The Law Offices of Ted Thompson

04/10/2019

James Duane says you shouldn't say anything to a cop for any reason, you shouldn't plead the Fifth, and you shouldn't stay silent. So what should you do?

03/30/2018

There are specific stages in a criminal proceeding and there are time limitations for each stage. The time limits can be waived (given up) and it is often to the accused’s advantage to agree to give up certain of the time limitations. When the accused does so, he is said to have “waived time.”

The stages and the time limitations differ for misdemeanor prosecutions and for felony prosecutions. Let me give you an outline of each, giving you and idea of what to expect from the process.

Misdemeanor Cases. If you are in custody, you have a right to be brought before a judge for an arraignment within 48 hours of your arrest. At the arraignment, you are formally advised of the charge(s) against you and you have the opportunity to enter a plea to the charges.

More often in misdemeanor cases, the arrestee will have been released on a citation (A Promise To Appear in Court). The appearance date (the arraignment date) for most citations is about four or five weeks after the person is released.

At the arraignment, the accused can either plead guilty or not guilty. Those are the only choices. No matter what is ultimately going to happen in the case, it is almost always to the accused’s advantage to plead not guilty at the arraignment stage. That gives the person and his lawyer the chance to sit down and carefully go through the police report. That way we can determine exactly what we are up against and we can make informed decisions based on the evidence that the prosecution has.

Witnesses will need to be interviewed, crime scenes will need to be visited, and basic defense investigations will need to be conducted before the lawyer and his client can intelligently analyze the case and decide what defenses are available to us. That takes time and that is why a not guilty plea at the arraignment is almost always the smartest path to take.

Also, even if the accused is ultimately going to be admitting to the charges, the defense will need time to put together a package in mitigation for sentencing. Letters of recommendation must be obtained, school, medical or other records that are pertinent to the case must be put together to cast the accused in the best light.

If this is a case that we want to go to trial on, there are other time limitations that are set by law. In misdemeanor cases, if the accused is arraigned while in custody, he has the right to go to trial within 30 calendar days of his arraignment. If he is out-of-custody when he is arraigned, then he has the right to go to trial within 45 calendar days of his arraignment. Again, these are time limitations that the defense frequently waives to give us more time to do a good job of trial preparation.

Felony Cases. The time limitations for felony cases are more complicated. Again, the defendant has the right to be taken in front of a judge to be arraigned within 48 hours of his arrest, unless he has bailed out and given a later arraignment date (usually four or five weeks after he is released on bail).

After he has been arraigned in a felony case, the defendant has a right to a preliminary hearing within 10 court days of the arraignment. Time is often waived in this instance to allow the defense an adequate opportunity to review all of the police reports, to interview witnesses, and to otherwise prepare for the preliminary hearing (the “prelim”).

At a preliminary hearing, the prosecution must put on their witnesses and present their case. The prosecution at the prelim need not show guilt beyond a reasonable doubt (the standard they must meet at trial), but instead they need only put on enough evidence to convince the judge (who is called a “magistrate” at the preliminary hearing) that there is probable cause (a reasonable belief) to believe that 1) a crime was committed, and that 2) the defendant is guilty of committing that crime.

That’s a pretty low standard of proof and in most cases the prosecution is able to meet that low standard. It doesn’t mean that the defendant is guilty, it only means that the magistrate believes that there is enough evidence to hold him for trial to let a jury decide. (Don’t ever, ever forget that in a criminal case the jury is the accused’s best friend—Not only his best friend, but many times, other than his lawyer, his only friend in the courtroom.

At the prelim, after the evidence is heard and the closing arguments are made, the magistrate can do one of two things (one of three things in certain cases).

First, the magistrate can say that there is simply not enough evidence to proceed and he can dismiss the case. That happens, but it doesn’t happen often enough.

What happens in probably most cases is that the magistrate either says, “Yes, there is enough evidence to hold a trial” or sometimes the magistrate just says, “Look, I don’t know, I wasn’t there, but I’m going to hold the defendant for trial and let the jury sort it out. There’s enough, maybe just slightly enough, but enough.” Many a times I’ve had the magistrate actually warn the DA that the evidence is weak and there may not be enough for a conviction, but there is enough to let a jury decide. A smart prosecutor interprets this to mean that he should settle the case favorably to the defense.

(In some felony cases, not all, but some, the magistrate has a third alternative. He can reduce the felony charge to a misdemeanor charge. In such cases, the case then proceeds as a misdemeanor case, not a felony case.)

