Interviewer: What’ll happen at the first court appearance then, after the arraignment?
The Defense Attorney, District Attorney, and Judge Will Conference about the Case
Stuart Austin: For the first court appearance, after the arraignment and depending on whether it’s a misdemeanor or it’s a felony charge, normally what will occur is there will be a conference with the district attorney and with the judge. There’ll be more information given about how the crime is charged, who charged it and the paperwork involved.
The Defense Attorney Will File an Application for Your Release on Bail If You Are Still in Custody
If you’re lucky, your defense attorney should get the paperwork on the first court date, if not then he can file a demand. Following that, he’ll receive even more paperwork. Once he gets a look at the paperwork, if you were held on bail, he can make an application to get you out on bail. This is based on his review of the paperwork, for example, there were extenuating circumstances to the crime.
He may also look to see whether your case will be placed into another court, such as a diversion court or one of the drug treatment courts or one of the community courts.
Your Attorney Is Working on Many Aspects of Your Case during This Court Appearance
During the first court date, it doesn’t seem as if much is happening sometimes, but in essence, it’s all behind the scenes. But those are the court dates, in essence, where the defense attorney is determining what the crime is, whether the prosecution can initially prove their case and whether he or she wants to file a motion to dismiss. The attorney is also deciding whether he or she wants to put the case immediately to trial, or whether they want to send an investigator to talk to somebody to take pictures of some crime scene.
Will You Be Subject to Release Conditions Imposed by the Judge?
Interviewer: Well, besides either being assigned bail or being held, are there any other release conditions that people will be subject to at their arraignment?
The Judge May Order That You Attend an Alcohol or Drug Evaluation or Educational Class Pertaining to the Type of Crime You Are Accused of Committing
Stuart Austin: The judge can say, “I’m not going to set bail on you, and as a condition of your release, if you’re charged with a drug crime, I want you to undergo an alcohol evaluation or a drug evaluation.” An individual who is charged with a theft crime could be made to attend what they call a STOPLIFT program. In essence, it’s a program regarding theft and the reasons people steal and is an educational program.
Your Attendance at One of the Programs Is Mandatory if Ordered by the Judge
Interviewer: A person would have to attend one of those programs before they are convicted? Is the attendance mandatory?
Stuart Austin: Correct, and that is what the judge is saying is that I am releasing you, and as a condition of your release, that is why I am decreeing that you have to do this. They are not convicting you in advance of a crime; instead, they are imposing attendance at one of the programs as a condition of your release.
If You Are Later Exonerated, the Courts View Your Attendance at the Court-Ordered Program as a Civil Penalty
Now the problem is and this is a common argument: What if the person isn’t guilty, it just looks that way because of paperwork or circumstantial evidence and he’s later found not guilty? Haven’t we punished him in advance?
Turning in Your Passport and Monthly or Weekly Visits to a Probation Officer Can Also Be Conditions of Release Imposed by the Judge
The courts have found, in essence, that that’s not a punishment as much as it is a civil penalty. It’s not open to that kind of thing. In some situations, the judge may say, “I want to make sure you’re not going to run away. I’d like you to turn in your passport.” That prevents an individual from traveling out of the country. In addition, the judge might ask you to see a probation officer once a month, just to check in because he’s giving you a longer court adjournment and wants to make sure that you’re still going to be here. That is another way of checking on you informally.
Restraining Orders are Usually Conditions of Release for Individuals Charged with Domestic Violence
Interviewer: Now for domestic violence, would a release condition be a restraining order?
If You Own Guns, It Is Typically Ordered that You Store them in a Local Police Precinct for the Duration of the Restraining Order
Stuart Austin: Correct. With a restraining order, in essence, what they do is they say that you have to stay away from this person or this place, this house, a locale that usually pertains to the alleged victim. It would include his or her place of business. Also, the condition of a restraining order that the court also usually sets is that, if you have a gun permit, they will ask you to take your guns and bring them to the local precinct for safekeeping. During the course of the domestic violence case, they want to try to safeguard everybody.
Interviewer: It sounds as if it’s important to have an attorney, even at the arraignment stage. The courts themselves urge people to retain an attorney because of the seriousness of the situation, even for low-level crimes?
An Attorney May Help You Avoid Incarceration Following the Arraignment
Stuart Austin: Yes. The real issue for people is if the attorney can make the difference between getting you out of jail and, in essence, you staying in jail, or going into jail, to me sometimes that’s more important than the outcome of the case. If an individual goes to jail and they can’t make bail because the judge has set a high bail or set conditions that they can’t meet, it almost doesn’t matter what happens in the case three months down the road to some extent, because they’re going to be in jail.
If You Are Released Pre-Trial, You Can Assist Your Attorney with Your Defense and Continue to Fulfill Your Responsibilities, Such as Remaining Employed and Be Participating, Parent or Spouse
They’re going to lose their job. They’re going to lose, possibly, their house and family connections. During your first court appearance, if there’s any chance of a judge setting bail on you or setting these release conditions on you, it’s really very important to make sure that you are in an optimal situation in the time before your trial. This way, you can do what you can to fight the charges to the best of your ability by talking to witnesses outside and by helping your attorney. You will also be able to continue to work and continue to pay your mortgage and all your other day-to-day responsibilities.
Interviewer: Do you ever get calls from people already in jail and they to ask you to try to modify their release conditions, such as arranging a lower bail?
Stuart Austin: There are many people who are in jail, who believe that their bail should be significantly lower and they are correct. There are also some of them who believe their bail should be a lot lower and they are not correct. I do have quite a few people contacting me about trying to modify their bail. I usually help people whenever I can because I believe it can’t hurt to try.
After Your First Court Appearance, Your Attorney Will Continue to Conference with the District Attorney and the Judge if It Is Possible to Work out a Beneficial Plea Bargain
Interviewer: After your arraignment and your first court appearance, what happens next? What do you prepare your clients for?
Stuart Austin: Depending on the circumstances of the case, the case will usually be adjourned again, so there could be more conferences if we think there’s going to be a plea bargain worked out. You may be trying to just work out the best disposition for your client.
Your Attorney May File a Motion to Dismiss if the Case Has No Legal Merit
If it looks like there’s really no beneficial plea bargain that’s going to be worked out, the attorney might file a demand for more information, which will entail more paperwork. The attorney could file a motion to dismiss the case if there is a problem, either legally with the case or practically with the case. Your attorney will file a motion in front of the judge.
It really, as I said, depends on the case. After the first one or two court dates, then as the case starts going into a mode of whether we’re going to plea bargain and that’s we’re just looking for the best deal, or whether we’re going to take an adversarial position and try to fight the case and not look for a deal on the case, but look to show a legal problem with the case and eventually a dismissal or a trial or a hearing for suppression.