Shoplifting, Larceny, Robbery, Theft Complex double Jeopardy issue

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Dave_H_23

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My son was convicted of delivery of a controlled substance and involuntary manslaughter in a jury trial. He was acquitted on a charge of sexual assualt. He was sentenced to 5 years (the max possible) on each count and served the sentences and is done with parole. When I say "the max possible" I mean the max without consecutive or extended term sentencing. The prosecutors tried to get consecutive at the sentencing hearing.

I convinced my son to follow through with the appeal and he won the appeal with a remand for retrial.

There is a lot of money and power behind this persecution, I mean prosecution. I have a bad feeling they'll take this opportunity to come after my son again and make it hurt. I don't want to know what would usually be done because this is not that kind of case. It's what you attorneys call a heater case. Please think worst case scenario because that's how this has gone from day one.

I understand that in the end, the worst that could happen would be that my son could get convicted (or plea to) of the same charges he was originally convicted of. I don't believe the state has any basis for a consecutive or extended term sentence.

Here are my questions-

1. Does the state have to go back to a grand jury to get an indictment or do they just use what they originally had?

2. Once they charge him, they will probably try to set a high bond to put him in jail. Would we be able to effectively argue that any time in custody would be double jeopardy since he served the entire max sentence? If you think this can be argued effectively, could this be started/filed now before he's charged? Do you have any other ideas of what could be done to keep the state from putting him in jail?

3. If this goes to trial again, how do we keep the prosecutors from presenting false evidence, suborning perjury, etc. like they did in the first trial?

Thanks for any help!

-Dave
 
Your case is not the average one…………….I honestly think it needs an experienced appellate lawyer to personally review it and give you accurate answer. Appellate case law is complex in such a case, and needs a real specialist in your state's law. But just to give you some inside, a grand jury does not need to indict him again. He was already indicted. More so, even if they sent it to a grand jury it would be very easy to get one. In grand jury proceedings it is just the prosecution's case which is presented and does not have a high burden. Even one witness testimony can be enough. They can do it even at a preliminary hearing before a judge…..very easy. He can get away with no bond if he is appealing the charges which he was convicted for…………You lawyer would explain the technicalities to you, given he has served the max time already. They can hold him if discovery leads to a new charge against him. The prosecutors knowing fully providing false evidence would end their careers and throw them in jail. Any evidence must be able to stand scrutiny in a court of law. If your lawyer can bore one hole into their credibility, that would make your sons case.
 
mafioso,

Thank you for your response. First, we can't afford any more $ for lawyers. We already spent over $40k. My son's state appellate defender won the appeal, but even after multiple requests for the info we need he will not respond.

The reason I was asking about the grand jury is because the state lied to the grand jury the first time around and this was not addressed. Could it be addressed now?

Am I understanding you correctly that there a risk of new charges on this? I thought they had to charge everything and that was it, especially since this was already tried and he served the time.

Regarding the prosecutors... You're goofing with me, aren't you?
 
I am serious…………any prosecutor who knowing fully submits false evidence would go down in flames. I am sure you must be familiar with the Duke Lacrosse prosecutor (just Google it)……….He went to jail and was disbarred. Even withholding evidence which could lead to a verdict of not guilty or dropping of charges is a very serious crime. But it must be shown they had the intent to mislead.

Unless the statute of all the possible charges has run out, or lack of evidence to add a new charge, nothing stops them from trying to tag a new charge. They sometimes try to tag new charges to dissuade you from going forward. They would not bring a new charge without new evidence discovered during discovery so it is not likely but a possibility in law. They normally are to fight only the appeal charges in the case. But they can try to file new once in a separate case. You must have seen a couple of days ago the state going after Michael Vick after the feds have. It is not double jeopardy due to two jurisdictions. They did it even in a cunning way….. They have gone after him for charges which the Feds did not press yet they had the same evidence as the feds…..read the articles it would give you an inside into how the law can be twisted. They would enter Vicks plea as evidence against him in state court. Believe me, it is within the law.
You won the appeal to try the case only on the bases the appeal was won. If the finding was that they misrepresented evidence in the grand jury proceedings, then they would have to go get a new indictment from a judge or grand jury. My point is, it is easy to get. It is almost just like probable cause…..
 
