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The law provides a myriad of strategies and defenses available to the accused. It is the job of the criminal defense lawyer, like those in the Law Offices of Gary L. Rohlwing, to discover and select the best one depending on the facts and circumstances of the case. In all jurisdictions, an accused is innocent until proven guilty. Proof beyond reasonable doubt is needed to tilt the scales of justice against the accused. To sustain a guilty conviction, there must be moral certainty on the part of the judge and the jury that the accused committed the act and that it amounts to a crime. The following are some of the tactics and strategies available to the accused: Self-defense or defense of others Self-defense is an affirmative defense to justify the acts of the accused’s use of force against another. This is also known as the castle doctrine. Self-defense can be availed of when there is real and imminent danger on the person or property of a person or his relative or a third person. Doctrine of necessity As the name itself would imply, the doctrine of necessity is invoked when the accused committed the act in order to avoid a greater harm. However, it must be proven by the defense that there was indeed a necessity for the act. Double jeopardy Another criminal law principle that is recognized in a lot of jurisdictions is the principle of double jeopardy. This principle provides that a person cannot be tried twice for the same crime. This principle is often enshrined in a country’s constitution or a statute. It prevents the State, with its unlimited resources, from pursuing the accused relentlessly. Statute of limitations The statute of limitations, on the other hand, dwells on the “prescriptive periods” of crimes. This criminal law doctrine provides that an accused can no longer be prosecuted after a certain number of years. However, certain crimes do not have prescriptive periods, which means that an action may be filed against an accused no matter how many years have passed since its commission. An example of which is murder. Mistake of fact In criminal law, there are two types of mistakes that can be committed: mistake of law and mistake of fact. A mistake of law cannot be used as a defense because of the maxim “ignorance of the law excuses no one from compliance therewith.” Meanwhile, mistake of fact can be used as a defense. For example, theft of an item the accused believes to be his is not considered as theft. Violation of the rights of the accused A violation of the rights of the accused can be a cause for the dismissal of the case. Police misconduct or a mishandling during custodial investigation, or any part for that matter, can be a cause for the dismissal. Examples of police misconduct include tampering and faking of evidence, coercing of witnesses, and using excessive force on the accused. These are just a few of the many defenses … Continue reading
Diplomacy is a lost art both in science fiction and the real world. The Star Trek and Star Wars movies deal with the results of failed diplomacy: armed conflicts and wars. In the real world, we see more and more failures of diplomacy in our country. One example is our fractured political process where Democrats and Republicans want to bully each other instead of engaging in diplomacy to solve pressing problems. If you try to represent yourself after being charged with a crime, you will have to be a diplomat on Planet Defendant. You will have to diplomatically interact with a prosecutor, a judge, and court personnel. If you go to trial, you will have to diplomatically interact with witnesses and a jury. “Diplomatically interact” means that you must advocate on your own behalf without angering, confusing or alienating anyone. Before trial, the most important person is the prosecutor. The prosecutor decides what to charge and whether or not to offer a plea agreement. The prosecutor is a human being with feelings like everyone else. Bullying or blowing your top in person or via email is not diplomatic. You run a huge risk that the prosecutor will take offense and refuse to change a plea or offer a plea at all. The prosecutor’s offense probably would spill over and infect your trial resulting in a guilty verdict with a stiff sentence. Another important area of pretrial diplomacy concerns the judge. The judge may issue pretrial orders such as requiring your appearance at court dates or requiring you to be fingerprinted. You may find these orders silly, inconvenient, and/or confusing. That’s no excuse to ignore them. You must diplomatically obey the judge’s pretrial orders. It may be tempting to vent your feelings on court personnel. Don’t do it! Court personnel are there to process defendants and paperwork through the criminal justice system. They are not therapists or friends. You must deal with them diplomatically. Interviewing witnesses before trial requires an intense level of diplomacy. It’s intense because every witness is unique and has his or her own attitude towards