Trayvon Martin Update: No Grand Jury

Several news outlets have reported that a special prosecutor has decided not to convene a grand jury to review the Trayvon Martin case. As I previously posted, Trayvon Martin was allegedly shot and killed by George Zimmerman in late February.

In Florida, a grand jury is only necessary in "capital cases," meaning cases where the State will ask for the death penalty. Prosecutors also sometimes use grand juries in cases where the decision to prosecute will be controversial. By using a grand jury, the prosecuting attorney can later say that it was the grand jury's decision to prosecute and the prosecutor was just carrying out their decision.

So, the decision by the special prosecutor to not empanel a grand jury does not mean that George Zimmerman won't ever be charged with a crime. It just means that the State of Florida won't seek the death penalty. They could still file charges without a grand jury indictment that asks for something less than the death penalty.

Utah's system is similar to Florida's. Most cases are filed without an indictment from a grand jury. Instead, an Information is filed by the prosecutor that lists the charges.

In federal court, the 5th Amendment to the United States Constitution requires a grand jury indictment before a person can be charged with "a capital, or otherwise infamous crime." That generally means that all felony charges have to be approved by a grand jury. The right to a grand jury indictment is one of the few parts of the Bill of Rights that the Supreme Court has not imposed on the States. In other words, the Constitution requires federal prosecutors to use grand juries, but it does not require State prosecutors to use them.

Indictments are required in federal cases because the founders didn't want prosecutors to have too much power. They wanted a jury of the accused's peers to decide whether there was enough evidence to justify filing criminal charges. This makes sense because even if a person wins their trial, the process of hiring a criminal defense lawyer, investigating and preparing a defense, and going to court can be expensive. Also, the stigma that goes with being charged with a crime is not usually taken away even if a person is found not-guilty at trial.

Practically, though, the grand jury system provides little protection to criminal defendants because grand juries almost always return the indictment that the prosecutor asks for. It has been repeated thousands of times that a prosecutor could probably "indict a ham sandwich" if he wanted to, although no one has tried as far as I know.

Could the Trayvon Martin case happen in Utah?

Trayvon Martin was shot and killed by a neighborhood watch coordinator named George Zimmerman on February 26, 2012. Trayvon was an unarmed, 17-year old African-American boy. So far, no charges have been filed against George Zimmerman because he claims he was acting in self defense.


Florida has a unique self defense law called a "Stand Your Ground" law. The Florida law, in contrast to other more traditional self-defense laws, states that "a person does not have a duty to retreat" before using deadly force in self defense.


Utah's self defense law similarly states that "A person does not have a duty to retreat from the force or threatened force . . . in a place where that person has lawfully entered or remained."


But procedure is everything in criminal law. The police have to follow certain procedures in collecting evidence. The prosecuting attorney has to jump through procedural hoops before going to trial, and the trial judge has to carefully follow procedure to avoid being overruled on appeal. The definition of self defense is not what is preventing an arrest and prosecution in the Travon Martin case. The procedure that police have to follow is the stumbling block.


The difference between Florida's law and Utah's is that under Florida law police have to show probable cause that the shooter did not act in self defense. And they have to show it before they can make an arrest or file charges. Specifically, it says that a police agency "may not arrest [a] person for using force unless it determines that there is probable cause that the force that was used was unlawful." This adds an extra step to what the police need to prove before they can go forward with a charge and arrest.


To add teeth the Florida law makes police put their money where their mouth is. If police cannot prove probable cause, they will have to pay the defendant's attorney fees, court costs, loss of income, and "all expenses incurred." So if police arrest too early and can't disprove self defense basically at the time of arrest, they can end up paying huge lawyers' bills. Prosecutors and police hate this so much they are asking the Florida legislature to repeal the stand-your-ground law.


In Utah, self defense is an affirmative defense. The police and prosecution do not have to do anything to disprove affirmative defenses before trial. At trial, if there is any evidence of self defense, then the prosecution has the burden of disproving it. But in a case like Trayvon Martin's, it might be difficult for the defense attorneys to show any evidence of self defense without their client testifying about what happened. That can be risky and most criminal defense lawyers would love the option to have their client remain silent depending on what the evidence shows.


The Florida law adds an additional hurdle to what the police have to be able to prove before they can arrest someone. That is good for criminal defendants because it means that they are less likely to be arrested as part of a preliminary investigation. Prosecutors and police always have final say over who they arrest and who they prosecute. But the hurdle that is most likely causing police to wait to charge Trayvon Martin's killer is not part of the law in Utah.

5 Best Excuses for Crimes

On a lighter note, 5 excuses for committing a crime that we do not recommend.

