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 Legal FAQ Please note: This is a now outdated list of Frequently Asked Questions (FAQ) written by R2K defendants along with answers supplied to the best knowledge of those who prepared this FAQ. Obligatory disclaimer: We are not lawyers, and thus cannot give out legal advice. For all legal questions you need to contact a lawyer. The following information was collected from various sources and we cannot be held liable for it. We urge defendants to contact their lawyer with any questions. [editor's note: this information was compiled by the a1 NY-area working group, and was current as of 9/27/00.] Section III: Status Hearings
What will happen at the status hearings? We must meet in Room 406, and it seats from 100 to 150 people. There are over 100 defendants that are supposed to appear. Discovery (exchange of evidence) has not begun on any of the cases, so there won't be the usual discovery component at the listing. Defendants from the 16th and the 30th are all supposed to appear on the 30th. There will be a judge, and defendants will have to decide whether they want to go to trial or take ARD. Since there will be a judge, the decision to take ARD or go to trial will be a binding decision. You may not have to show up at your status listing. Bradley Bridge from the Public Defender Association received a letter from Head Judge Louis Presenza (it was also cc'd to the D.A.) that says you may have a lawyer appear on your behalf at the status listing. In order to do that, you have to notify your lawyer or public defender and have them appear. If you are a Jane or John Doe, you have to give up your name and social security number if you want your lawyer to appear on your behalf. R2K Legal is encouraging people to appear anyway, so they can make decisions about their case and support others. Also, it would be good to have as many people as possible at the Friday and Saturday night solidarity meetings.
What should I wear? How should I act? Judges expect order in the courtroom, and they expect people to stand when they enter the courtroom. There may be a local court rule forbidding T-shirts with political messages. The typical wardrobe for a defendant ranges from suits to dress-casual to working clothes. For people who do not have fancy clothes and would like them, Philly activists will probably stockpile a choice of clothing. The decision of what to wear and how to act is a political decision that has implications for one's own case and for others' cases. Seemingly disrespectful clothes or behavior can bother a judge and hurt one's own case, but comrades who do want to be noticed will not be as dangerously positioned if they are joined by many others. This is an especially important consideration with respect to people whose permanent appearance has become stigmatized by the mainstream, and who have no choice but to look out-of-the-ordinary in the courtroom. In the courtroom, your right to free speech is balanced by the judge's discretion to grant you due process. This means the judge may limit your speech if she feels it will limit your right to a fair trial. However, the judge's discretion does not extend past the doors of the physical courtroom. A judge can exclude people from the courtroom if she decides that they are a nuisance. A pro se defendant (a defendant who defends herself without a lawyer) may only be excluded on these grounds. If this happens, the court may appoint a stand-in attorney who makes objections on behalf of the absent defendant, but that is an extreme case that probably could only happen in a full-blown trial. A judge--on her or his own discretion--may accuse a person of contempt of court, which is a crime that can result in fines or jail. A Commissioner who is not a judge probably cannot charge someone with contempt of court.
What is a plea offer? In order to avoid the expense and uncertainty of bringing a defendant through a trial, the prosecution often offers a defendant a chance to admit guilt of a lesser crime than the one they're charged with. This is the plea offer. The District Attorney has broad discretion in deciding what to offer, and may or may not take into account all sorts of extraneous issues (including agreeing to certain behavior or to give information on certain people or organizations). If you plead guilty to the plea offer, you are sentenced by a judge, and the judge is heavily influenced by the suggested punishment that was agreed to in the plea bargain, but she is not forced to issue the suggested sentence.
How much time do I have to decide whether to accept a plea offer? Often a plea offer is left on the table for several days so a defendant can think about it. There is no set rule, and nobody knows what the DA will allow. The R2K Legal Team and the public defenders are trying to get the DA to leave the offers open until all defendants are presented with their options.
If I reject the plea offer, will I be offered one again? Usually in Philadelphia, once the initial plea offer is rejected, no other plea offer is made. This is not a law, and nobody knows whether these conventions will be followed in our case.
What if I plead guilty to a crime that I did not commit? Most plea bargains are for different crimes than what defendants are accused of, and it is not considered lying if you plead guilty to a crime you did not commit. It is important, however, to make sure that the plea bargain leaves you fully immune to prosecution of any other crimes you may be accused of. This may mean bargaining for a wide description of the place and time of the events that are at issue in the agreement to take a plea. A plea of guilty to any crime has ramifications on your possibility of suing the police department for false arrest. If you were falsely arrested but plead guilty to anything, then the state will use your guilty plea as proof that you were not falsely arrested. However, your guilty plea or conviction has no legal impact on your right to sue on the basis of excessive force and/or denial of due process either on the streets or in jail.
