Atlanta Entering Auto Attorney

by Mary Agramonte

Being arrested for any crime can be a stressful experience. Being arrested for Entering  Auto or Theft by Taking can be even more stressful based on the harsh consequences and the idea of facing a felony charge. If you or your loved one has been arrested for Entering Auto in the Atlanta area, it is important to know your rights and to have a team of lawyers behind you from the very beginning fighting for your freedom.

In Georgia, Entering Auto is a felony offense which carries one to five years in prison. If the person arrested for Entering Auto already has a felony on their record, then they could be facing a lengthier sentence. You can be charged with Entering Auto even if you never stole anything from within the vehicle. The crime is complete soon as you enter the car with the intent to commit a theft or felony. Unfortunately, it is not a defense that the owner of the car gave you permission to go in the car initially.

However, there is good news. If you have been arrested for Entering Auto, there are defenses based on lack of intent to commit the theft, and inability for the State to prove beyond a reasonable doubt. There are ways to avoid the felony conviction as well as the prison time. The judge has the discretion to even sentence you as a misdemeanor for this charge, so you need qualified attorneys ready to present your case in the most favorable way possible.

If you or a loved one has been charged with Entering Auto, it is imperative to get a team of criminal defense attorneys on your side. Having Atlanta Entering Auto attorneys can help you beat the case completely, or minimize the jail and fines. There are defenses to Entering Auto, so do not plead guilty without first talking to an Atlanta Entering Auto attorney. Call us today for a free consultation and know your rights as it relates to an Entering Auto case. 404-581-0999

The “Safety Valve” Alternative to Mandatory Minimum Sentencing in Federal Court

by John Lovell

I recently wrote about mandatory minimum sentences in federal court. There is a means to be sentenced below the mandatory minimum sentence, the “safety valve” provision.

First, let me tell you what the safety valve is not: It is not a first offender statute similar to the Georgia statute where, when certain conditions are met, there is no conviction on the record of the beneficiary. A federal conviction, with rare exceptions, remains a federal conviction for life.

Safety valve is only available for certain narcotics related crimes.

There are two benefits obtained from safety valve in United States District Court: 1) A two level reduction in the sentencing guidelines, and 2) “Permission” for a United States District Judge to sentence below the guidelines.

There are five requirements to be granted a safety valve:

(1) No more than 1 criminal history point under the sentencing guidelines (you will need to consult an attorney as calculation of criminal history points can be tricky. For instance, one could be on probation for shoplifting a $25 pair of sunglasses while committing the crime charged in federal court and not be eligible for safety valve);

(2) The accused “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;”

(3) The “offense did not result in death or serious bodily injury” to anyone;

(4) The accused was not a leader or organizer of the offense; and

(5) the person told the prosecutor all that he knows about the offense.

The last requirement can be tricky. The person seeking safety valve must meet with the Assistant United States Attorney (AUSA) and, usually, one or more agents (the case agent) and tell them everything they know about the case. Technically, it is not “cooperation,” but, in practice, it often becomes cooperation. The AUSA and case agent are permitted to ask questions. They may ask for names, locations, and endless other details. If, at sentencing, the AUSA tells the judge that you were not truthful, and the judge believes the AUSA, safety valve must be denied. Of course, a zealous attorney will assist in proving that the statement was truthful where facts demonstrate that it was truthful. However, the best practice is to not participate in the safety valve unless you are prepared to tell the complete truth.

The best advice: Seek the advice of an attorney with extensive experience in federal court.

Terroristic Threats in Georgia

by Mary Agramonte

Many people are surprised to learn that you can actually be arrested for threatening to kick someone’s a**. There tends to be an assumption that such a statement would be covered by our country’s First Amendment on free speech. However, this is not the case. Threatening to commit any crime of violence can result with you facing serious criminal charges in Georgia, as it can land you with an arrest for Terroristic Threats.

Under O.C.G.A. §16-11-37(b), a person commits the criminal charge of Terroristic Threats in Georgia when he or she threatens to commit any crime of violence against another. Depending on the nature of the threat, the crime can be charged as either a misdemeanor or a felony.  For example, if you tell someone you are going to hit them, it is a misdemeanor; if you suggest you are going to cause the death of someone, then it is a felony. It does not matter if the threat is by phone or in person.

