Representing Yourself Against a Criminal Charge: Part I, Pretrial

Rimmer: If only I’d hired a smarter lawyer, instead of the brain-dead, pompous, stupid-haired git I ended up with.
Lister: You defended yourself!
Rimmer: Yes, and I don’t need reminding of that, thank you very much.

Red Dwarf

In the United States, you are allowed to represent yourself in a criminal trial, but it is almost always a bad idea. To help illustrate what it might look like when a person tries this in Utah’s courts, I am going to take readers through a hypothetical Utah case. Assume Jane Doe has been accused of Theft of Services under Utah Code 76-6-409. Jane is an intelligent businesswomen, but she has never dealt with the criminal justice system before.

Jane’s Side of the Story
Jane had lunch with two of her friends at a local Utah cafe. Normally, each one of Jane’s friends pays for their own food. Jane needed to return to work earlier than her friends. She went to the cashier and paid for her portion with her credit card and returned the remainder of the bill to her friends. A couple days later, a police officer tracked her down via her credit card address. The officer informed Jane Doe that she is being charged with Theft of Services for not paying the whole bill. After talking with her friends, she determined that friend #1 paid in cash, and friend #2 thought friend #1 paid for both of them. Somehow $17 from the lunch did not get paid, and the restaurant called the police. The police officer contacted the only person in the group the restaurant could identify.

Jane’s First Day in Court
The police officer told Jane Doe that she will have to go to court. Jane shows up for what turns out to be her arraignment. She asked for the morning off of work, but she hopes she can put this scary episode behind her once she explains to the judge what happened. After waiting through a couple hours of miscellaneous court proceedings, the judge finally calls Jane’s case. The judge wants Jane to enter a plea and to set the next court date. Jane has been waiting all morning and has no intention of simply saying “not guilty.” She thinks that if she explains what happened, the judge will simply dismiss the case.

Unfortunately, the judge cannot dismiss the case at this point. Even if the judge believes Jane, it is still the prosecutor’s decision about whether or not to dismiss the charges. The judge tries to find a polite way to tell Jane, “I don’t care.” (Judges want to avoid giving that impression. Everyone accused is entitled to their day in court.) Jane’s judge knows that regardless of what Jane says, he cannot yet dismiss the charges. After interrupting Jane’s story, the judge manages to help Jane to understand that she will have to come to court again.

Pretrial Conference
A month later, Jane once again asks for time off work and comes to court. Surely now the justice system will understand her point-of-view! Maybe. The prosecutor talks to Jane, and the prosecutor does have the power to drop charges. However, most prosecutors have heavy case loads and have to make snap judgments. At best, the prosecutor read the police files that morning and knows what the police officer wrote. At worst, the prosecutor merely looked at the charges. Regardless, most prosecutors generally do not dismiss the charges without something in return.

For our hypothetical, the prosecutor offers to reduce the charge from a Class B misdemeanor to a Class C misdemeanor, and promises to recommend to the judge that Jane serve no jail time. At this point, Jane is completely mystified as to why she should plead to anything. Although it was her friend’s meal, Jane would gladly pay the restaurant $17 to make the charges go away, but the prosecutor refuses to drop the charges. Jane considers accepting the plea to avoid further hassle, but she decides she does not want to have a theft charge on her record. She is confused and angry that no one is listening to her.

Jane waits another hour to speak to the judge. She implores the judge to listen to her story, but the judge still does not have the power to dismiss the charges. The judge tells Jane that she can set her case for a trial and that will be her opportunity to tell her side of the story. Jane says that is what she wants. The judge asks her if she wants a jury trial or a bench trial. Jane has does not know which she would prefer. She tentatively asks for a jury trial.

The judge sets a trial date . The judge tells Jane there will be a final pretrial conference one week before the trial. Jane does not know what that means. The judge tells her that it is customary in Utah for both parties to meet about a week before the trial to meet. It is an opportunity to discuss jury instructions and make sure everyone is ready.

The judge gives Jane Doe an outline of how the trial will proceed. He asks Jane if she will want anyone to testify at her trial. Jane says she thinks she wants her two friends to testify. The judge tells Jane that she has the power to subpoena witnesses if she wants. He advises her it is not too late to hire an attorney and then excuses Jane. Jane spends the next 45 minutes talking to the court clerk trying to figure out how to subpoena her friends.

