No Game of Chicken: The Default is Always to Plead Not Guilty to Criminal Charges

Nobody is Playing Chicken by Pleading NG!
from history.org

Recent headlines have Andrea Sanderlin, AKA "Pot Mom" captured as the "anti-hero" and as giving up after she had initially plead NOT GUILTY to the Charges. The news loves drama but accuracy is another matter entirely. Sadly even many "law" sites and blogs have taken this same route to achieve ratings or rankings. When I read some of the stuff out there I think no wonder the public is so misinformed and confused.

"Initially, Sanderlin pleaded not guilty to the charges."

"It's not uncommon for defendants to plead not guilty as a strategic move."

"A "not guilty"-plea strategy is essentially a game of chicken -- a game that this mother of three apparently wasn't willing to play."
                                      From Findlaw.com


Who writes that entering a Not Guilty Plea is a Game of Chicken or a Strategic Move?

Any criminal defense attorney or anyone (clerks, bailiffs, staff) that spends any time in Court will tell you that pleading NG is what you do initially. It is NOT a strategy or a GAME. It is standard. It is the default setting.

What sense would it make to plead guilty to everything alleged by the government? 

Allegations and charges come about by the probable cause standard. This is a very low (read minimal) standard of proof. This is most certainly nothing that we would want to put people in prison for.

The Truth May Hurt but it is Liberating!
From mormonmatters.org

THE TRUTH BEGINS WITH 3 THINGS

People plead NOT GUILTY to the charges against them everyday. In fact, if you say nothing or don't have an attorney at the time of your initial appearance the Judge by default will ENTER a plea of NOT GUILTY. This follows our Constitution, it is aligned with your fundamental rights as an American.

1. You start every single case with a presumption. It is called the Presumption of Innocence.

2. Secondly, the government has the burden, their hurdle is to Prove you guilty.

3. Lastly, this proof must be Beyond a Reasonable Doubt.

Coming into Court and being arraigned on charges is being apprised of what you are facing. These charges are usually the highest (most severe) possible. The prosecution (District Attorney) will stretch every iota of evidence to grasp at the harshest of the criminal statutes. This is normal. It allows them room to move down (negotiation room) and/or to tailor or offer a sentencing recommendation to the Court (Judge) in the future.

Who comes into Court and Pleads Guilty?

First off, no one in New York State facing criminal charges, especially Felony level criminal charges is going to be allowed (by a Judge) to even consider pleading guilty without legal counsel. Recent case law has decided that this is "ineffective assistance of counsel" and a reason to grant you a vacating of your plea (taking it back). You MUST have counsel to help you when CONSIDERING a criminal plea.

Secondly, any attorney representing you will look at discovery (government proof) and discuss it with you as a matter of ensuring and assuring what they do have against you (as to proof). This will generally not be provided immediately (at the arraignment) by the prosecutor.

Guilty Pleas are a Big Deal.

Generally, Way before someone comes in and enters a Plea of Guilty a defense attorney is also given assurances by the Judge and/or the DA as to a sentencing recommendation.

This maybe to a specific sentence, like 2 weeks in county jail, or straight probation, or a conditional discharge, or no greater than the PSI (pre-sentence investigation). Every serious case (felony level) will have a mandatory PSI. Some misdemeanor cases will also have PSIs. This is a review by the county probation department which will then make a recommendation to the Court and the DA of what they feel is an APPROPRIATE sentence for this person based upon their entire life history.

So back to this Game of Chicken thing?  

As I sometimes tell my kids, it just doesn't work that way!

If you have questions about your DWI/DWAI charges or other traffic violations within the Finger Lakes region you can either call me or send me an email.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 95% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 425 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607.229.5184

Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

New York DWIs and PSI Final Thoughts

On this beautiful Ithaca morning I have a few lingering thoughts concerning NY PSIs for DWIs.

The PSI (pre-sentence investigation) report is NOT a public document. Disclosure is limited to the defendant, defendant's attorney, the judge, and the prosecutor. In fact the report is usually held by the Court and can only be viewed by counsel and not copied nor circulated. Although I have had a number of Courts send me the report for viewing prior to sentencing this is more the exception than the rule.

Probation officers act as an agent of the Court. Their role is to assist the Court (the judge) in determining a fair and appropriate sentence. In certain criminal cases (other than DWIs) a client may opt for jail time in lieu of a lengthy period of probation. In NYS generally misdemeanor probation is three years and felony probation is five years. If Probation is recommended for a DWI it is usually not negotiated to a term of jail. DWI Probation (supervision) may be in addition to a term of jail but not in exchange for a term of jail.

The Purpose for probation in DWI cases is to assist the defendant in obtaining and maintaining sobriety. This specific and necessary purpose, namely to monitor (supervise) the defendant from drinking (any consumption of alcohol) or being in the presence of alcohol. A violation of probation by drinking, being around alcohol, or being in alcohol serving establishments generally results in a six month jail term. Sobriety is the goal. Treatment, classes, and rehabilitation are the means to reach and maintain an alcohol free life. With DWI probation this is taken very seriously, and there is no wiggle room for special events or for "I did not know" type excuses.

Understanding the New York DWI PSI (Pre-Sentence Investigation) Part Two

The PSI is a process that should be taken very seriously. Your honesty with the probation department is paramount. They will be checking and verifying any and all information provided. Sometimes referred to as "collaterals," as in collateral sources of information, the contact phone numbers and references you provide to the officer must corroborate with your statements to the officer. Lying about your previous employment, drinking, and drug use will negatively affect your report. Your being accurate and truthful with the probation officer will go a long way to ensure a favorable report.

First impressions count. Showing up on time for your appointment, being clean, neat, and ready to cooperate will start your interview off on the right foot. You may be asked to go for a drug/alcohol evaluation and/or a psychiatric evaluation. In certain situations, more than one probation interview may be necessary. Also in certain situations the probation officer may feel it is important to have a one on one discussion with some of your family members prior to writing his report.

The Pre-Sentence Report contains the following sections:

1. A Cover sheet. This has the basic facts about you and the charges.

2. Prior Criminal History. Your attitude about past behavior (whether you have accepted full responsibility for your actions) and current behavior are very important. If you have pled guilty now is NOT the time to downplay your guilt or your actions. The officer will be attempting to see if you are owning up to this crime, and how you came to be in this situation.

The two most important R's are: REMORSE and RESPONSIBILITY

3. Your Social History, and current circumstances.

Stability of home life (past and present), family and friends (support), education, employment, use of drugs and/or alcohol, involvement in any treatment/rehab programs, and mental health history and counseling.

The OVERALL EVALUATION of the officer will be based upon the following:

a. Your attitude

b. Your behavioral habits, traits, and tendencies

c. Your future interests, goals, and plans

d. Your ability to cope with your past problems and your current charges

e. Your current and past associations with people (who you hang out with)

f. Your family relationships (your support system)

ARE you STABLE?

How STABLE are you?

What can probation predict in terms of your future behavior?

In other words are you a danger to yourself or others?

Do we have a cause to be concerned?

Do you require supervision?

At the end of every report is a pink sheet entitled, " Departmental Sentence Recommendation with Supporting Reasons." NOTE: This comes from the Probation Officer's supervisor, and not from the probation officer.

Your attorney can contact probation and provide information about you as well. In instances where PSIs are ordered I commonly provide the Court, the Prosecutor, and the probation officer with information concerning my clients to ensure the best outcomes.

In the end, being up front and candid with probation is the best strategy overall.