Pretrial Defenses, Bail Bond, and Court Procedure with Examples

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Now, in our last video, we discussed a system for keeping you up-to-date, informed and frankly one so that you will not lose your mind a subsystem Coping With Stress during the criminal prosecution. Next, we are going to be discussing legal defenses and because legal defenses is so broad and so case-specific, I can only go into generalities and we are going to break it into two parts. Pre-trial and Trial because there are types of defenses that are appropriate before a trial and there are types of defenses that are only appropriate during a trial. Let’s go over that and start with pre-trial issues.

Now, one of the most important pretrial issues, and why you should contact legal counsel immediately if there is an investigation or if you or someone you love is arrested is because there is going to be the issue of bond. Bond can be handled at two separate times. One is at first appearance, which is held normally 24 hours after someone is arrested. That is usually the best time to handle a bond issue. However, because it is a brand-new case, the judge responding is a duty judge, the prosecutor responding is usually not the prosecutor on the case, you cannot see them on the camera because all you see is the judge’s face. You do not see that in the room with the judge, there is a whole bunch of other people. But for those reasons, sometimes you have to do a bond hearing. It may be about bond conditions, getting relief from having a SCRAM alcohol monitor. For example, getting a relief from a condition where you cannot have access to the internet. In the modern world, that is pretty difficult. So, what we often suggest is that the court order that access to the internet is allowed but prohibited access is not allowed and that the criminal defendant has installed what is known as a type of filtering software such as Net Nanny. So, these are bond issues and those are things that are held long before trial. These types of hearings may be short, they may be long but either way, they are held pretty far in advance of trial. So, that is an example of a defense issue because if you are paying money for a monitor of some type and there are many different types of monitors or testing of some kind, drug testing, alcohol testing, this can be expensive. And we are very mindful of that, we are not trying to run your bill up. So, that is an issue that would come under the category of bond and bond conditions. These things are handled before trial, in the pre-trial phase of the case. Additionally, there is the issue of discovery.

Now, in earlier videos, you have heard me refer to a rule 3.220(b) Notice of Discovery, what comes back, a state attorney checkoff list, copy of the charging document, offense report, supplemental reports, Intoxilyzer reports in DUI cases, DNA reports perhaps in a murder, sexual battery, firearms testing and gun cases, blood spatter analysis in violent crime cases, on and on and on and on. These are all discovery issues. Here is a growing one that people do not think about. Facebook. Often, we have to do electronic or digital discovery through what is known as a specific notice of discovery. And sometimes, the state says, “No, we are not required to produce that”. And we respond, “Oh, yes, you are”. And after having won a major sexual battery, a case that involved the false allegation between an employee and a business owner, basically she was looking for money, we found that she was looking for money in her Facebook private messages.

And here is something you need to really think about. I know a lot of people who will not give their phone number out to somebody that they have just met and they will go, “No, no, no. I do not want to give you my phone number because”, and they are concerned about privacy. This same person, and it might be you, will sit there and have Facebook as the application installed on their phone and they will have a messenger installed on their phone. And then, when digital discovery occurs – and this happened just yesterday. I have a case where there are over 470 separate files and the first one is Facebook records. Every like, every private message, every comment, every group joined, a list of every friend, everything, Facebook keeps all of that information, it was over a 1,000 pages of data from Facebook. So, if your case involves electronic discovery, that is part of the pre-trial phase and that can be quite intense involving a lot of hearings, a lot of effort because let me tell you, when you got one file out of 470 that has over a thousand pages, that is a lot of reading.

So, sometimes, people say, “What are you doing on my case”, and the answer is I am reading a whole lot of information because if you go one that’s over a thousand pages, two full rims of copy paper, you can imagine that the other 469, they may be shorter but that is a lot of information that has to not just be read but we have to go through all of that very, very carefully looking for evidence that is admissible and looking for evidence that is inadmissible. Something to keep in mind when it comes to evidence because a lot of the battle in the pretrial phase is what evidence is admissible. Just because there is evidence against you or someone you love, that does not mean it is necessarily admissible evidence that can be placed before a jury at a trial. This is what a lot of the pre-trial battle is over, evidence.

So, we have covered bond issues, we have covered discovery including electronic discovery. There is also what are known as motions to continue because quite often, discovery is not finished by the time court is scheduled. We will keep you informed on that. And we might need to use a motion to continue. This is why we often ask clients to sign a waiver of speedy trial. Now, no one in the modern era wins a speedy trial violation. I have not seen one, I mean just to be blunt about it. Back in the day, unethical prosecutors would literally keep people in jail longer than the maximum sentence for the crime simply by not bringing the case to trial. Well, this is how the speedy trial rule was created, but in the modern era, we just do not have people languishing in jail longer than the sentence they would serve. It just does not happen. It could happen, it probably will happen but I have not seen it. So, that speaks volumes considering I have been practicing for a very long period of time.