you and testifying. Some witnesses want to help you and don’t mind testifying. Others don’t want to be interviewed and don’t want to testify. You will need all the diplomacy you can muster to deal with these witnesses. At trial, the judge will expect you to perform as if you really are a defense attorney. Your diplomacy before the judge will be on display to the jury and the prosecutor. The prosecutor will probably do something in his or her presentation of the case that will irritate, anger, and/or confuse you which will require more diplomacy on your part. The jury ultimately is the most important because they will decide your guilt or innocence. As with witnesses, every juror is unique and has his or her own attitude towards jury duty and your case. You must diplomatically balance your dual roles of defendant and defense attorney before the jury. Diplomacy when representing … Continue reading
Standard probation as part of a felony sentence in Arizona is very common. Arizona enacted The Uniform Conditions of Supervised Probation incorporating Evidence-Based Principles on January 1, 2011, to be used in all superior courts. The information below is from the Arizona Code of Judicial Administration implementing the Uniform Conditions of Supervised Probation which is found at https://www.azcourts.gov/Portals/25/pdf/6-207Uniform%20Conditions.pdf Some of the Uniform Conditions of Supervised Probation are: Maintaining a crime-free lifestyle by obeying all laws and not engaging or participating in any criminal activity; Not possessing or controlling any stun guns, tasers, firearms, ammunition, deadly or prohibited weapons as defined in A.R.S. § 13-3101; Reporting any contact with law enforcement to the Adult Probation Department within 72 (or ___) hours; Submitting to search and seizure of person and property by the Adult Probation Department without a warrant; Reporting to the Adult Probation Department within 72 (or ___) hours of sentencing, absolute discharge from prison, release from incarceration, or residential treatment and continue to report as directed; keeping Adult Probation Department advised of progress toward case plan goals and comply with any written directive of the Adult Probation Department to enforce compliance with the conditions of probation; providing a sample for DNA testing if required by law; Providing the Adult Probation Department safe, unrestricted access to my residence and receiving prior approval of the Adult Probation Department before changing my residence; residing in a residence approved by the Adult Probation Department; Requesting and obtaining written permission of the Adult Probation Department prior to leaving the state (___ county); Actively participating and cooperating in any program of counseling or assistance as determined by Adult Probation Department, or as required by law, given assessment results and/or my behavior; signing any release or consent required by the Adult Probation Department so the Adult Probation Department can exchange information in relation to my treatment, behavior and activities; Not possessing or using illegal drugs or controlled substances and submitting to drug and alcohol testing as directed by the Adult Probation Department; Obtaining written approval of the Adult Probation Department prior to associating with anyone I know who has a criminal record; not knowingly associating with any person engaged in criminal behaviors; Seeking, obtaining, and maintaining employment, if legally permitted to do so, and/or attend school; informing the Adult Probation Department of any changes within 72 hours; Being financially responsible by paying all restitution, fines, and fees in my case as imposed by the Court. I understand, if I do not pay any restitution in full, the Court may extend my probation. Discretionary terms of probation begin at term 16 which when checked means that the probationer is not allowed to consume or possess any substances containing alcohol. Other discretionary terms are: Hours of community restitution; Days in jail; No contact with victim; Complying with sanctions based on my behavior such as community restitution hours and days in jail in addition to hours and days already ordered; Abiding by the attached special conditions of probation: intensive probation, … Continue reading