Final Pretrial Conference
Jane once again must take time off work for her court date. She arrives for the final pretrial conference, and the prosecutor tells Jane that she talked to the restaurant manager. The restaurant is very “active” in pursuing criminal charges, according to the prosecutor. The restaurant is adamant about discouraging someone else from trying to “dine-and-dash.” Jane says she paid for her meal and would gladly reimburse the restaurant for her friend’s meal if they will drop the charges. The prosecutor shrugs her shoulders and says that her hands are tied.

The prosecutor asks Jane if she looked over the proposed jury instructions. Jane says she thinks they look fine. They then speak to the judge, who asks if everyone is ready to go forward with the trial. The prosecutor says she is ready. Jane says she is not sure; she has never seen a real trial before. The judge again explains the procedure of how the trial will go, but gives very little in the way of trial advice.

Jane has missed parts of three days from work and is frazzled. She is no closer to winning her case.

Up next in Part II: the Trial.

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Posted by on May 27, 2015 in Criminal Law


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Junk Science Continues to Plague Criminal Justice System

The criminal justice system is still suffering from decades poor forensic evidence. One of those fields, microscopic hair comparison review, has been in the news lately. The FBI has been reviewing cases where their experts gave testimony about supposed hair matches. They found that in over 95 percent of the cases reviewed the FBI’s own forensic examiners overstated the forensic matches.

It is unfortunate that there has not been more of an outcry over this story. It is bad enough that innocent people have been sent to jail. There is no other way to describe this but as a tragedy. We know people have spent years, even decades, in jail for crimes they have not committed. It also means that law enforcement stopped looking for the person who actually committed these crimes. Perpetrators likely remain free, committing more crimes, because the law enforcement agency stopped investigating.

The problem with hair analysis is it is not scientific. It is subjective. When comparing two strands of hair, the identifiable characteristics of each strand are limited. Usually, what can really be determined by looking at a hair under a microscope is its color. That might, for example, narrow the field of suspects if the police think the perpetrator has red hair, but that strand of hair cannot definitely be said to come from any one person (unless there is DNA attached).

For decades FBI analysts were testifying in court that they could identify matches, sometimes going so far as to say they could positively identify them. Local forensic agencies followed the FBI’s lead. Countless people have been wrongly convicted, but the wheels of justice have been slow to reverse the wrongfully convicted.

By Nevit Dilmen - Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

Human Hair Closeup by Nevit Dilmen – Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

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Posted by on May 11, 2015 in Criminal Law


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How Long Can a Traffic Stop Last? It Has to Be Reasonable

Today, the Supreme Court clarified how long police officers may keep someone they have pulled over for a traffic stop. Thankfully, the answer is only for a short time. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” the Court said. This means that an officer may not require people to stay and chit-chat or wait for a drug-sniffing dog to arrive once the officer has issued a ticket or a warning.

Some courts had been allowing police officers to keep people a few minutes extra as long as the intrusion was minimal (“de minimis“). This is good news for anyone who will ever be pulled over for speeding or any other traffic infraction. Police officers will not be allowed to waste more of your time as they go on fishing expeditions for illegal conduct.

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Posted by on April 21, 2015 in Criminal Law


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Advance Parole under DACA

The Deferred Action for Childhood Arrivals (DACA) program has vastly improved the lives of thousands of immigrants. The primary benefit is that it allows people to have an employment authorization card and work legally. However, it only grants a few other immigration benefits. Travelling can be an issue, at least for anyone who would like to leave the country. It is fine to travel within the United States, but leaving the country requires a plan. DACA holders must apply for “Advance Parole” from USCIS, and then wait for permission before they leave the country. Any DACA holder who travels outside the United States without Advance Parole, or who has already done so since August 15, 2010, automatically loses their deferred action.

USCIS does not grant Advance Parole to all DACA holders. A mere desire to travel will likely be rejected. The applicant must qualify one of the three specific reasons USCIS grants Advance Parole, which are:

    Humanitarian Purposes – travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative
    Educational Purposes – semester-abroad programs and academic research
    Employment Purposes – overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

To apply for Advance Parole, a DACA holder should collect and submit the following: 1) a completed I-131 form Travel Document from USCIS; 2) a photocopy of their photo identification, such as a passport or driver’s license 3) a copy of their I-797 form showing approval for DACA; 4) 2 color, passport-style photos of the applicant; 5) documents that support the claim that they qualify for one of the above reasons for Advance Parole, such as medical documents proving the existence of an ailing relative; 6) a check or money order for the current application fee for an I-131. The applicant then mails the necessary documents to USCIS for approval.