If the defendant is held for trial (“Held to Answer”), he will be arraigned on a new accusatory pleading (called an “Information”) two weeks from the date the preliminary hearing concludes. At this second arraignment, he is again formally advised of the charges and then given an opportunity to enter a plea. Again, at this stage it is almost always best for the accused to enter a not guilty plea, regardless of what he and his lawyer expect will ultimately be the outcome of the case.

With the entry of a not guilty plea at this second arraignment, the defendant is now entitled to a trial within 60 calendar days of the new arraignment. The judge will usually set a pre-trial hearing date for about 30 days from the arraignment date and a trial date for about 58 days from the arraignment date (said to be “Day 58 of 60”). (Remember, time limitations can and often are waived.)

At the pre-trial hearing is where the DA and the defense lawyer really sit down and knock heads together to see if the case can be resolved. The defense lawyer will present the DA with the problems that he sees in the DA’s case. He will present to the DA any mitigating evidence that favors the defense.

At this stage, the defense lawyer is going to want to bring on for hearing any pre-trial motions that he contemplates. There are a number of motions that can be made. The most common are a “995 motion” (used to challenge the magistrate’s ruling that there was probable cause to hold the defendant to answer) and/or a “motion to suppress evidence” (wherein the defense challenges the admissibility of any evidence that is being used against the defendant, where the evidence was seized in an unlawful search and seizure). Other common motions include a motion to contest any violation of the defendant’s 5th Amendment right to remain silent (so-called “Miranda violations); a motion to sever certain counts in the Information from other counts for trial; a non-statutory motion to dismiss the case…and the list goes on and on.

Sometimes the case is resolved by the court’s ruling on the pre-trial motions. Sometimes not. If not, at the end of the pre-trial hearing, the prosecution will make to the defense what is known as an offer to resolve the case. The defense can accept the offer and the case is resolved on the terms agreed to. Or, the defense can make a counter offer to the prosecution’s offer. Or, the defense can say, “Thanks, but no thanks. Let’s set the case for trial and let a jury decide.”

The length of a jury trial will vary greatly based on the complexities of the case and the seriousness of the charges. . Generally, misdemeanor trials take between five and eight days. Typical felony trials will last for two, maybe three weeks. A complicated murder case can take a month, or two, or more.

In a criminal jury trial there are three important things to remember. The first is a concept that we have already covered and it is a concept that I believe with all of my being: That the jury is our friend. It is the accused’s right to have a jury between him and the government that is trying to deprive him of his liberty. The prosecution does not need a jury. A jury just gets in the way of the prosecution’s attempt to steam roll over you. A jury is a nuisance that must be tolerated to the government, the prosecution. But, to the defendant, the jury is the guarantor of the accused’s rights. The jury is not to be feared by the accused. It is to be welcomed with open arms by the defense.

The second crucial concept to remember in a criminal jury trial: You are presumed to be innocent. The entire burden of proof is on the prosecution (the government). The defense need prove nothing, because the defendant is presumed innocent. We always put on a vigorous defense, but we are not obligated to do so. The entire show is the government’s. They are the ones who have brought the charges and they are the one who has the burden of proving their case. If they fail in that, then the defendant is entitled to a not guilty verdict.

(During voir dire —the beginning part of the trial where the jurors are chosen—, I always like to talk with the jurors about this idea of the presumption of innocence. I get them all to agree that that presumption is the corner stone of our system of justice. I get them to all agree that they will follow the presumption during the trial. I get them to all agree that because of that presumption the accused, as he sits before them now (at the very beginning of the trial), is not guilty.

I then ask them to imagine that at this point something that isn’t going to happen does in fact happen. Imagine that at this point, without any evidence having been presented, the judge says, “Well, all right, we have heard enough of this case. I want you jurors to go back to the jury room and decide the case right now.”

I ask them if that were to happen what would their verdict have to be. Invariably, one of the prospective jurors will speak up and say, “Well, we couldn’t decide, because we haven’t heard the evidence.”

And then you can see the smiles of understanding and agreement come over the jurors’ faces as I remind them of the presumption of evidence. If the defendant is presumed to be innocent, and if they did not hear any evidence proving otherwise, then the presumption controls and they would have to find the defendant not guilty. It is then that my prospective jurors have come to fully grasp the concept that in our system, the accused is presumed to be innocent!)

And the final concept that you always have to remember in a criminal trial is that you cannot be found guilty of squat unless the prosecution (the government) proves your guilt beyond a reason doubt. This is the highest burden of proof known to our system of jurisprudence. It is a heavy burden and it is a burden that the prosecution cannot reach easily.

