By Rachel Bussett
I decided early in my legal career that I did not want to be a criminal defense attorney. I made this choice not because I couldn’t imagine helping people charged with crimes or because I assumed they were guilty as charged, but because the responsibility that comes with representing people in these areas places a heavy burden on my heart.
With every case I take on, a piece of my heart and soul is invested in representing that client and achieving the best possible outcome. Many clients start as friends and family and those that started as strangers often end up becoming close friends and family.
Some lawyers feel that these kinds of close attorney/client relationships are unprofessional but for me they represent the importance of what I do. So when I represent an individual charged with a crime, I carry the heavy burden of knowing that the work I do not only impacts their life but can be the difference in whether someone goes to jail for a significant period or time or whether they get to live freely with their families.
This week I sat second chair as in a rape case. The second chair attorney takes notes, watches the judge, jury, witnesses, and opposing counsel to see how they are all reacting to the lead attorney. The second chair’s role is to be the eyes and ears of the attorney asking the questions and to read the room.
As an experienced trial attorney, I don’t sit second chair very often anymore unless it’s to teach and observe one of my associates who is getting their wings to fly on their own.
Only a small percentage of my practice involves directly representing individuals charged with crimes so I prefer not to be in the lead attorney in serious crime cases like rape.
Yet helping people accused of committing crimes is a large part of what I do on a day to day basis. At first blush those two statements seem contradictory but they really are not as criminal conduct can have legal ramifications that effect many areas beyond actually being charged with a crime.
In the rape case that I appeared on this week, I am the lead attorney in a related deprived case where the state has removed the children from the home. The allegations in the deprived case arose out of the alleged rape. In cases like these, I generally elect to represent the client in the family or DHS proceeding while referring the criminal portion of the case out. I do this for two reasons. First, I don’t want that emotional responsibility of the severe criminal charge and secondly conflicts often arise in these kinds of cases that can result in one attorney doing all things having to step down and the client has to start over at zero with a new client.
Our hearing for the week was the preliminary hearing which is when the district attorney’s office puts on evidence to establish that the case should move forward to trial. The burden of proof at the preliminary hearing is very low. All that must be proven is that there is probable cause to believe that a crime occurred and that the defendant committed the crime.
A probable cause is just an adequate reason to think something happened and that a particular person did it without regard to the likelihood that someone actually did it. It’s kind of like your mother yelling at you for leaving the toilet seat up and causing her to fall in when using the restroom because you’re the only male in the house at the time she fell in. For probable cause to exist it doesn’t matter that two hours earlier there were five men in the house, or that you only arrived home when your mother was walking into the restroom. The question is simply whether given the facts and circumstances surrounding what happens the evidence supports that a crime occurred and that you are the probable suspect.
Oklahoma’s criminal justice system is also a good example of the differences in procedure between a federal criminal charge and a state criminal charge. This is because Oklahoma charges by Information instead of by a grand jury indictment which is how criminal charges are filed under federal law. The Fifth Amendment to the U.S. Constitution provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger…”
This right has not been enforced onto state governments through the incorporation doctrine the way other U.S. constitutional rights have been. The Oklahoma Constitution does not have the same provisions for a grand jury and it is only utilized in specific circumstances.
In Oklahoma, criminal charges are initially filed by the elected district attorney after being presented to him/her by the police force. The District Attorney “DA” decides whether it’s reasonable to conclude that the defendant acted illegally and files the charge. Thereafter, the client and attorney may spend several months or sometimes more than a year in the preliminary investigations and negotiations before the preliminary hearing is held.
In many instances, cases are resolved at this early stage in plea negotiations and the DA never has to put on the minimal evidence to sustain probable cause. After several conferences for the DA and the defense attorney to meet and negotiate, if a resolution is not reached, a preliminary hearing is held.
At the preliminary hearing the DA puts on evidence to support that there is probable cause that a crime has been committed. Some argue that this is like a mini trial but I disagree.
The DA only has to put on enough evidence to support probable cause. This burden is much lower than “preponderance of the evidence” which is the lowest burden of proof that a party must sustain to recover in a civil case.
In preponderance of the evidence a prevailing party must show that it is more likely than not (i.e. at least 50% likely) that the defendant did the acts alleged in order to recover money damages. I can’t tell you what the percentage is for probable cause but it’s something less than 50% and it’s just a reasonableness standard. This is a very low standard.
Once the court finds that there is sufficient evidence to support probable cause, the court can conclude that the DA has met its burden and conclude the hearing. The defendant is then bound over for trial and a new judge is assigned to the case to avoid any bias that might have arisen in the preliminary stages. As the case proceeds to trial the DA only has to give the defendant’s attorney all the evidence against them 10 days before trial.
In federal court, criminal charges are filed after a grand jury indictment. To obtain a grand jury indictment the government attorney presents the evidence and witnesses to a grand jury of up to 23 people. These proceedings are not open to the public and defendants and their attorneys do not get to be present or know the evidence presented.
If the grand jury finds that probable cause exists to support charges, then an indictment is issued. The federal prosecutor must have substantially completed the investigation in order to present the evidence to a grand jury.
Further, in federal court, the right to a speedy trial laws result in criminal trials occurring within 60 days of the grand jury indictment being handed down. A defendant must generally waive their right to speedy trial in order to extend trial past 60 days. This is helpful for a defendant as it prevents a case from lingering in the system for years, but on the other hand pushing a case through the system too fast can result in a defendant not being represented properly.
Under the grand jury system, allegations have typically been investigated for months or years before charges are filed. Alternatively in the state court system, charges are often filed within a matter of days after something happens because the police and the district attorneys do not have to be prepared to present the same evidence to sustain a charge at filing.
Federal criminals are also a lot more likely to have no or low cost bail while awaiting trial while state defendants are often subject to higher bail amounts. Sentencing in federal court is also based on guidelines and the defendant’s criminal history. That is not a significant factor in the Oklahoma courts which may result in defendants charged under state law receiving much longer sentences than in federal court.
Oklahoma state criminal charges can take years to move through the system. In large cases, with poor defendants, the individuals often spend these years waiting in jail. If the defendant is found not guilty, they don’t receive any money or compensation for that time spent waiting in jail.
Oklahoma also has the highest rates of incarceration in the U.S. and in the world for women and spends more annually on the prison system than on education. Conversely in federal court, defendants can move through the process in a matter of months and are more likely to await trial living their ordinary “free” life.
You can learn more about the federal criminal process at www.justice.gov/usao/justice-101/steps-federal-criminal-process. Which system do you think is better is better for our citizenry?
Rachel Bussett is an Oklahoma City attorney. She can be reached at 405-605-8073.