Friday, July 25, 2014

Talking In The Police Car Can Get You In (More) Trouble

Most people realize from watching TV shows that police cars contain a dash camera and that the officer carries a microphone on his person. What is captured by these devices is often used by the prosecutor as Exhibit 1 at trial. What most people do not realize, however, is that the police car contains equipment to record what you say and do after you are arrested.

As a criminal defense attorney, I never want to think that I have a great defense, only to learn in the middle of trial that my client said or did something on camera during their arrest that greatly increases the chance of a guilty verdict. Therefore, any lawyer worth his or her salt will carefully review the entire video of the stop as soon as possible.
This happened recently with a client who was arrested for possession of one-half kilos of cocaine and almost a pound of marijuana. The drugs were found in a back-pack on the back seat of his car following a traffic stop. His defense was that he had no idea that the drugs were there and that he had been “set up” by some people who had been in the car with him earlier that day. This is a very serious felony drug charge and my client was facing up to ten years in prison. However, he was very adamant about his defense.
Because I practice criminal defense in Baton Rouge, which is on the I-10 interstate, I represent a lot of clients who are charged with possession of drugs following a traffic stop. The video of their arrest often contains valuable information regarding the reasons for the stop (or lack of, as is sometimes the case), as well as other important information that I can use to get the evidence thrown out or “suppressed”. Therefore, I thoroughly review the video on all new cases ASAP.

Sometimes, however, the video contains information that is potentially harmful to my client’s defense. That happened in a recent case I handled. After my client was handcuffed and placed into the rear of the police unit, the officer left him alone to go inventory and weigh the drugs that had been seized. As soon as the police officer shut the door, my client, not realizing he was being recorded, began talking to himself.  Incredibly, this is what he said:

Going to jail.  This is one of the stupidest things I’ve did. Shoulda got the coke outta there.

Obviously, this statement strongly indicates my client knew the drugs were in the car and that he had not been “set up” as claimed. Luckily, I caught this statement early on by reviewing the video thoroughly. If I had gone to trial with my clients story, he surely would have been convicted and sentenced to a lengthy prison sentence for this serious felony drug crime. Instead, I quickly went to the Assistant District Attorney and sought a plea bargain and was offered probation for my client. Why would the prosecutor agree to give my client probation when he had these incriminating statements? The answer is simple: he had not yet reviewed the video. Because the case was still relatively new the prosecutor simply had not gotten around to looking at the video. If he had he would have heard the statement and not been so generous. This was a major save.

If you are arrested for possession of drugs or for any serious felony crime, call Baton Rouge Criminal Defense Attorney Rhett Spano now at (225) 387-8327. Or you email me a question at rspano1@gmail.com.  Also, be sure to visit my website at http://www.rhettspanolaw.com for additional information regarding selecting a criminal defense attorney.

Wednesday, July 23, 2014

The Fair Sentencing Act Applies Retroactively For Those Serving Federal Time For Crack Cocaine Convictions

In 2013 the U.S. Congress passed a law known as the Fair Sentencing Act ("FSA") that revised federal sentencing guidelines for those convicted of possession of crack cocaine. Briefly, before the FSA was enacted federal sentencing guidelines mandated that a person convicted of possession of crack cocaine would serve a much longer sentence than a person found guilty of possession of powder cocaine.  For example, a person convicted of possessing just 5 grams of crack cocaine would get the same 5 year minimum mandatory sentence as the person convicted of possessing 500 grams of powder cocaine. That's a big difference.

Once the FSA became law in 2013 it was discovered that it did not apply retroactively to those defendants serving sentences for convictions prior to 2013. Therefore, Congress was urged to enact an amendment allowing those people who were sentenced for possession of crack cocaine prior to 2013 to shorten their sentences.

On July 18, 2014, the U.S. Sentencing Commission voted to make the FSA retroactive and applicable to those who were sentenced prior to 2013. According to www.FAMM.org, "46,000 federal drug offenders sentence before November 1, 2014, will now be eligible to file a motion in federal court asking for a shorter sentence. The average sentence reduction for those who qualify will be two years."

This great news but it is tempered with some caveats, however:

1.  Reductions are not automatic. Not everyone sentenced before November 1, 2014, will be eligible for a sentence reduction. 

2.  Courts will not begin considering in granting motions percentage reductions until November 1, 2014. Moreover, prisoner releases not begin until the following year, one November 1, 2015 the delay is necessary to give courts and probation officers an opportunity to handle what is expected to be a huge amount of motions percentage reductions.

To find out if you or a loved one are eligible For a retroactive since introduction you should call Baton Rouge Criminal Defense Attorney Rhett Spano at (225) 387-8327 or email your question to rspano1@gmail.com. You can also visit my website at http://www.rhettspanolaw.com.