Tuesday, November 18, 2014

The sentencing phase of a capital case is very different from the proceedings before it. The entire objective is to convince the jury that life in prison, not the death penalty, is appropriate.
Charles Ray Hicks Jr.'s family and friends are hoping the jury will see him as they do — as a good but troubled man whose demons led him on a destructive path.
Hicks, 40, of Tobyhanna, will wait to see if the jury will sentence him to death or life in prison without parole after convicting him Friday of first-degree murder in the death and dismemberment of Deanna Null, 36, of Scranton.
Null's dismembered remains were discovered in trash bags dumped along interstates 380 and 80 in Monroe County in January 2008, days after she was last seen getting into a car driven by a male later believed to be Hicks in Scranton. Hicks was charged in early March 2008 after evidence, including Null's severed hands, was found in his home and car.

Monday, November 10, 2014

Eric Frein, accused PSP shooter, has his Preliminary Hearing continued

The preliminary hearing for suspected state police killer Eric Frein has been moved to a later date,
The hearing was scheduled for Wednesday morning in Pike County, but has been pushed back to Dec. 12.
Frein is accused of killing state police Cpl. Bryon Dickson and seriously wounding Trooper Alex Douglass on Sept. 12 when the police barracks was ambushed late that night.
Frein, who police identified as the only suspect on Sept. 16, was captured on Oct. 30 at the abandoned Birchwood Resort in Pocono Township after a massive manhunt that drew world-wide attention.
- See more at: http://www.poconorecord.com/article/20141110/NEWS/141119968/101010/NEWS#sthash.xhrwIpC2.dpuf
The Preliminary Hearing is the first opportunity for the defense to hear the details of the allegations against him/her from the mouth of the accuser and witnesses. It is rare for the Defendant to testify at the Preliminary Hearing as the standard is only "Prima Facie" or "on its face". This means that it appears a crime was probably committed and that the Defendant was probably involved. It is a very low standard to meet, and the District Justice must assume all evidence as offered by the Government is true.

At a Preliminary Hearing the Defendant is not found guilty or not guilty, all that is determined is whether there is sufficient evidence for the case to move forward to the Court of Common Pleas for a plea or jury trial.

If the burden is so low and it is likely the charges will move forward, what is the benefit of a Preliminary Hearing for the Defendant?

First, it binds the witnesses to their testimony. A court reporter will usually be present to take notes of the testimony - which is made under oath. That way, if a witness attempts to change his or her testimony later the Defense can point out how the story has changed.

Second, it provides a clearer understanding of the charges against the Defendant. Specifics including when, where, who and how must be introduced.

Third, it is an opportunity for the Defense and the Government to discuss the case with an eye toward a possible resolution.

Fourth, it is an important step for the Defendant to get a real feel of the process going forward and what kind of issues he or she will face. Defense Counsel has been through these procedures hundreds if not thousands of times, but this may be the Defendant's first trip through the criminal justice process.

There are many other reasons to hold the Preliminary Hearing, of course, but that's a subject for another post.

As to Frein's continuance, this is not unexpected in major criminal cases. Both sides need time to prep for the hearing and to subpoena witnesses. Mr. Frein is held without bail because his case is a capital one (Pennsylvania does not permit bail in capital cases) so there is no prejudice to either side by the continuance. I am sure the defense team is preparing all waking hours for the Preliminary Hearing.

While the evidence may seem overwhelming it is still important to defend the case as best the defense team can. Even if it is admitted that Mr. Frein was the shooter (which has not to my knowledge been admitted) there may be other considerations. For example, if the intent of Mr. Frein is at issue that could conceivably reduce the charge from a capital charge to a lesser count of Murder. Or if he suffers from some sort of mental disability that may disqualify him from capital charges.

There are many reasons to pursue the Preliminary Hearing and to ensure that justice is mete as appropriate in this case. I expect this will be a major media sensation in the coming months (years).

Wednesday, November 5, 2014

Sentencing in a criminal case: Reconsideration.

In the majority of criminal cases resulting in a guilty verdict (barring an appeal or other special proceeding) the final appearance in court is for sentencing of the Defendant. At sentencing the Defendant is permitted to make a statement, as are the victim and other interested parties. Normally, a pre-sentence investigation report is prepared by the probation office which has a recommendation for sentence based on certain statutory factors.

Following sentencing, in addition to appellate rights, the Defendant has the right to file a Petition for Reconsideration of Sentence within 10 days. This Petition goes back to the same Judge, so why would a Defendant want to ask for the sentence to be reconsidered? There are several possible reasons.

1. The Defense did not have available some documentation or important information to present to the Judge at the time of sentencing. The Judge's decision whether to review this additional documentation is discretionary, but in some cases could be important. For example, if the Defendant was unable to present evidence showing he or she had a current job at the time of sentencing and the Judge wasn't convinced by the Defendant's statement a Petition for Reconsideration could be filed asking the Judge to take notice of documentation proving that assertion (such as pay stubs or a letter from the employer).

2. The Court suggests an alternative sentence for which information to determine eligibility is not currently available. For example, if the Court sentences a Defendant to imprisonment but suggests that the client might qualify for work release or house arrest. Additional information to verify employment or home status might be required.

3. The Court or Probation computes the recommendation incorrectly. Sentencing in Pennsylvania is a three-step process. Offense Gravity Score, Prior Record Score, and any applicable Mandatory Minimums. If for whatever reason one of these steps is miscalculated the sentence can be corrected if the Petition is filed in time.

In a future post I'll cover what other factors are relevant at the time of sentencing as well as the appellate rights of the Defendant.