Since 2007, the probation population has leveled off slightly in Georgia. More troubling, however, is the rise of punitive surveillance. Essentially, for many probationers, personal information is no longer personal. Instead, the county tracks probationers’ location, biometric, and other meta-data. The law imposes almost no restrictions on this activity. Worse yet, many counties contract these activities to private companies.
Speaking of restrictions, probation agreements in Cobb County and elsewhere often contain obscure clauses which allow peace officers to search probationers’ dwelling almost at random. Officers don’t need a warrant or even probable cause. They only need some free time and an inclination to invade someone’s privacy.
A little over half of sentences in Cobb County involve probation. So, if you are convicted of a crime, court supervision will probably be in the mix. Usually, prosecutors and probation officers try to cram restrictive conditions, like the aforementioned punitive surveillance provisions, down a defendant’s throat. A Marietta criminal defense attorney continues representing defendants after the judge’s gavel falls, to set them on the path to success instead of failure.
In general, it’s better to avoid trouble altogether than to deal with the consequences it brings. Avoiding a criminal conviction and possible probation in Georgia usually involves a procedural, substantive, or affirmative defense. That’s a lot of Legalese, so let’s break it down.
A procedural defense is a police officer’s failure to follow the rules. These rules include the aforementioned search warrant requirement. Unless officers have warrants based on probable cause, or a narrow search warrant exception applies, prosecutors cannot present seized drugs, weapons, or other contraband in court.
Most search warrants rely on paid informer testimony, and most people will say almost anything for love or money. So, in most cases, the probable cause is inherently shaky.
A substantive defense is a lack of evidence. Prosecutors must establish guilt beyond any reasonable doubt. That’s the highest burden of proof in the law.
Many criminal cases, especially violent crimes and sex crimes, rely heavily on lineup identifications. If, as is often the case, the witness and defendant are different ethnicities, the well-established cross racial identification phenomenon comes into play. For example, when a White person sees ten Black people who are all about the same age, weight, and height, all ten look alike.
Affirmative defenses include consent, coercion, entrapment, and self-defense. Once again, these defenses are especially common in sex crimes and violent crimes.
A fatal weakness in the evidence could lead to a not-guilty verdict at trial or a complete pretrial dismissal of charges.
Extended court supervision isn’t for everybody. For example, some people have physical conditions, like mild disabilities or brain injuries, which make it difficult to be at a certain place at a certain time, especially on bad days. Probation-related appointments, like monthly reports and community service obligations, aren’t medical appointments. They cannot be changed if the defendant’s circumstances change.
In these cases, and others, a brief confinement might be better than lengthy probation. That’s especially true if, as is usually the case, the jail offers an alternative sentencing program. For example, most Georgia jails offer weekend programs. The defendant checks in Friday night and checks out Sunday night. That’s three days of credit for less than forty-eight hours behind bars. Jail sentences pass quickly at that rate.
Punitive surveillance, unlimited search warrant, and other restrictive conditions are usually buried somewhere in the paperwork. Most defendants, and many Marietta criminal defense lawyers, probably don’t know they are there until it’s too late.
Almost everything is negotiable during the pre-probation process. Truthfully, most probation officers don’t particularly care about most conditions. They’re often willing to move weekly meetings to bi-weekly meetings, omit the blanket search warrant provision, and so on.
In other areas, probation officers dig in their heels. These conditions include staying out of trouble with the law and active supervision. These are also two of the most common probation violations. More on that below.
Unfortunately, lawyers don’t have much leverage in these situations. If the probation officer refuses to budge, the judge almost always sides with the probation officer.
We mentioned two of the most common probation violations above. Possession of a prohibited substance is up there as well.
All three violations are almost ridiculously easy to prove. Failure to report violations usually just require a date book. Defendants either appeared or they didn’t. Usually, no excuse is acceptable. Subsequent arrest violations just require an arrest report. Occasionally, a Marietta criminal defense lawyer can argue the arrest was unlawful. Sometimes, this argument convinces a judge to defer proceedings until the new criminal case runs its course.
Prohibited substance violations are in a special category. Prosecutors must only establish possession by a preponderance of the evidence, or more likely than not. That’s a much lower standard than beyond a reasonable doubt, which is the usual standard in criminal cases.
It may be hard to contest a motion to revoke. Fortunately, several possible resolutions are available in these situations.
A brief jail sentence as a condition of reinstatement is one option. As mentioned, sentencing alternatives are usually available. Additionally, by the time a judge rules on the motion, most defendants have already served several days. Time served might satisfy most or all of a reinstatement sentence.
If the defendant received deferred disposition at trial, the judge could also enter a guilty verdict and end the deferred disposition provision. Then, probation continues as before.
In the right circumstances, probation is an excellent alternative. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. After-hours, virtual, and home visits are available.