mafioso,
Thanks for your answers regarding the additional charges and the grand jury stuff. I will talk to my son and he will probably try to end this asap given there's a chance of more charges. I wish I hadn't encouraged him to continue with the appeal. I was still hoping for some kind of justice. Silly me.

I did cartwheels when Nifong had to spend the night in jail. I don't want to argue with you about this, but... If I'm not mistaken, Nifong is the first prosecutor to ever spend even one night in jail on such a matter in the US. And how much did the Duke defendants spend on attorneys to get that done? I think it was a million or so. I really don't think that Nifong is a "rogue" prosecutor. I think what Nifong did is standard procedure in most houses of prosecution. (Hey, I just made that up. Do you get it?)

We've been beaten down by the criminal justice system. My wife and I poured through the discovery for a year and gave (actually wrote up) things for our defense attorney to use at trial. I had triple bypass surgery 6 weeks before the trial. Our defense attorney didn't put on a defense. I had to twist his arm on breaks during the trial and tell him exactly what to say to get my son acquitted of the most serious charge, rape.

Tell me how I can expose or press some kind of charge against these prosecutors without incurring their wrath and I will. These guys are mean, dishonest, and they effectively have no oversight. I already talked with someone at the IL ARDC and I told them I was afraid of retribution from these prosecutors. They told me, "Why don't you move out of state." and "Why do this if it wouldn't do you any good." A nationally known journalist familiar with these kinds of legal matters has verified that the proof I have of subornation of perjury is valid.

I'm not the only one trying to fight this fight. I hope to God this can change because the way it is now is sick and very broken. Please take a moment to look at this from former Ronald Regan staffer Paul Craig Roberts:
http://vdare.com/roberts/061211_criminal.htm
What do you think?
 
A new trial may not result in the same end result. Generally (at least out here) the preliminaries are still good and they simply have to return to set a new trial - no new Grand Jury or, generally, a new preliminary hearing.

One case I was involved in resulted in a conviction and a stiffer sentence ... the original conviction was for assault with a deadly weapon on a peace officer, the new one was for attempted murder of a peace officer ... he went from 15 years to 35 to life.

Yes, a new trial CAN have an all new result.

- Carl
 
Nifong was the first in jail but countless others have been reprimanded or lost their jobs for similar actions. I understand your disappointment with some prosecutors………….most don't play fair…..It all about their conviction rates which is what they are evaluated on in jury trial. Bench trials in most states are not considered in their conviction rates……….they tends to go easier on the defendants. I would suggest you wait for your son's case to be completely over before trying to expose them. You can always file an ethics complaint with your county court (the will tell you the formalities) and talk to a member of your city council for advice or even the local bar association. I know your financial situation after all what you have been is hard right now. But just get an appellate lawyer to review your case before you decide not to pursue any longer. Don't let them scare you off. It all depends on a skilled lawyers review. My intention was never to let you feel discouraged, but just to make you be aware of some prosecutorial tricks you may encounter. Carl also raised a valid point in his previous post. But only a lawyer who thoroughly reviews your case should be the one to tell you to let go. At that point, or after the trial, you can file the necessary petitions at the bar at local level against all prosecutors involved in "knowing fully" mounting the fake evidence. You could even get the journalist help blow the whistle.
Just read the article……………It tells the whole story. It is indeed very accurate and explains some of the issues I raised. These guys would do whatever it takes to win. But exposing them when the time is right, would save some people like your son who might be victims of prosecutorial misconduct.
 
