NOT LEGAL ADVICE. This is for a story and involves no actual people.
I have a character, who I’ll call WR for now, who was arrested after getting in a fight and beating up several other young men, one of whom died. WR decided not to post bail (I’m not sure if he doesn’t have the money or doesn’t want to ‘waste’ it.) This is his first time being arrested.
He’s been read his rights (which in this world also involve ‘are you a mutant? if so you’re utterly screwed’ Luckily he’s not as far as people know), he’s been assigned an attorney, and… now what?
What sort of things would his attorney ask him / tell him? The attorney is young and it’s his first solo case (he’s got a mentor who’s helping him).
I have no idea why I decided I to write this, as obviously, I’m way over my head.
I don’t get why you’d think the bail money would be wasted. AFAIK, bail is only forfeited when the defendant fails to appear for trial or otherwise violates the conditions of bail.
If he doesn’t post bail, he will sit in jail until the case is tried. He will be transported to court for pre-trial hearings and such.
At the first meeting, his lawyer will probably advise him of the charges he’s facing, minimum and maximum sentences for those offenses, applicable deadlines, hearing dates if known, and other procedural matters.
Beyond that, it will vary somewhat depending on the lawyer.
When I used to do criminal work, I’d generally ask them to tell me what happened. Depending on what they say, I’d begin to formulate a defense strategy. Some discussion about the desirability and/or possibility of a plea bargain would take place.
On the few facts presented, the guy might be charged with anything from simple assault to murder, depending on additional details that aren’t provided. I strongly suspect there will be at least one felony count. The death is going to make it difficult to get a deal where he could plead to a misdemeanor. Probably also going to make it difficult to get a deal for probation. If there’s a body, the prosecution is probably going to insist on prison time.
At trial, his lawyer is likely going to be arguing self defense. Maybe the jury buys it. If not, after sentencing, he’s going to prison, and his lawyer’s going to lunch.
Anything you want, really, given those parameters. There aren’t many strict conventions governing that sort of client interaction.
In the real world, what would typically happen? Lawyer comes to visit WR in his holding cell, lugging a big stack of papers and folders, fires a series of staccato instructions at WR about what’s going to happen at his hearing, and asks a few terse questions. WR doesn’t answer the questions, tells a rambling and probably irrelevant story with about fifteen different characters and a Time Traveler’s Wife chronology, the lawyer doesn’t listen to this story, the two interrupt each other constantly, WR pauses frequently to solicit/listen to/respond to legal advice from his cellmates, and makes a bunch of demands about his defense strategy that the lawyer probably doesn’t even respond to. Depending on the timeline and the severity of the charges, lawyer could possibly have an offer already from the DA, and could tell WR flatly that he ought to take it. Lawyer starts walking away after a couple of minutes, gives his instructions again on the way out, WR makes more demands of lawyer, lawyer doesn’t acknowledge demands.
There’s no reason the young lawyer can’t sit down for an hour and work out the entire story of what happened, answer all WR’s questions, advise him on all the ramifications and possible outcomes, put his mind at ease about the concerns he might have, and internalize his desires and preferences in terms of the strategy going forward, if that suits your story. But the former instance is the more common.
I don’t think that this is always the case—Bail is usually a percentage of the amount needed to bond out, and you don’t usually get it back.
Lets say that bond is $5,000—Bail is 10% of that, so $500. For those who don’t have the $5,000, they can find a bail bondsman who will put up the whole $5,000 for $500 bail. (at that point, the bail bondsman is taking a $4,500 risk).
If the guy bailed out does all he needs to do (i.e. shows up for court) the bond is eventually fully refunded so the bondsman gets back the full $5,000. The bail ($500) is not refunded and is the bondsman’s profit for putting up the entire amount iof the bond.
For a guy who has enough $$$ in the bank to pay for his bond on his own, he can pay the entire bond $$$ for himself and will get the entire amount back when the matter is resolved.
(I hope that is clear—This is how it was explained to me years ago here in Utah)
While you obviously don’t want to be influenced too much by other writers, you might consider reading some of the lawyer-novelists’ work, e.g. Scott Turow, John Grisham, etc. These guys usually put in tons of technical details about how a lawyer thinks and what he or she does–at least, from my non-lawyerly perspective.