So, we ask most of our clients to sign a waiver of the speedy trial because we do not want a speedy conviction. A speedy trial without all of the evidence being discovered and finding out all of the strengths and weaknesses is a recipe for a disaster. Well, it is also a recipe for a disaster in your personal life if every time you turn around, you are having to run down to the courthouse, explain to your boss or your employees, if you are a business owner, why you have to take the day off for what is essentially a pointless court proceeding where you have an agreed upon continuance that could be obtained by written pleadings and an order to the judge. I mean I cannot tell you how many times I have seen somebody go to the courthouse, sit around for hours, get called down to the defendant’s podium, and this happened recently in Santa Rosa County in the Milton Courthouse. The judge said, “Mr. So and So, this case has been continued eight times while you are asking for a ninth continuance”, and the client was standing at the defendant’s podium. And the attorney said, “Well, your Honor, you continued this last time because we needed to depose a witness who had disappeared and resurfaced, we deposed that witness. They gave us the names of three more people that we need to take their sworn statements before the court, depositions”. The judge said, “Oh, okay. No problem. State”, and looked over to state with a question mark in the voice because the state was nodding the entire time and that is why the judge telegraphed how the judge was going to rule. And the state said, “That’s correct, your Honor. No objection” and sure enough, the judge granted that particular motion to continue.

What struck me was this poor person is standing at the podium and I know that their lawyer drugged them to court having to take a day off eight times previously and this was the ninth time. If you are out of state, oh my gosh, is that expensive and a disaster. So, anytime we can do something with written pleadings instead of an actual court appearance that is more time effective, more cost effective and less stressful for you and your loved ones. So, we do that.

Now, in addition, when it comes to legal defense, there are many different types of motions that lawyers can file. The two most important in my opinion that can absolutely put a stake through the heart of the prosecution’s case are the motion to dismiss and the motion to suppress evidence for being unlawfully obtained. In order to determine whether or not you have a motion to dismiss, a lot of discovery has to be done because frankly, there are only four basic grounds for a motion to dismiss and three of them are in “that will never happen” category. Things like the state have violated and immunity agreement, never see it. The governor has pardoned you, yet the state is trying you, never seen it. Another one would be double jeopardy.

Well, I have actually seen that a couple of times but that was, we’re talking like 1991, haven’t seen it since. Basically, when you have a motion to dismiss, what you are saying is that the undisputed facts do not give rise to a prima facie case and therefore, the case should be dismissed as a matter of law because there are no additional facts. Now, if the state disagrees, they can file something known as a traverse. So, as a result, a motion to dismiss is very rare when compared to a negotiated dismissal, which is in the category of plea bargaining. Far more common for what is known as a “Dispositive Motion”, meaning it disposes off the case, is a motion to suppress.

Now, an important caveat. Sometimes, a motion to suppress will not drive a stake through the heart of the vampire. It will wound it. And that wounding may result in a more favorable plea bargain because a particular piece of evidence is ruled inadmissible and the state is sitting there going, “Well, we can go forward, we can take this case to trial but without this that might be a problem. Perhaps the substitution of charge would be a better course of action to settle this case, perhaps a reduction in charge, the two are separate”. So, these things affect plea bargaining, both these types of motions as do discovery motions generally.

And then, we also have the issue of pretrial depositions. You have to pay for a court reporter to be there, usually $125 to $150 for the first hour, around $95 for the second hour. And what the court reporter does is they sit there and have this funny looking little keyboard where they are typing in code that they have to go to school and learn literally everything everybody says, word for word verbatim. They also record it. Well, if you want a copy of the written transcript, that is going to have a per page cost. So, deposition should only be undertaken in cases where it is necessary. Now, I get that some of my colleagues feel the necessity to practice defensive law or to put on a dog and pony show, “Oh, we got to take depositions”, and what they are really doing is showing you how hard they are working. I take a different view. Depositions are expensive. I have seen cases where the defense lawyer walks out of the deposition room while I am waiting to go in and sure enough, the defense lawyer coming out, they are looking like this, and the prosecutor is skipping and dancing, writing on their file, adding new charges. That is a disaster.

So, depositions should be targeted and your legal team will have internal discussions on this. We will do staffings on it to decide whether or not we recommend depositions. So, if depositions are recommended, we are going to have to serve a subpoena in many cases to compel attendance and there are different rules for lay witnesses and different rules for police officers and sometimes, witnesses will show up without being served a subpoena. And that is a cost saving right there. But there is also a fee attached for each subpoena to be served. So, these are important considerations and then, finally, there is medical discovery. Now, what is the medical discovery? When we think of medical discovery, we think of civil cases, personal injury cases, medical malpractice, things of that nature.

Medical discovery is often things like mental health records. Medical discovery can be medication records, medical discovery can be brain imaging, particularly if we are doing mental health mitigation, which is something that I have really focused on since 2005. It does not mean we ignore the defense of the case but quite frankly, sometimes, medical discovery does cross over for mitigation into the pretrial phase. And even if we are going to ultimately use medical discovery for sentencing and mitigation of sentence, it still is done during the pretrial phase of the case rather than the trial of the case. And that brings us to our next segment where we are going to be discussing the trial.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.