1. I didn’t inhale

 Our 42^nd president, Bill Clinton, a trained lawyer: “When I was in England, I experimented with marijuana a time or two, and didn't like it. I didn't inhale and I didn't try it again.”

2. I had to pee

Petra Cleary, of Washington D.C., tried the old “Call of Nature” excuse. “I told a State Trooper I was speeding because I had to use the bathroom. He told me where the closet restroom was located, followed me and wrote my ticket in the parking lot as I ran inside to use the bathroom.” At least they didn't follow her in the stall to be sure... (source )

3. I thought it was oregano

Blogger L. Havranek came home one day to find a medicinal marijuana sign posted in his herb garden. His wife nearly gave him a heart attack by posting the sign next to his medicinal, but hopefully non-narcotic, plants.

4. I forgot I was holding that gun

“Duy Dao took exception to two girls, (ten and fourteen years old), walking on a public street past his house. He lifted his net curtains and started shouting at them, then accused them of making fun of him, at which point he was probably right on the money.” He then pointed a gun at them and threatened them. When police questioned him, Duy claimed that “he ‘forgot’ he was holding the gun.” The police were sympathetic. He probably should have run that excuse by his lawyer.

5. It was that time of the month

Ma’am, do you have a license to be carrying that weapon?

Marijuana Crimes in Utah

Marijuana may not seem like a big deal nowadays. With California, and then Colorado, legalizing it for medicinal purposes, the stigma once associated with marijuana use has faded away to a certain extent. If you are charged with a marijuana crime in Utah, though, that stigma is still there. Marijuana charges in Utah are some of the toughest (if not THE toughest) in the nation. A testable amount of marijuana in a baggie is punishable by up to six months in jail, thousands of dollars in fines, and a six month suspension of your driver license.

If facing Marijuana charges in Utah, here's a few things to keep in mind:

1. The severity of your charge, and hence the potential sentence, is based on weight

Busted with an ounce of weed or less? Class B misdemeanor (unless you have prior convictions for marijuana or other narcotic use). Busted with a few bricks? Possible 1st degree felony and punishable by life in prison. That's right, that's not a typo: you could get life in prison just for possessing marijuana. Utah law states that possessing above a certain amount of marijuana leads to the reasonable conclusion that you meant to distribute it. Basically, the government thinks anyone with a lot of marijuana is going to sell it and charges you accordingly. The container is also weighed so if you packed the marijuana in heavy plastic or metal, better hire a good drug crimes attorney quickly.

2. Drug free zones enhance the charges

Where are the drug free zones? Almost everywhere. In Salt Lake County you can't go more than a block without being in a drug free zone. Schools, gyms, community centers, nonprofits, shopping malls, playgrounds, the list goes on and on. If you are stopped near any of these your misdemeanor marijuana charges just might have become felonies. Unfortuantely, some police officers use these to their advantage and will follow you until you are in a drug free zone before pulling you over just to get the enhancement.

3. The Driver License Division hates you

There is hardly a more frustration organization to work with than the DMV/DLD. They want, seemingly very badly, to suspend your driver license if you have a marijuana charge. There are deals that can be worked out such as diversions and pleas in abeyance that do not count as a conviction, which is what the DLD needs in order to suspend your license. A growing trend in Utah marijuana cases has been the DLD suspending licenses even though they don't have a conviction. Several times, I've had to get a court order and take it down to the Driver License Division to get my client's driver license back because the DLD unlawfully suspended it. It is a pain, they suspend it for long periods of time, and they occasionally due it unlawfully. A good Utah marijuana attorney is worth the money just so you don't have to be the one to deal with your driver license issues.

4. Prosecutors like to look tough on crime by being harsh on drug cases

Sadly, getting convictions with long jail/prison sentences is an easy way for a fresh young prosecutor to make his mark at his office. Big drug busts and the ensuing court proceedings often make it into newspapers and the prosecutors are even less likely to make a deal. Marijuana is an easy target because many city governments and counties in Utah want to seem like they are fighting the growing trend of marijuana becoming acceptable in society. This makes it much more difficult to work out good deals on marijuana cases.

5. Judges seem tough on crime by giving long sentences on drug cases

This is even worse than prosecutors going extra hard on marijuana cases. Judges now know that long sentences make the papers and put them in a good light with the powers that be and the general public. "Judge sentences drug dealer to life in prison," is a headline most judges crave. Even on things such as magic mushrooms and marijuana. It's a growing trend that, sadly, is filling our jails and prisons with mild marijuana users rather than the hardened violent criminals that should be there.

