Many movies and TV shows prominently feature emotionally-charged courtroom showdowns. But most Cobb County prosecutions do not involve trials. Statistics vary, but plea bargains probably resolve about 95 percent of these matters.
Plea bargaining was almost unheard of in the days of the Founding Fathers. But around 1900, the practice suddenly gained widespread acceptance. The country was growing quickly back then, which meant that crime rates expanded quickly as well. Taxpayers were unwilling to pay for new judges, courts, and jails, so something had to happen.
Many people criticize the plea bargaining system, mostly because almost everything happens behind closed doors. Furthermore, this system basically gives prosecutors the same powers as judges. Nevertheless, it’s the system we have, and it is not going away anytime soon.
More importantly for our clients, plea bargaining keeps defendants in the dark. The prosecutor and defense attorney negotiate in a different room, and the defendant must sit in the waiting area. This dynamic makes a scary process even scarier. So, it’s important to have some idea of what’s going on when your case goes to court.
Bail and Pretrial Release
Pretrial release is a very important component of a successful criminal defense. That’s why the Eighth Amendment guarantees reasonable bail in criminal cases.
Without pretrial release, the presumption of innocence basically becomes a presumption of guilt. People who are in prison cannot participate in their own defenses in any meaningful way. Furthermore, many Cobb County jurors assume that if a person is in jail, that person must have done something bad.
Reasonable bail is also good for personal reasons. People who are in jail cannot work or spend time with their families.
Typically, the Sheriff’s Office uses presumptive bail amounts in most criminal cases. That amount might be $750 for a simple misdemeanor and more than $1,500 for a felony. If the defendant cannot afford that amount, an attorney may request a bail reduction hearing. At that hearing, the judge reconsiders the bail amount based on a number of factors, including the defendant’s:
- Ability to pay,
- Threat to the community,
- Likelihood of flight,
- Threat to witnesses, and
- Connections to the community.
After the hearing, the judge typically either reduces the bail amount outright or imposes additional conditions in exchange for a reduction. For example, the defendant might have to wear a GPS monitor and essentially be under house arrest.
Generally, the defendant may post the entire bail amount in cash or hire a bonding company to write a surety bond. Cash bail is usually refundable once the case is resolved.
The Charging Instruments
In a few serious felony cases, like murder or rape, a Cobb County grand jury hears the evidence and determines if there is probable cause to file official criminal charges. Since the grand jury only hears one side of the story (the prosecutor’s version), these bodies indict in over 90 percent of the cases they consider.
Typically, however, the prosecutor simply files an information. This document is the primary pleading in a criminal case. It’s also the first line of defense.
The evidence must match the pleadings. If there is a fatal variance between the pleadings and the proof, the judge may throw the case out of court. Assume Ted is charged with stealing Jim’s property. Unless Jim testifies that he owned the property, a jury cannot convict Ted. Or assume Ted is charged with possessing more than one ounce of marijuana, which is a felony. If laboratory tests conclude that the marijuana weighed less than one ounce, Ted cannot be convicted of a felony. Prosecutors must refile the case as a misdemeanor and start over.
Grammar and spelling errors are common as well. In these situations, prosecutors sometimes use a legal loophole called idem sonans to save the case. Idem sonans is Latin for “sounds alike” and Legalese for “close enough.” If Ted’s last name is Smith but the information says Smyth, the prosecutor is probably okay.
A defective information is just the first hurdle. There are several more to go before the case can go to trial.
Many cases involve a motion to suppress. An attorney may ask a judge to bar evidence that police illegally seized, a confession which they illegally obtained, or an arrest which they illegally made. If the judge grants the motion, all subsequent events are fruit of the poisonous tree. They are invalid as well.
There are other pretrial motions as well. For example, the court may lack jurisdiction. Some parts of the Atlanta suburbs are in Fulton County and others are in Cobb County. If prosecutors file charges in the wrong county, they must generally start over. Less frequently, the judge may be biased against the defendant or there are other indications that the defendant cannot receive a fair trial in Cobb County.
Pretrial proceedings also usually include plea negotiations. During these negotiations, an attorney brings up any substantive defenses that the defendant has, such as insanity, self-defense, and so on. These defenses give the lawyer negotiation leverage. That generally means a more favorable outcome.
If the prosecutor and defense attorney cannot agree on a plea deal, the case goes before a judge. However, a plea might still be possible and might be in the defendant’s best interest. So, an attorney could make an open plea. That’s literally throwing the defendant on the mercy of the court. This tactic sounds risky and is risky. Other times, an attorney might do a slow plea. The defendant pleads guilty, but a jury determines punishment.
If there is a trial, the prosecutor must prove every element of the case beyond a reasonable doubt. Basically, this phrase means that the prosecutor’s evidence must be so overwhelming that the defendant cannot possibly be innocent. The reasonable doubt standard also applies to any enhancements, such as a hate crime.
After the case is over, an attorney’s job may remain unfinished. Many defendants can ask the judge for early discharge from probation. Others are eligible for record expungement or sealing. These post-conviction proceedings make life a lot easier after defendants pay their debts to society.
Contact an Experienced Lawyer
Criminal cases are easier to face if people have a rough idea of what to expect. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle cases in Cobb County and nearby jurisdictions.