Our system of laws has many burdens of proof incorporated into it. The burden of proof is the level of proof that is required for the government to meet its burden. Remember that earlier we talked about the prosecution’s burden at the preliminary hearing being mere “probable (or reasonable) cause,” which is not a very high burden at all.

And, in civil cases, where the parties are fighting about money or property, the burden of proof is “a preponderance of the evidence.” Whichever party has the most evidence, even if it is only slightly more than the other party, that party wins. If one side has 51% of the evidence, but the other side has 49% of the evidence, the 51% side wins.

And, when the government is trying to take your children away, the burden of proof is said to be “clear and compelling evidence.” That is, more than the “preponderance of evidence,” but less than “beyond a reasonable doubt.”

Thus, even where the government is trying to take a mother’s child from her, the government’s burden of proof is less than they need to convict a man, to take away his liberty. Proof beyond a reasonable doubt is a high hurdle for the prosecution. It is a high mountain for them to climb. And it is up to a good defense lawyer to hold the prosecution to that high burden of proof. It is the lawyer’s job is to hold the prosecution’s feet to the fire every step of the way. If they can’t meet their heavy burden of proof, then the accused is entitled to a not guilty verdict.

This is the way that the concept of the presumption of innocence and the concept of proof beyond a reasonable doubt dovetail with one another. This is the way that these two concepts that are so critical to our system of justice work
together. They work together to protect the rights of the person against whom the government brings its mighty weight when charging an individual with a crime.
A criminal trial can seem like another unfair fight. On the one side is the prosecution—the government, with all of the resources that the government has at its disposal: an unlimited number of police officers, sheriffs, FBI, guns, helicopters, crime labs, detectives, their ability to lawfully lie to suspects, their ability to secretly record people, their ability to offer deals to one person to get them to rat out another person…they can even get the Marines, I suppose, if they need them. The list just goes on and on. It doesn’t seem fair.

But it’s okay. It really is a fair fight. The accused has the Constitution and he has me.

Hopefully, this gives you a brief outline of what to expect in a criminal case. Be sure to call me if you want to discuss your particular case in detail. I’m always available for you.

03/30/2018

Anyone who is arrested is faced with all the questions about the posting of bail. How bail works is an often confusing topic. I will try to shed some light on issues concerning bail.

A person is arrested. For some minor misdemeanor offenses, the arresting officer has the discretion to give the person a citation (actually a Promise to Appear in Court). The person is released on his or her own recognizance (an “OR release”) after he/she has given a written to promise in court on a certain date. (Usually, the court date is for three or four weeks after the arrest.)

The OR release can be made from the streets (the person is not taken to the police station to be booked) or it can be made from the station house after a formal booking. (Note: Even if the arrestee is released on an OR release from the street, without a formal booking, he/she has nevertheless been arrested and he/she is entitled to all of the rights of any other arrestee.) This is what happens with most misdemeanor arrests.

The one major exception is where the person is arrested for domestic violence (a “DV case”). In all DV cases, especially in LA County, no matter how trivial the injuries might be, and no matter whether the case is going to be filed as a misdemeanor or a felony, as a matter of course, the arrestee is held in custody on a $50,000 bail. A judge can later reduce that bail—or even order the person released on his or her own recognizance. But until the arrestee either appears before a judge, or he or she posts the $50,000 bail, the person is simply going to remain in jail.

Those are the general rules for misdemeanors. Here is how it works for a felony arrest, or for any misdemeanor arrest for which then arrestee is not released OR (like all DV cases). When the person is booked, bail is set as per a Bail Schedule. The amount of bail is automatically set, before you appear in front of a judge. That allows you to post the bail and get out of jail while you await your court date (which is typically four or five weeks after you have been released on bail).

The amount of the automatically set bail is an amount that has been set by the county judges in a “Bail Schedule.” The Bail Schedule is simply a bail amount deemed appropriate by the judges for the certain class of crime for which you have been charged.

Obviously, the amount of bail set by the Bail Schedule does not take into account anything about you personally: How old you are; what, if any, criminal record you have; if you are employed and how long you have been employed; whether you own property in the area; whether you are on probation for some other case; whether you are you married and what other family you have in the area; and what other ties you have to the community. The purpose of bail is to make sure that you come to court. These things that show that you have significant ties to the community are obviously important considerations in determining what amount of bail will ensure that you return to court.

Hence, if you have to remain in jail until you get in front of a judge, your lawyer may well be able to get the amount of your bail reduced when you do actually appear in court based on who you are as an individual.