6. Bottom line

The bottom line is everyone in government is looking to be harsher and harsher on marijuana users in Utah. Don't let them push you around and talk you into pleading guilty! Eventually, at least in this attorney's humble opinion, marijuana will be legal everywhere, even Utah. Until then, if you are busted, call an experienced drug crimes attorney today and fight it.

Utah DUI Penalties

You've gotten a DUI in Utah and you've heard horror stories and conflicting information about what can happen to you. A friend of your cousin's said you can get five years in prison. Your neighbor told you his roommate got a DUI in Salt Lake City and only got a fine.

So what's the truth about DUI penalties in Utah? Here's some quick facts:

JAIL/PRISON

By far, this is my clients' top priority and the number one question they have about it is: how much jail or prison time am I facing? The answer is a resounding: it depends.

On a first DUI you are technically facing six months in jail but if you pled guilty you would possibly only get the minimum mandatory of two days unless you had aggravating circumstances like a high BAC, an accident, you were a jerk to the cop, the prosecutor doesn't like you etc. On a second DUI the minimum mandatory goes up to ten days. On a third, you're now facing five years in prison with a minimum mandatory of 62.5 days. The "minimum" though set by law, varies by judge and prosecutor though so be careful. Some clients that I have tried to go it alone first and ended up getting far in excess of the minimums. When a prosecutor knows you're at their mercy, they can do whatever they want. Best not to go without representation and let that happen. And yes, I have seen first time DUI's get nearly the maximum in jail (it was a bad case though where they hit another car and disabled the other driver).

FINES

How much are you going to pay? A lot. Let me emphasize that: A LOT. DUI's are major money-makers for cities, counties and states. A single DUI in Utah, with the impound fees, license reinstatement fees, fines, attorney fees, treatment class fines, etc., could run, in total, somewhere between $5000-$20,000. The court fines are just the tip of the iceberg. A good attorney can help minimize these costs, but not get rid of them entirely. Expect to pay something.

TREATMENT

Courts love recommending lots of treatment, even though the studies suggest they have little impact on DUI offenders. Regardless, treatment will probably be part of any deal you negotiate. It can run anywhere from 4 hours of classes to 50 hours of classes depending on the treatment provider chosen. Speak with a good DUI attorney about what treatment providers are good, or get other recommendations from people you may know. You may find reviews of treatment providers online and you can research them there as well. One thing to keep in mind: many treatment providers have you pay for an assessment to determine if you need treatment and then provide the treatment too. Clearly a conflict. Government agencies usually are better on this but BE CAREFUL. Treatment costs can easily skyrocket.

DRIVER LICENSE

The suspension rules are complex and too broad a topic for a section in a blog post. You need to research them or hire an attorney (sorry to keep saying that but it's just such good advice!) and figure out which sections of the administrative rules and Utah Code apply to your case. Your license could be suspended for as little as four months or as long as three years. This is very fact specific to your case and you need some research or to consult someone knowledgeable to figure out where you fall.

WORK

You may not want your work to find out that you have a DUI. There's going to be documents filed, possibly subpoenas sent, phone calls made etc. This is something you need to be wary of if it's important to you. To be honest, the court doesn't care if you get fired over this so you're the only one that can prevent it. Getting a P.O. Box as your official address may not be a bad idea if you don't want people in the home finding out either.

COURT APPEARANCES

Sadly, this is something that can rarely be prevented. You're going to have lots of them. More if you have a good attorney, less if you have a bad one and they plead you guilty the first chance they get (unless there is a specific reason for doing so and there sometimes is). You're going to miss work, children's birthdays, soccer games etc. You just have to work with your attorney to schedule these the best way possible.

MORAL IMPLICATIONS

You may feel bad on a moral level that you committed a crime and feel that you deserve punishment. Put that out of your head right now! The prosecutor's job is to prove crimes, not make you feel bad. We all make mistakes. I have defended doctors, lawyers, politicians, Church leaders and on and on. We're human. The point is to get the best possible outcome for you, learn from the experience, and make sure it doesn't happen again. Don't beat yourself up over it if you have a DUI.

OTHER PENALTIES FOR A DUI IN UTAH

There's going to be more associated with a DUI in Utah, like ignition interlock devices, becoming an alcohol restricted driver, having your vehicle towed, having the stigma of the charge on your record etc. Frankly, there's so much that entire books have been written on DUI's. The best thing you can do is hire a good DUI attorney and begin the process as soon as possible.

By Yossof Sharifi Google

Utah DUI's and Your Driver License

So you've gotten a DUI in Utah. It's not something you normally do and now you're worried about the consequences. Aside from going to jail, what's your top priority right now? It should be keeping your driver license.