What is "Accelerated Rehabilitative Disposition" (ARD)? As an alternative to pleading guilty or not guilty, a defendant is sometimes given a chance to enter Accelerated Rehabilitative Disposition (ARD). If an ARD ruling is accepted, all charges are dropped dependent on certain guidelines. When a defendant accepts the offer, the court suspends its usual rules and begins an off-the-record discussion between all of the parties. The discussion ends with the judge proposing a set of steps that the defendant may take in order to have charges dropped (which would leave her a clean record) and avoid jail time. Examples of proposed sentences include community service, classes, probation, and fines. The proposed ARD sentence in our cases is that we would not get arrested for one six months (arrests do not count if they do not result in a conviction within one year) and a total fine of $435. If the defendant does not accept the proposed sentence, then the ARD is cancelled. If the ARD is cancelled, the case returns to where it was beforehand, and the prosecution is not allowed to use any evidence it discovered during the ARD talks. If the defendant accepts the proposed sentence then they must perform the required tasks before their record is expunged. Once the sentence is completely satisfied, the charges are stricken from your record and you are not considered guilty of anything. If the defendant fails to follow the judge's orders, the case is revived where it left off before the ARD began. If the state is aware of felony convictions that you have within the past seven years, you cannot be offered ARD. So far, no RNC defendants have been excluded on the basis of criminal record, and almost all of us have been run through their computers. Like a guilty plea, ARD has ramifications for civil suits, but the ramifications are only slight. Acceptance of ARD hurts your chances of winning a claim of malicious prosecution, but that claim is only one piece of a false arrest civil claim. You can still claim to have been falsely arrested and take part in a civil suit.
Can they drop my case without my consent? The prosecution can drop the charges at any time in any cases that it wants.
What happens if I plead "Not Guilty"? If you plead not guilty, you will be given a trial on the charges (See IV.1). In the short term, you will probably be given a new date for a status hearing where the parties must submit their evidence. It may be possible to argue that you do not need to show up in person for the next hearing.
What if I am a Jane/John Doe? You have a right to remain silent if you believe that giving up information will increase the likelihood that you will get prosecuted. You do not have to be guilty of anything to invoke this right; you only have to fear that answering a question will lead to prosecution of you. If you think that giving up your name would lead to prosecution, then you can justifiably withhold your name. Your right to remain silent is not waived if you begin to answer some questions. You may always change your mind and become silent again. You cannot be penalized for invoking your Fifth Amendment rights, and unfortunately, it seems that some lawyers did not press this point at prior proceedings. Either way, you may press this right, and you may want to stress to your lawyer that you should not have to be pressured into giving any self-incriminating information. Jane and John Does should be aware that they are likely going to be asked to give over their names at the status hearings. It is unclear whether the prosecution has the right to request fingerprints at that time without a search warrant.
Who will represent me at the hearing? If you have not fired your public defender and/or hired a lawyer, then one of the public defenders will represent you at the hearing. If you will be represented by a public defender, you should call the PDA to discuss your case (see I.4).
Can I represent myself? A defendant has a right to represent herself at a hearing and/or in court whether or not she has a lawyer. The right to self-representation is only limited by the judge's initial assessment of your competence to self-represent and her continued discretionary power to remove you from the courtroom if she feels your presence inhibits continuation of the trial.
How do my actions at the status hearing affect other misdemeanor defendants? This is a very important and heavily debated question that you should discuss with other defendants and with non-defendants. It is possible that rejecting ARD and the plea deal will increase the burden on the prosecutor, and other defendants would benefit from a frazzled prosecution. It is also possible that a ruckus in the courtroom would be bad for some defendants, and all of these possibilities need to be discussed. Generally, if you can come to a decision--as a group--with the others at your status hearing, you have a higher chance of having your actions effect everyone equally.
How do my actions at the status hearing affect felony defendants? The decision on whether or not to accept a plea or ARD at the hearing may or may not affect the situation of the felonies. Some people with legal experience think that the District Attorney won't be affected on felony cases if the misdemeanors agitate on behalf of the felony defendants. Others feel that not accepting a plea or ARD could put additional pressure on the DA and the judges that would press them to resolve the felony cases more quickly or leniently. We have to focus our energy in support of the felonies, and the question is whether that support will be more effective inside or outside the courtroom. Also different people would like different support--some would like to lay low, others would like a lot of press and public pressure. This is a question that should be discussed with felonies about what kind of support they would like.
Do I have the right to make a statement during my hearings or at trial? You have the right to allocution (a statement) at sentencing. You also have the right to speak during your trial. You do not necessarily have the right to make a statement at your status hearing. However, folks have been making such statements individually and as groups during the recent status hearings. |
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