(You have to appear in front of a judge within 48 hours after being arrested, but weekends and court holidays do not count in calculating the 48 hour period. Also, note that the 48 hour period does not end until the end of the last day included in the 48 hours. For example, you get arrested on Monday at 6:00 in the morning. You have the right to appear in front of a judge before the end of the court day on Wednesday.)

Your lawyer may be able to get a reduced bail amount—or even get you released OR—by asking for a bail hearing in front of the judge. Your lawyer is going to want to bring to court proof of your employment and your employment history. He might want to bring proof that your employer knows about the situation and is standing behind you with your job waiting for you, proof of your work in the community on community issues (remember that your ties to the community are crucial), proof of your involvement with your church or synagogue or other place of worship, and other things that demonstrate that you have ties to the community and that, if released, you are likely to return to court.

He is also going to want to point out to the judge that you have gone to the trouble and expense of retaining a lawyer, especially a lawyer who has a solid reputation with the judges and prosecutors in that court. That will show the judge that you are taking the case seriously and hence you are unlikely to flee if released on a lower bail amount or on an OR release.

And, whenever possible, I like to bring the accused’s family members with us to court. That shows the judge that not only does the accused have solid ties to the community, but that he has strong family ties. It will demonstrate to the judge that the person in front of him is not just some routine case number, but rather that he is an individual with a life, with a family, and that he has family support from people who know him, who believe in him, and who are standing behind him. It just reinforces in the judge’s mind that this is a person who will return to court if released on a lower bail, or hopefully on an OR release.

But, assume that the arrestee has to post bail to be released, either in an amount set by the Bail Schedule or by the judge after a bail hearing. How does bail work?

There are two ways to post bail: either by posting a cash bail or by having a bail bond posted by a bail bondsman. (I work with the best bail bondsman on earth! I will be glad to refer you or your family members to him. Just ask.)

Let’s say the bail that has been set is $50,000. If you or your family have access to $50,000 cash, the entire $50,000 can be posted in cash at the jail and the accused will be released from custody. (He will be given a court date for about four or five weeks down the road.) That $50, 000 is transferred from the jail to the court, which holds the money until your case is concluded. At the end of the case, after you have made all of your court dates, the entire $50,000 will be returned to you by the court: the bail is said to be “exonerated.” You get all of your money back.

But, more often than not, you or your family don’t have access to $50,000 cash. In that case, you need to go through a bail bondsman. The bondsman will post the $50,000 directly with the court for you. But, he is going to charge you a fee (a “premium”) for that service. The bondsman’s fee is typically ten percent of the bail amount, although the fee is negotiable. I have seen bondsmen reduce their fees to seven, six, even five percent.

Assume the bondsman stands firm and requires a ten percent premium. So, you have to pay to the bondsman $5,000 for his fee. He will then post the $50,000 bail with the court. But the $5,000 is his fee for doing so. Unlike when you post a cash bail yourself, when the case is over and you have made all of your court appearances, you do not get your $5,000 back. That was his fee and he earned it when he posted the entire bail amount and got you released.

Three points: First, I have found that most bondmen, and certainly my bondsman, will work with you on making payments for their fee. (Depending on how serious the case is, the bondsman may require that you post collateral to insure the bail bond that they have posted for you. Sometimes, the bail bondsman will simply ask you to give them an undated check to insure the payment of the premium. Again my experience is that this is something that you can negotiate with the bondsman.) The bottom line is that a reputable bail bondsman will be flexible in working with you to arrange for the posting of a bail bond.

Second, many bail bondsmen will give you a discount off the amount of the premium (usually from between five to seven percent of the amount you have to pay to them) if you hire a private lawyer. You have to ask. Use my name. (I have also seen bail bondsmen give a similar discount to union members. Again, you have to ask.)

03/30/2018

You’ve been arrested and you are nervous, depressed, and scared. What should you do? The cop is going to warn you that you have the right to remain silent and, you know what, that is really good advice. He is telling you that not because he wants to tell you that (no he really wants you to talk), he’s telling you that because the courts have told him that he has to. Actually, his advice is right on. In this case, your silence is golden: Shut Up and remain silent. Lawyers like to say S**U.

The number of times that you can talk yourself out of whatever mess that you are in is minuscule compared to the number of times that you give up information that comes back to haunt you later. You would be so surprised if you knew the number of people who are in jail—or in state prison—because of statements they made and nothing more. There are so many people incarcerated right now because the only evidence that was used against them were the words that they themselves spoke.

And I’m not just talking about statements they made to the police. That’s a given. The cop is not there because he is your friend, trying to help you out. He is there because he is your adversary. He is trying to build a case against you.