In Georgia, a misdemeanor Terroristic Threat charge carries with it probation, fines, classes, community service, and a criminal history that cannot be undone. If you have been charged with felony Terroristic Threat in Georgia, you can be punished with even higher fines. Additionally, you can spend one to five years in prison, and be considered a convicted felon for the rest of your life.

Given the harsh consequences associated with an arrest for a Terroristic Threats in Georgia, it is important you have a criminal defense firm on your side who is not afraid to fight for you. There are defenses to Terroristic Threats and ways to avoid criminal conviction for it. Call 404-581-0999 to schedule your FREE CONSULTATION with a Georgia Terroristic Threat attorney today.

The Dangers of Eyewitness Testimony in Georgia

A number of cases have been overturned in recent years due to newly discovered DNA evidence. Many of those convictions were based on false eyewitness identifications. Most of the eyewitnesses did not lie, they just “misremembered.” That is the danger of this sort of testimony because the witness may be genuinely unaware of the inaccuracies in their testimony.

One underlying issue with eyewitness testimony is a misunderstanding of how memory works. The act of remembering is more akin to putting puzzle pieces together rather than retrieving a video recording. A memory can be distorted over time or from misinformation provided by third parties. For these reasons, it is critical to document one’s memory as close in time to the actual event as possible. If you have eyewitnesses that you believe can be beneficial to your case, then you should always get them to write down as many details as possible while the memory is fresh before time and outside influences can distort that memory. For police purposes, the identification process should be videotaped if possible, and the witness should be told that the suspect may or may not be in the lineup.

There are a multitude of issues that could result in a false identification. Recognizing those issues in your criminal case is something that may require a second set of eyes. Feel free to call our office for a free consultation at 404-581-0999.

Jury Selection in Georgia

Jury Selection or  to use the legal term “Voir Dire” (meaning  in Georgia the questioning of prospective jurors by a judge and attorneys in court) is very similar to the process in other states and federal courts. The judge asks certain statutorily required questions such as, “can you be impartial?” and jurors rarely indicate anything contrary to what the judge is asking. Later, the prosecution or “State” asks a series of questions that are usually scripted and have very little variation based on the particular charges in the case. Finally, the defense gets a chance to ask a few questions.

While most defendants would love to know what jurors will find them not guilty, the best case scenario in most counties is finding jurors who are willing to be fair and listen to all of evidence before making up their minds. Most judges and prosecutors will object vehemently when defense attorneys try to educate jurors as to a particular defense or interject specific facts into their minds prior to the start of the trial. You have to find a way to gain open and honest answers on the limited questions you are allowed to ask and find a way to really weed out the jurors that you do not believe can give you a fair shot. That is the art of jury selection. It requires the ability to read the prospective jurors and recognize when a juror is being untruthful. When that happens, you cannot attack that juror and accuse them of lying. You have to politely inquire further into their position and attempt to gain further insight into why they feel the way they do. You can’t change the way someone feels, but hopefully you can find out how they truly feel before you let them on your jury. If you plan on going to trial, you need an experienced attorney to ensure that you do not lose your case before the first piece of evidence is presented.

The Commerce Clause to the United States Constitution and Criminal Law

I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

What are your rights to a search of your dorm room or locker in Georgia?

As a student, what rights do you have to contest the search and seizure of drugs or alcohol on campus? Whether you are in high school or college, you still have limited rights to privacy that can only be overcome in accordance with school policies or a search warrant if law enforcement is involved. The Fourth Amendment prohibits unreasonable searches and seizures but those protections typically do not extend to actions taken by school officials. However, if the facts of your case show that the school officials violated their own handbook and/or acted in a law enforcement capacity, then there could be a valid defense to your case. There is no bright line rule, but you can contact us at 404-581-0999 for a free consultation to discuss the specifics of your case and decide whether hiring an attorney is in your best interest.

Mandatory Minimum Sentences in Federal Court

by John Lovell

If you’ve been charged with a federal crime in the state of Georgia, many federal crimes require a “mandatory minimum” sentence. Mandatory minimum sentences reflect a “one-size-fits-all” form of justice. It is the legislative and executive branches of the government imposing arbitrary sentences without information pertaining to the person convicted or the specifics of the crime. Mandatory minimum sentences strip the judge hearing the case from deciding what is a just and fair sentence.* Mandatory minimum sentences range from 2 years to life without parole. Families Against Mandatory Minimums has compiled a list of crimes and mandatory minimums. These mandatory minimum sentences are not just unique to federal crimes in Georgia, but are mandatory all across the country.