The greatest amount of technical detail I’ve seen has to be in John Lescroart’s novels. I’m not actually sure he’s a criminal lawyer, but I really can’t imagine how it could be otherwise. Besides their “legal merits”, they’re also great San Francisco stories.
In New York, the judge can and usually does set different bail for cash and bond – and can require cash-only bail in some cases. The bail set for bond, in my experience, is about double that set for cash.
If you own a home or other property equal to your bail free and clear, will some bail bondmen essentially give you a mortgage on your property, holding the deed until you show up in court? Or are they allowed to do that?
That’s actually very helpful Jimmy. WR isn’t likely to listen to, well, anyone, but that gives me something to go off of.
Ok, just reread what I had.
He actually killed five men and injured more. It doesn’t say how yet, but… He has a home (inherited from his parents - it’s paid off. His parents were murdered. The murder hasn’t been connected to him and is not really relevant, but…). Like I said, he’s never been arrested before, but there’s several suspicious things (his parents, one of his boss’ was killed, but that was probably never reported, he was in an accident and scarred).
I’d kinda like him to plead insanity, but I think he rates more quirky and off-balance than legally insane. The particular fictional city this is set in has a well-known mental institution next to their prison, so even if he doesn’t plead insanity he’ll get moved to the mental hospital.
I don’t know if any of this rambling makes a difference to what would happen (would being suspected of previous crimes affect how things would go?)
Not sure about bail bondsmen, but in at least some states you can cut out the middle man and post a property bond directly with the court. The court holds a hearing to determine the value of the property and to make sure that the person posting it has actual title, and all that, and it proceeds as if you had posted cash. Since it’s a pain in the ass I think generally you have to post a lot more value than the cash bond amount.
Silver Tyger Girl, with 5 murders and a whole bunch of other complications, that first conversation is probably going to be a little more serious and a little less all-encompassing. Most likely, what the attorney (is it a public defender, by the way? You did say appointed so I’m assuming yes) is going to say to WR under those circumstances is 1. this is serious shit and 2. you ain’t going anywhere for a while and 3. what the fuck?! He or she’d want to hit on the nature of the relationship, including confidentiality, WR’s rights in general, and then what’s coming up immediately and in the future- arraignment, a preliminary hearing, pre-trial conference, psych evaluations, all kinds of crap - and tell WR to keep his mouth shut. Maybe find out where some pro-WR witnesses could be located. With a less serious case they might cover everything in one sitting, more or less, but since this thing seems like an obviously huge deal they’d be coming into it prepared to spend a little more time, energy, and resources on it from the ground up.
The attorney would be fucking terrified, presumably. Can I handle this? Am I going to get this guy killed and either way, should somebody else be doing this, since I’ve never handled a murder trial before, much less 5 murders? If this guy is as sick as all that (imagining here that a guy who killed 5 dudes in a brawl and is apparently a mutant has some scary items in his past) do I even want to be able to handle this? Why do all my cases seem unwinnable? Why are all my clients so guilty? Why did I go to law school, again?
In my state, if it’s a death penalty case, the rookie lawyer can’t try it alone. He’d have to have a more experienced guy as at least co-counsel, and in all probability, the rookie would be the second chair.
And in my state, if there were 5 murders…it would probably be a death penalty case. And that would probably make bond moot…if one was set, it would be high enough that he wouldn’t be able to pay it.
Does it mean I’m a bad person if I’m laughing right now?
Yes, Matt, the lawyer, is a public defender.
Okay, so FIVE is probably a bit much. I’m going with this was a bar fight and the deaths were accidental. Something like a guy and four of his friends decided to pick on the white-skinned kinda faggy guy. (And by white, I mean Joker-white, and by faggy, I mean, the victims noticed he dressed well and looked at attractive guys. So, y’know that’s two reasons they might hate him.) And WR is very very lucky and managed to semi-accidentally kill a couple of them and injure the others.
