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*Police Investigation
*The Prosecutor
*The Trial
*The Appeal
*Post Conviction Writs

 

As the criminal law becomes more technical, wide-ranging and complex, more and more people are finding themselves in the criminal justice system. This is particularly true in the federal courts, where sometimes a person at the wrong end of a business deal gone bad may find himself indicted for a white collar offense such as mail fraud.

Ordinarily, the life span of a criminal case includes the following steps:


Police Investigation

At the state level, the police will either receive a complaint or witness an alleged offense and make an arrest. The initial report by a police officer may then go to a detective, as usually happens in more serious state felony offenses. In the case of misdemeanors, such as DWI, there is no investigation to speak of after the initial police-citizen contact. Usually at the state level, the investigation will be conducted solely by the police and be more or less complete when the police hand the file to the district attorney for prosecution.

In the federal system, the investigations are conducted by any of the several federal law enforcement agencies such as the FBI, ATF, DEA, or Postal Inspector. There are also investigative sections in other agencies that are not primarily designed for law enforcement investigation such as the USDA (United States Department of Agriculture) and the FAA (Federal Aviation Administration). Unlike the state system, where the police will often do the entire investigation and then hand the case off to a district attorney, a federal investigation will often be overseen by an Assistant United States Attorney virtually from the start. These investigations also tend to be much longer and more thorough than those done at the state level.

In either system, if you are under investigation a detective or other law enforcement officer may call you wanting to "get your side of the story."  You should NEVER speak to someone in law enforcement before you consult an attorney.  Having an attorney is your right.  Don't worry about "looking guilty." A law enforcement officer investigating you is not your friend.  Going it alone could have a devastating effect on your case.


The Prosecutor

For the most part, prosecutors at the state level are district attorneys and county attorneys and federal prosecutors are United States Attorneys.

When a state police officer files a case, what he does is simply puts it in the hands of a district or county attorney. Misdemeanors then go directly to a court. Felonies must be indicted, which means that they must go to a grand jury. If the grand jury chooses to indict the case, then the case is assigned to a district court. At the state level, a person may be arrested either when (or before) charges are filed (such is the usual case in Tarrant County), or once they are indicted (which is the practice of many of the less urban counties).

At the federal level, the same Assistant United States Attorney who has overseen the investigation will take the case before a grand jury. In the federal system, as with the state, a person may be arrested either before or after indictment, depending on the circumstances and the type of criminal offense. Oftentimes the indictment is sealed (not accessible to the public) until the arrest is made.

Corporations may also be indicted at both the state and federal level for a number of offenses. In “white collar” cases (most commonly some form of alleged fraud), it is not unusual to see both the corporation and several of its officers or high ranking employees in the same indictment. Those cases are often quite complex and require each person and the corporation to have separate, highly competent counsel.


The Trial

Once on the court's docket, the case can only go one of three ways: trial, guilty plea, and, sometimes, a dismissal. Whether at the state or federal level, one can expect the prosecutor to do his or her utmost to win his case. Oftentimes, most of the prosecutor's witnesses will be connected with law enforcement and well practiced at testifying in front of a jury. It is essential that the criminal defense attorney spend whatever time it takes to prepare for trial. There will usually be some flaws in the prosecution's case, but finding them takes investigation, preparation and creativity.

Even where a guilty plea results, the need for preparation cannot be overstated. Usually the most advantageous plea agreement can only be achieved when the prosecutor knows you are very serious about trying the case.


The Appeal

Either the person charged with an offense or, in limited instances, the government may appeal an adverse ruling or verdict. The appeal is taken first to the court of appeals. The party that does not prevail at that level can then take the case to the next level. In Texas, the highest state criminal appellate court is the Texas Court of Criminal Appeals. In all cases the highest appellate court in the nation is the United States Supreme Court.

An appeal is not a re-trial of the case. In an appeal, usually a complaint is made to the court of appeals that the trial judge made mistakes. The appeal is based on the record at trial and the briefs of the parties. Preparing a compelling appellate brief requires an intimate familiarity with the law and a lot of creativity on the part of the lawyer. It also takes a lot of time.


Post-Conviction Writs

The Writ of Habeas Corpus is the remedy of last resort. It is limited to raising violations of a person's constitutional rights. Generally seen in writs are complaints regarding deficient performance of trial or appellate counsel, violations of due process, or allegations of serious police or prosecutor misconduct. Writs generally require a whole new round of investigation, since the nature of most complaints was that these violations were not discovered during the trial or appeal processes.

Each of these stages presents opportunities for the criminal defense lawyer and his client. The goal is to get the client out of the criminal justice system as quickly as possible with the best possible result. This means that the attorney must work the system and cannot simply react to it. The lawyer should, where possible, deal with police detectives before charges are brought in an attempt to head off a criminal case. Sometimes the lawyer may also prepare a case to present to the grand jury with the goal of avoiding an indictment. Once a case is filed, the attorney should always be thinking of a way to creatively dispose of a case where a dismissal or reduced charge is possible. And where a trial or appeal is necessary - investigate, prepare and fight.

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