A word of warning for anyone who have been ordered to be deported or removed: speak with an immigration attorney before applying for Advance Parole since there are complication for those types of cases. It is possible to be approved for Advance Parole, but still not be eligible for re-entry to the United States.

Emergency Travel
If you are experiencing an extremely urgent situation or otherwise need a shorter processing time, USCIS will consider expediting a request for Advance Parole. Emergency travel and expedited requests are reviewed on a case-by-case basis, and are granted at the discretion of USCIS. Applicants must demonstrate that the meet the criteria of USCIS. Anyone in such a situation should contact a lawyer about whether or not they qualify and to make maximize the chances the request is granted in a timely manner.

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Posted by on March 27, 2015 in Immigration Law


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Utah and the Firing Squad

On Tuesday, the Utah Legislature passed a bill that would permit the state to use a firing squad for an execution if the state cannot procure the drugs that are currently used for a lethal injection. The bill needs Governor Herbert’s signature before it becomes a law.

This piece of news was picked up by national news outlets and is giving Utah a black-eye. While I am against the death penalty, I do not see using a firing squad as worse or more barbaric than lethal injection. I could not state it more eloquently than Judge Alex Kozinski wrote it in his dissent for Wood v. Ryan (internal citations omitted):

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution…. Firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

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Posted by on March 13, 2015 in Criminal Law


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Utah’s Controversial Ag-Gag Law

Utah has a law making it illegal to “interfere with agricultural operations,” or, as it is colloquially known, the “ag-gag” law. Utah Code 76-6-112 makes it illegal to film or record an image of a meat processing facility, or to enter a facility under false pretenses. The law has been controversial since the Utah legislature passed in in 2012. At least one person has argued that the law is a violation of the First Amendment. However, only a few people have ever been charged so a judge has yet to rule on the constitutionality of the law.

The law is unique in that it protects a specific industry. Utah does not have similar protections for other workplaces. Regardless of whether or not it is good policy, the law is most likely to affect people who intend to expose the practices of meat production. Someone who breaks the law could potentially research the laws before hand.

Anyone considering leaving a recording device within an agriculture operation should know that conviction is punished as a class A misdemeanor. Class A misdemeanors are punishable by up to one year in jail with a maximum fine of $2,500. That provision of the law does not extend to public property. If a person were somehow able to film the facility from a neutral vantage point, this law would not be implicated.

Alternatively, a person could be convicted of a class B misdemeanor under three different provisions of the law. First, a person could be convicted for entering an agricultural facility under false pretenses. “False pretenses” could be any sort of lie designed to gain access to a facility. Second, a person could be convicted for obtaining a job and filming the facility. Finally, a person could be convicted for committing a criminal trespass and then recording the facility. Class B misdemeanors are punishable by up to six months in jail with a maximum fine of $1,000.

Anyone accused of interfering with an agricultural operation should contact a lawyer immediately. After all, there is little point in engaging in some civil disobedience and then unwittingly neglecting the best legal arguments. As mentioned, there may be constitutional and other legal arguments in favor of dismissal.

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Posted by on March 9, 2015 in Criminal Law


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Utah Legislature Considering Making Certain Consensual Sex Acts Illegal

The Utah Legislature is currently considering HB 74, which would make it impossible to consent to certain sex acts. A person reading or watching the local news coverage would have a difficult time figuring out what the proposal actually changes. Judging by the comments of the respective coverage, it seems people are not aware that the law—as currently written—already criminalizes the conduct they find objectionable.

HB 74 would make it so that no matter how much both consenting adults might enjoy certain sexual activities, in the eyes of the law, it would be rape. The following words are proposed to be eliminated from two separate subsections of Utah Code 76-5-406:

(5) the victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;

There are many potential acts that would now improperly be defined as a rape, but here are just a couple ways the bill is objectionably over-inclusive:

Consent Explicitly Given: Imagine a married person asked for the following from his or her spouse, “I like to be woken up by [specific sex act]. Would you mind doing that for me tomorrow morning? On my birthday? On Valentine’s Day?” Under the proposed changes to subsection 5, the explicit consent is irrelevant to whether or not a rape has occurred. At the time of the initiation of the sex act, one person would be unaware that the act is occurring and physically unable to resist. Whether or not all people would enjoy having their partner lovingly awaken them with a sex act, the Utah Legislature should not make it illegal for the people who do enjoy it to have fulfilling sex lives.