Like I said, not talking to the cop, that’s a given. But now I am talking more broadly: Don’t talk to anyone about the facts of your case. AND FOR CRYING OUT LOUD: DON’T TEXT ANYONE ABOUT ANYTHING TO DO WITH YOUR CASE. Text messages don’t go away. They are available to the police for years simply by means of a subpoena and they can be devastating to your chances of defending yourself.

Just the other day, I was kidding a DA about how difficult it must have been for her to successfully prosecute cases before the invent of text messages. Now with texting, often times her being able to prosecute a case is so easy, because the accused made it easy for her. He just texted his freedom away.

Back to the police officer: There is a reason that the courts require a cop to warn you of your right to remain silent and to further warn you that anything that you say will be used against you in court. The courts understand that the interview with the police officer is simply not a fair fight.

On the one side is a profession police officer, who has attended numerous police training seminars on the art of interviewing suspects, with an eye toward getting incriminating statements from his prey. He is a pro. He is allowed to lie to you to get you to make statements harmful to you and to your case. He has one objective: to build a case against you that he can take to the DA. He is not your friend, he is your adversary. He is allowed to record your interview without you knowing that it is being recorded. Indeed, he is allowed to lie to you about whether the interview is in fact being recorded. If you are out in the street with an officer who is not in uniform, he is allowed to lie to you about whether he is even a cop or not.

On the other side, there is you. Alone and scared. In unfamiliar and intimidating surroundings. You are just a regular person, up against a trained and professional interrogator. You have no idea how any statement that you make is going to be twisted and used to your detriment. You are tired, nervous, and frightened. You just want to go home. The cop knows that whatever happens, he is going to go home and have his dinner and sleep in his own bed. And often times, he will actually tell you that fact, just to further intimidate and depress you. It is all calculated to make you feel more vulnerable. It is all calculated to make you want to talk to the cop, to make you want to talk with anyone.

Like I said: It just isn’t a fair fight. It is all meant to have you make statements that can be later shaped and twisted to make you look bad. It’s all meant to have you make statements that later you will deeply regret having made.

Let me give you a perfect example of an accused making what he thinks is a statement that shows his innocence that is later used against him.

Several years ago, I represented a young man accused of mo**sting his niece. He was arrested, taken to a police station interrogation room where he was alone one-on-one with the detective assigned to his case. He agreed to talk with the detective and he told him that he had himself been mo**sted as a child, so he knew what the victim of mo**station might well go through. He said that because of what happened to him, he would never, ever mo**st a child.

Sounds good, right? Sounds exonerating, doesn’t it? Well, it turned out to be neither good nor exonerating. We went to trial on the case and the prosecutor introduced the defendant’s statement. The prosecutor then called as an expert witness, a psychologist who testified that people who are themselves mo**sted often turn out to be mo**sters.

The prosecutor attempted to completely twist and turn around my client’s statement in an effort to use the statement against him. (The jury didn’t buy what the prosecutor was selling. We got a not guilty verdict when the little girl admitted on cross-examination that she had concocted the story to get back at her uncle for some wrong that she perceived he had done to her.)

It’s so important that I want to repeat it again: You against the trained, professional interrogator is simply an unfair fight. No matter how compelling
you think that you might be, you are not going to talk your way out of it. Just shut up. Be polite, but tell the copper that it seems like what is going on is a serious matter and that you are just a regular fellow, not trained in the law. And that until you have the chance to speak with someone who is—your lawyer—and to have your lawyer with you during questioning, you are going to take the officer’s admonition seriously and you are going to remain silent. There will be plenty of time to talk later, after you have spoken with your lawyer, if that is the appropriate thing to do. In the meantime, Shut Up and Remain Silent…. (S**U).

03/30/2018

Jesús Reyes
Paralegal

Jesús E. Reyes has been a paralegal and law clerk working with Ted Thompson for more than twelve years. Jesus assists in trial preparation matters and does a considerable amount of pre-trial investigative work as well. His specialty is finding hard-to-find (and reluctant) witnesses for the defense. He just seems to know where to look and where to find them.

He is a native of El Salvador and is fluent in Spanish.

03/30/2018

Ted E. Thompson
Attorney

Ted Thompson is a criminal defense lawyer on the Westside of Los Angeles. He practices in all of the courts throughout Southern California and he has been in practice for thirty years. His practice covers all aspects of criminal defense work, but his specialty is trial work.

Ted’s offices are bilingual-Spanish and he always offers a free consultation.

When Ted Thompson is your lawyer, he is your lawyer.
you won't be handed off to some junior lawyer in the firm

If you hire Ted Thompson, Ted Thompson is