Salvatore “Sammy the Bull” Gravano was released early from federal prison in September 2017. He will be on federal parole for the rest of his life. The following sources provided the information below: “Mafia Turncoat Gets 20 Years for Running Ecstasy Ring” by Andy Newman, New York Times, Sept. 7, 2002; “Ex-Mafia hit man “Sammy the Bull” Gravano now out of prison”, by Walter Berry, Associated Press, Sept. 22, 2017. Mr. Gravano, a former member of the Gambino crime family, confessed to murdering 19 people. He became a government informant in 1991 and helped convict 39 mobsters. He served 5 years in prison for the murders. When he was released, he entered the federal witness protection program and moved to Arizona in 1994. He left the program in 1995, wrote a book, and owned a restaurant and swimming pool installation company in Phoenix. In 2000, he was arrested in connection with an Ecstacy trafficking ring in Phoenix that reportedly earned him about $500,000.00 per week. He was also accused of buying 40,000 Ecstacy pills from a drug gang in New York. He was supposed to be sentenced on the New York federal charges on September 11, 2001, but it was delayed because of 9/11. He was sentenced to 20 years in federal prison on September 6, 2002. By that time, he had already pled guilty to ten Arizona felony charges. On October 30, 2002, He was sentenced to the following prison terms on the following charges in Maricopa County Superior Court with credit for time served of 979 days. All of the prison terms were made concurrent with his New York federal prison term: Conspiracy to Commit the Sale of Dangerous Drugs. 19 years. Participating in a Criminal Syndicate. 19 years. Illegal Enterprise. 15 years. Offer to Sell or Transfer Dangerous Drugs, to wit: MDMA, also known as Ecstasy. 19 years. Money Laundering in the Second Degree. 15 years. Use of Wire or Electronic Communication in Drug Related Transaction (2 counts). 7.5 years. Misconduct involving Weapons. 7.5 years. Possession of Marijuana. 2.25 years. Money Laundering. 15 years. The Court found that he had been convicted of Racketeering in CR 90-1051 (S-2), United States District Court, Eastern District of New York. An inmate datasearch on the Arizona Department of Corrections website revealed that Mr. Gravano finished serving his sentence on June 7, 2016. He had no history of disciplinary appeals. If you or a loved one are facing several Arizona felony drug charges, you need an experienced attorney to defend you. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation. Some of My Practice Areas: DUI/DWI Law Felonies Misdemeanors Drug Crimes I am located within a few minutes from the Glendale Court House My office is at: Law Offices of Gary L Rohlwing 7112 N 55th Ave Glendale, AZ 85301 (623) 937-1692 http://www.criminal-duiattorney.com/ Click here for the directions on Google.
In December 2016, The American Friends Service Committee published a report entitled A New Public Safety Framework for Arizona: Charting a Path Forward. The Report gave an overview of the Arizona sentencing laws that led to high rates of incarceration compared to other states. One cause is mandatory sentencing according to A.R.S. § 13-702 through 707. These laws have shifted the power of discretion in determining sentences from judges to prosecutors: “The incentive is for prosecutors to stack as many charges as possible against the defendant in order to convince them to accept a plea to a lesser charge rather than take their case to trial. Trials are lengthy and expensive. Plea bargains are the “grease in the wheels” of the criminal justice system, ensuring that cases are adjudicated quickly. By bringing a high number of charges against a defendant, the prosecutor can credibly say that if the person were to take their case to trial and lose, they would be facing an extremely long sentence. Thus, the vast majority take the plea that is offered to them. In 2010, plea bargains accounted for 95.6 percent of all felony criminal convictions in Maricopa County; only 1.6 percent of felony criminal cases filed went to trial, according to court records.42 “Sentencing is nearly all done by plea bargaining instead of before a judge in open court,” said Pima County Public Defender Robert Hirsh, “The deal is always driven by the risk of a higher sentence.” Visit the original PDF here. Another cause is harsh sentences for drug offenses. The Report noted: “In general, Arizona applies a much longer sentence for lower amounts of both possession and sales. For example, to qualify for a charge of possession for sale of marijuana, an individual would have to have 50lbs of the substance in Texas and 100lbs in Nevada. But possession of just 4lbs in Arizona is enough to charge for this category of “drug sales,” and can result in a minimum sentence of 4 years in prison. Yet, in Nevada, that same charge—triggered by having 25 times more marijuana— would earn the person just one year of prison time. Arizona’s drug laws treat the lowest-level sellers, most of whom are addicts, like major players in the drug market. Many drug offenses, including possession with intent to sell, are Class 2 felonies regardless of the circumstances. This is just one felony class level below first-degree murder. Because of this, non-violent addict-sellers can get prison terms longer than some violent offenders.” First seen published on https://afscarizona.files.wordpress.com/2014/03/a-new-public-safety-framework-for-arizona-december-2016.pdf Arizona sentencing laws are rigid and harsh. You need a defense attorney with decades of experience in negotiating favorable plea agreements for clients in order to shift the balance of power away from the prosecutors. Check out the practice areas from Gary L. Rohlwing Attorney At Law