Bondage: A prosecutor could bring charges, and potentially convict someone for rape, under both proposed subsection changes. Regardless of how much a person might enjoy being tied-up, handcuffed, or otherwise restrained, the person is likely unable to physically resist the sex act. By making consent irrelevant under subsection 5, and having complete mental capabilities irrelevant under subsection 6, a person who engages in bondage could potentially be convicted of rape.

A few people have argued that if two people are consenting, then no one will report a crime. I have a couple responses to that. First, some people enjoy talking to their about their sex lives. No one knows what a busy-body neighbor or an over-zealous police officer will do with the information. Consenting adults should not have to worry about the government intruding. Second, there is no statute of limitations for rape in Utah. Many years later, after a relationship has turned sour, someone could report a “rape” that occurred between two consenting adults. The other person would be sure to draw an objection in court for even pointing out that the act was consensual.

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Posted by on February 4, 2015 in Uncategorized


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Expansion of Deferred Action Program

President Obama, in late November, outlined an expansion of the deferred action program that will include more people. We do not yet know the full details, but here is a bit about what we do know.

First, he ordered USCIS to expand the number of people who are eligible for DACA and the duration of approvals. While most of the other policy changes are going to take place later, renewals of DACA are now good for three years instead of two years as they previously had been.

Still to be implemented is the removal of the age cap. As originally implemented, DACA only applied to people born after June 15, 1981, but soon it will apply to everyone as long as they came to the country before the age of 16. DACA will also apply to people who were in the country on or before January 1, 2010 so more people will be eligible.

USCIS is also working on creating a new category of deferred actions for the parents of U.S. citizens or permanent residents. USCIS has not said yet if there will be an age minimum or maximum for this category so keep up to date on any new developments. Obama’s executive order requires that a person must have been in the country on November 20. 2014, and it is likely that USCIS will require some documentation to prove that. USCIS will have discretion to grant a deferred action. We do not know the specifics but people without any criminal history or contacts with bad organizations are likely to be approved. If the program is implemented similarly to DACA, people who do not have significant misdemeanors will be eligible as well. Those who are approved will be able to work legally in the United States, but they will not have a path to citizenship.

Finally, the executive action also expands the number of people who are eligible for conditional waivers when applying for an adjustment of status. To be eligible, a person mush be an undocumented immigrant and have resided in the United States for at least 180 days. Also, a person must either be the child of U.S. citizens or be the spouse and child of lawful permanent residents.

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Posted by on January 12, 2015 in Immigration Law


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Why Are Police Departments Reluctant to Use Body Cams?

On September 30, Salt Lake County District Attorney Sim Gill announced that the prosecutor’s office had reviewed body camera footage and cleared a police officer of potential charges for shooting an unarmed man. The body-cam video (available from the Salt Lake Tribune) shows the man walking away from the officer before turning around and lifting up his shirt. Sim Gill said the video showed the officer was justified in his fear for his safety and the use of a firearm was reasonable.

Over the last couple months, there been heightened public scrutiny of police shootings and other actions. A properly used body-cam would record whenever a police officer is on duty. Unfortunately, no police department in Utah requires all officers to use them. This video helped clear one officer. With regular use, officers should become accustomed to having everything on tape and just behave in their usual manner.

Digital recording technology has advanced to the point that police departments throughout Utah could have every officer regularly wear a body cam. They would be invaluable in bolstering police officer testimony, and they would not be susceptible to the problems of memory. It is curious that police departments are the least bit reluctant to start requiring every officer to wear one.

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Posted by on October 6, 2014 in Criminal Law


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Police Officers of America, You Have a Problem

Last night I was talking to my 4-year old niece. She told me Biscuit the Dog was missing. I told her, “You should call the police!”

“No, the police shoot dogs,” she told me.*

I was shocked to hear this because I have not done anything to educate her about police officer excesses. She learned of police officers shooting dogs from someone else. As near as I can tell, children’s television programming still portrays law enforcement officers in a glowing light. There are other places she could have picked up this tidbit, perhaps from news stories about the Salt Lake City police officer who shot a dog that was in its own yard. Unfortunately, there is nothing unique about that story and she could have heard similar stories anywhere.

*I, of course, asked her where she heard of police officers shooting dogs, but she was unable to tell me where she learned of this.

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Posted by on August 28, 2014 in Criminal Law


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