Can you imagine not being able to drive for anywhere from four months to three years? I certainly can't. Some of my clients have even told me they would be willing to go to jail if they could keep their driver licenses!

Utah is one of the strictest state's when it comes to suspending driver licenses after a DUI. You need every advantage you can get.

Here are some tips on how to keep your driver license after you get a DUI in Utah:

Hire an Attorney

I know, I know, it sounds self-serving for an attorney to say "hire an attorney." But think about it: some attorneys, myself included, do hundreds of DUI's. That means hundreds of driver license hearings to try and keep our clients' licenses. It's just common sense that the more something is practiced the better you'll be at it. The fact is, these hearings are complex and the rules are rigid. Miss one deadline, send a fax to the wrong place, call the wrong number, and your license is suspended. There are a lot of bad attorneys out there that won't do anything for you, so if you are going to hire an attorney, make sure they've done plenty of DUI's and have received at least some training in conducting DUI defense in Utah. DUI's are not like other criminal cases because of the technicalities and science involved. Law school doesn't prepare one to handle these. Your attorney should have additional training.

2

Request a Hearing with the Driver License Division

You MUST MUST MUST, request a hearing within ten days of receiving your DUI in Utah. That includes weekends, holidays, emergencies, hospitalizations, whatever. If you miss the ten day deadline, there's almost nothing that can be done. You can request a review for a late hearing, but these are rarely granted. I had one client who only spoke Spanish and the officer informed him of the hearing in English. He, obviously, missed the ten day deadline and hired us later to handle the case. The Driver License Division still would not give him a new hearing, even though he was never really given notice of the hearing. We had to appeal it all the way to the Third District Court and take the case away from the Driver License Division before anything was done. Remember, you can fax or take down your hearing request to the Driver License Division in person, but do not miss that ten day deadline. I recommend you go the day after and just get it done.

3

Get All the Reports

You're entitled to the DUI reports, blood, breath and urine results, intoxilyzer checklists and printouts, and just about everything else that is going to be introduced at the hearing. Make sure you get these early on from the Driver License Division.

4

Pick Your Issues

Attack every little irrelevant piece of information at the hearing and the hearing officer will tune you out at best and tell you to cut it out and move on at worst. Pick the best issues to attack and stick to them. Don't let the officer get away with statements like, "And then I performed the field sobriety tests and he failed." Make him describe what training he's received in performing the FST's, how many times he's performed them, and how he performed them on the night in question. Remember, the standard is so low at a hearing, you need something very wrong with the case to win. Do your homework and remember that DUI police officers are only human; they do make mistakes.

5

Appeal

If you lose the hearing, you will receive a notice in a couple of weeks letting you know the date your driver license is officially suspended. For a first DUI offense the suspension is 120 days. A second DUI is two years. You have the right to request a review of your suspension in writing to the Driver License Division. If they send a letter to you informing you that they are upholding the suspension, you can then appeal to the local district court and place the case in front of a judge instead of a hearing officer. Of course, for DUI's in Utah, the Attorney General's Office takes over at this point and the prosecutor they have handle the driver license hearings is an expert at them. She's also pleasant and a good person, but talented and aggressive so be careful. If you lose the appeal, you can try and take it up to the Utah Court of Appeals and the Utah Supreme Court, but there would have to be something seriously wrong for them to consider it.

By Yossof Sharifi Google Photo: Mclovin: From the movie Superbad

Facebook Catches Crooks - Policing 2.0

The cops are catching on to the social media revolution and criminals might not like what they find.

In Ogden, Utah, a kidnapping suspect kept updating his Facebook profile after the police shut off power to the motel building where he was hiding. One friend told the suspect on Facebook that SWAT was staging in bushes nearby and told him to keep low. Police are thinking about charging the friend for helping the kidnapper.

In Indiana, it took police less than 30 minutes to find a suspected counterfeiter on Facebook. Police posted surveillance video of the woman they were looking for. A man saw the post and sent a message saying that he knew the woman. Less than thirty minutes later, police were questioning her about the counterfeit money. She has since been cleared of the charges.

Finally, Canadians in Victoria kept police updated on Twitter of criminal activities that they were witnessing. Police got messages about plans to vandalize a stretch of one street and responded to the area before anything could get out of hand. Police got specific tips about people drinking illegally in certain areas and responded to arrest. "At one point traffic was so heavy that VicPD, with 2,000 followers on Twitter, was trending as a national conversation."

Be careful what you tweet and what you put on Facebook. The police may be watching.