Dave H 23 said:
That's very interesting. Can you tell me more about the case so I can look it up?
Click to expand...
If you were refering to the case I was involved in, it was not part of a published decision. It was originally tried (and re-tried) in San Diego County Superior Court. The retrials were several years ago ... from 2001 to 2002, I believe. I had moved and was flown down and put up for the trial on two seperate occasions (even the retrial needed a retrial due to an error by the prosecution in the first retrial). I doubt much information exists on-line anymore.

- Carl
 
Mafioso,

Why wait till after a trial? Can't this kind of misconduct proof be used as leverage against the prosecutors either during plea negotiations to avoid trial or during a trial?

Also, are you referring to a different article or the one I linked to?

Thanks,
-Dave
 
I am talking about your article………..it is a good one. Well, you are right that exposing them might help now. But if these guys hate anything, it is questioning their prosecutorial integrity. That would drive them mad and to treat the case with a personal vendetta against your son. They would review the whole case and try to tag more new charges and throw the book at him (play hardball like what is going on with OJ Simpson……throw all and see what sticks…We all know 10 felonies is over charging like in your article). What I advised is not a legal opinion but my personal opinion. I feel you and your lawyer can best evaluate which option is the best based on what they have and if they have sufficient evidence to throw the book at him (if statutes have not expired). These guys would fight to death to protect their integrity and reputations……..it could end their careers.
 
Mafioso,

The term "prosecutorial integrity" is a laugh... if it wasn't so serious an issue. We're talking about our very freedom here. And I mean free to persue your happiness versus locked up in a cage for a very long time. I really appreciate your advice. Tangling with these prosecutors is very scacy and very tricky business.

I wish I had the nads that this grandmother has, check this out:
http://www.nancygrant.info/

I feel very strongly that we need to work to change this and I'm inspired by this quote:

"Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has."
Margret Mead

Again, thanks for the advice.

-Dave
 
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Wow, the prosecutors threw the book at Nancy Jo Grant.....I read the link you sent and the case update from Google. It is sad; hope she can be allowed to expose whatever she found one day......
 
1. Does the state have to go back to a grand jury to get an indictment or do they just use what they originally had?

A: They could probably go either way.



2. Once they charge him, they will probably try to set a high bond to put him in jail. Would we be able to effectively argue that any time in custody would be double jeopardy since he served the entire max sentence? If you think this can be argued effectively, could this be started/filed now before he's charged? Do you have any other ideas of what could be done to keep the state from putting him in jail?

A: This is not double jeopardy since your son was the one who filed the appeal.



3. If this goes to trial again, how do we keep the prosecutors from presenting false evidence, suborning perjury, etc. like they did in the first trial?

A: Talk to your state Attorney General.
 
seniorjudge,

Are you sure about the double jeopardy issue? By filing and winning an appeal, he basically forfeits the fact that he served the full maximum penalty?

-Dav H.
 
mafioso,

I just saw that Nancy Jo Grant got 15 years probation for practicing law without a license. Around here, probation is a bite. Some people would rather just do the time. I can't imagine 15 years of probation...

-Dave H.
 
Dave H 23 said:
seniorjudge,

Are you sure about the double jeopardy issue? By filing and winning an appeal, he basically forfeits the fact that he served the full maximum penalty?

-Dav H.
Click to expand...

I never really trust wikipedia....

But in this case, they got it right.

...

Exceptions to double jeopardy

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty. Cases that have been dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for limited prosecutorial appeals from these orders. A re-trial after a conviction has been reversed on appeal also does not violate double jeopardy, because the judgment in the first trial has been invalidated. In both of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

....

http://en.wikipedia.org/wiki/Double_jeopardy
 
I understand that they can try him again, but...

If we take this all the way to the end... let's say they convict him again and sentence him again to the maximum (5 yrears in this case) does that mean he serves another 5 years in the state pen? Wouldn't one would get credit for the time already served?

-Dave H.
 
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