There are some ways to avoid mandatory minimum sentences. First and foremost, don’t commit a crime that exposes you to man mins! Obvious, right? If you are charged, seek an attorney who is familiar with federal law. I have seen many an attorney counsel a client to plea guilty, unaware of the mandatory minimum sentence. I have seen this where a life sentence was imposed. There are few circumstances where a person would voluntarily agree to be sentenced to life in prison, particularly for a drug offense.

Also, it may be possible to negotiate a plea to a charge that does not require a mandatory minimum sentence.

Finally, learn whether an exception applies that allows the judge to NOT impose a mandatory minimum sentence. Next month I’ll write about the most common exception under federal law, the “safety valve.”

*One of many examples: I had the privilege of representing a young man on appeal who received a mandatory life sentence for delivering drugs. There was no dispute but that he was a “mule.” I did not represent him at trial but read the transcript of the sentencing hearing where the conservative, George W. Bush appointed judge, described the mandatory sentence as “savage, cruel and unusual.” I filed a federal habeas motion and was able to get the young man’s sentence reduced to a term of years where he will, in the coming years, be free and not lose his life to a mandatory minimum sentence.

Sentencing Guidelines in Federal Court in Criminal Cases

Perhaps the biggest difference between defending a criminal case in federal court versus trial courts in Georgia is the sentencing guidelines. The federal sentencing guidelines manual is complex, it includes over 500 pages of rules and formulas.

Often, to determine whether to go to trial, a person accused of a federal crime must be informed of the likely outcome of a plea and of trial. This is how one makes an informed decision. I have practiced as a federal prosecutor and private attorney since 2000. I have seen changes that have significantly affected the sentencing guidelines. The most significant change came in 2005 when the Unites States Supreme Court found that the guidelines would no longer be deemed mandatory (the “Booker” case). Prior to Booker, judges were largely compelled to follow the guidelines. Federal judges lacked discretion to determine what is a fair sentence. Lawyers were left to argue for a sentence within a narrow “guideline range.”

Today, federal judges have discretion and the lawyers advocating for clients are critical. A lawyer who has mastered the guidelines must first strive to place a client at the lowest possible guideline level. Then, the skilled attorney can argue for a “reasonable sentence” below the sentencing guideline range.

If you’d like to read the federal sentencing guidelines for yourself, they may be found at https://www.ussc.gov/guidelines.

The sentencing guidelines are one of the two most critical factors in determining what a sentence will likely be. The other is mandatory minimum sentences. I will discuss that in my next blog.

Trials in Federal Court

by John Lovell

For my first blog with Peach State Lawyers, I’ll address trials in federal court. Because every client is cloaked in a presumption of innocence, I start with the view that the government has made an error in charging my client. My concern is based on my experience – the last three cases I tried in federal court resulted in acquittals for all or the most serious charges. The three trials resulted in acquittals for 1) murder and a gun possession charge, 2) two counts of attempted murder and a parallel gun possession charge for each count, and 3) four counts alleging the production of child pornography.

All three clients knew they were innocent of these charges and told me they wished to go to trial. After evaluating the government’s cases, I agreed with them and prepared for trial. The murder acquittal is an example of how we defend serious charges. In this case, we had more than a mere attack on the credibility of the government’s witnesses, we put up a case for innocence that was stronger than the federal government’s case. Together with my investigator, we discovered the person who committed the murder. We found witnesses who saw the murder and they were more credible than the “snitches” who testified with hopes of getting themselves out of trouble.

Not every case is appropriate for trial. However, a skilled attorney advises a client whether the case is triable.

When searching for an attorney in federal court, ask direct questions such as:
• How many cases have you handled in the courthouse where my case will be heard?
• How many trials have you represented a client as first chair (not as an assistant)?
• What were the outcomes of the cases you tried?

If an attorney tells you of terrific outcomes, ask to see proof. It is your duty as a person defending his freedom to find out which attorneys are marketing geniuses and which are skilled trial attorneys (some are both). The attorney focused on marketing may not have the skills to represent you in court. Even if the case is not a case that should be tried, you do not want an attorney negotiating for you who has a reputation of avoiding trials. You want an attorney who brings credibility to the table! After all, this may be the most important decision you make.