If it’s like two deaths and three injuries, could he claim self-defense? WR got injured as well, although, obviously not as much (currently it’s at bad bruises.)
Would he have any luck pleading insanity? He’s got a bit of amnesia when he’s brought in (can’t remember where he lives, insists he’s nine months old, weird shit like that. He doesn’t remember what happened until Matt tells him.)
Part of the story is the set up Matt as WR’s lawyer (the poor man). I can certainly make Trin (the mentor) as a more major character here.
A question for future stories: I’ve got Matt and WR agreeing on a policy of ‘plausible deniability’. Mostly, WR doesn’t brag about shit he’s done and Matt doesn’t ask unless it becomes relevant. How likely is that?
In other words, if the man has the money, he’ll post his own bail and get that back. If he doesn’t have the cash, he’ll get a loan from a bondsman, get the money back from the court in the end, and then pay the fee for the loan to the bondsman?
Though the rules vary slightly from state to state, a valid claim of self-defense generally requires proof of four elements. First, one acting in self-defense must believe another person intends to use unlawful force against him. Second, that belief must be reasonable. Third, the threat must be imminent. Fourth, the amount of force used must be proportional to the threat.
Yes. This is very common knowledge, even among those of us who are neither indigent nor often arrested. That some Dopers seemed not to know it, reaffirms that there’s an enormous gap in America with “Let them eat cake!” comments confusing political discourse.
(Sorry for the hijack. But I was stunned by the ignorance shown here, and couldn’t help but to relate it to Tuesday’s tragedy.)
So basically, he’s shit outta luck on both, which means either I need to change what he did or make the story less realistic. (He might get by with Guilty but Mentally Ill. Maybe.)
Thanks everybody, you’ve really helped me out. I’d bake you cookies if this wasn’t the internet.
I don’t know about you, but I might buy a self-defense plea when it’s one guy against 5.
I never understand the attitude that someone in a situation where several strangers suddenly attack, and the guy is supposed to step out of reality and into a TV/Movie set where no one gets hurt, and the end result is only a few black eyes.
If I found myself in that situation self-defense would involve slamming people to the pavement, kicking knees, slamming heads, picking up improvised weapons if any, etc until I can get away, or they flee. And there certainly is the chance of someone getting seriously injured or killed. Doing anything less is allowing yourself to become a victim. You don’t know what their plan is, what hidden weapons they carry, etc.
Not a cop or lawyer, but this sounds to me like a pretty clear cut case of self defense. I don’t know that he would even be arrested.
5 guys corner and physically assault a smaller guy, and somehow end up injured/dead? Sounds clearly like they had it coming and he walks.
A prosecutor is going to need something more to even touch that case. Now if the 5 guys see the skinny guy and say, “Gee, you look faggy,” and the skinny guy grabs beer bottles and starts smashing heads, well then that wouldn’t be self defense, and would be prosecutable. So really it depends on the unspecified details.
I don’t think he’s saying that at all. I think he’s giving you parameters so that you know what you need to do to craft the story you want.
The guy doesn’t remember what happened, the situation is murky, maybe witnesses aren’t clear who took the first swing?
Confronted by 5 guys, hurling insults? and preventing him from leaving? Pushing him around? Punching him?
See above. “Hey faggot” doesn’t justify pulling out a glock and pumping lead in their bodies till the clip is empty. Five 6 foot tall, 250 lb linebackers surrounding him and shoving him around does justify kicking them in the nads, knees, and throat and running for the door.
“You’re a fag, maybe somebody out to take you out back and teach you a lesson,” said while the guys are still sitting at their own table - while reprehensible - does not justify going Chuck Norris on them. That same sentence uttered while two guys hold his arms and two more stare down everybody else in the bar who looks concerned, is a much stronger indicator that something is about to happen.
The victim is a 250 lb linebacker and the attacker is a 100lb weakling, pulling out a shotgun and smearing him around the room is not kosher. The victim is 100lb and the attacker is 5 regular joes that each outweigh him by 50 lbs? He would be justified pulling a pistol to “even the odds” and using it, so he would be justified in playing Bruce Lee.