ‘endangering the welfare of a child.’ Since this was a misdemeanor charge, the case was transferred to District Court and I began to prepare for the trial, which took place over 4 days in March, 2007.
Once the trial began, both the victim and her aunt (the same person who barged into the victim’s bedroom and began screaming for my client to leave) testified. But their testimonies absolutely contradicted each other. In fact, since my client needed a Spanish translator throughout the trial, the aunt answered my questions on cross – examination in such an amenable way that the Spanish translator told me later that the aunt, ‘was testifying as if the defense had called her and not the DA’s Office.’ Here is the important point: if you are an innocent person and insist upon taking the case to trial and prepare yourself with the right lawyer, the prosecution’s case will eventually begin to crumble. This is exactly what happened during this trial.
Since my client was innocent, he testified in his own defense. At that point, I had practiced his testimony with him well over ten (10) times. After closing arguments took place on the last day, it was close to noontime, so the judge excused everyone for lunch, then told the jurors to begin deliberating when they came back.
While a jury deliberates, the client (the defendant), his attorney and the Assistant DA cannot disappear – they must stay in the courthouse to wait for the verdict. After the lunch break, I decided to buy a few Lottery scratch-off tickets and a newspaper to kill the time. I came back to the courthouse shortly after 2:00 PM and I began to read the newspaper. I was completely exhausted from this trial.
But before I read even 2 pages, the court officer came out to say that the jury had reached a verdict. Hearing this made me very anxious because it is said that the longer a jury deliberates, the more it shows that they have ‘reasonable doubt’ and are struggling to reach a verdict. Consequently, the faster a jury reaches a verdict in a criminal case, the more likely it is that they have decided that the client – the defendant – is guilty.
As the jurors came back into the courtroom one by one, the judge was handed a slip with the jury’s verdict. What I will never forget is once the judge read the slip of paper, she immediately rolled her eyes and acted very shocked. Months later, this same judge referred to my performance in this case and the overall outcome as a ‘miracle.’
The verdict in this case was ‘not guilty’ and just as an innocent person would do, my client did not jump up and scream, start crying, etc. He just sat there, pretty much emotionless, and I eventually gave him a hug. It took this jury less than 1 hour – it was probably no more than 20 minutes – to decide unanimously that my client was not guilty.
For any innocent person who is involved in a criminal case (or who knows of someone who has been falsely accused of a crime), this is the exact outcome that your criminal defense lawyer should be preparing you for and obtaining for you.