You had a court date and you missed it—here’s what you need to know:

When you miss court, the judge will issue a bench warrant for your arrest.

Typically they will set a bond significantly higher than your original bond (usually at least double). This means that if you are pulled over and that warrant has been entered into the system, you will go back to jail.

Of course, you want to avoid going back to jail, so what should you do? Your attorney needs to get the warrant recalled, if possible. This means that you need to immediately gather any documentation or proof you have regarding why you missed court. For example, if you were in rehab, provide your attorney with a certificate of completion, so that she can provide that to the State and the Court. You will likely need to appear in court with your attorney to explain your absence to the court (through your attorney), and request that the bench warrant be recalled. This process needs to be done quickly—the more time passes once you have missed your court date, the more difficult it becomes to get the warrant recalled.

If you need an experienced attorney to help you navigate a situation like this one, call us for a consult at (318) 459-9111.

Many of our clients have never appeared in court, and as a result they have questions about what to expect. We want to answer some of those questions for you here. Below are a few courtroom basics that we hope you will find helpful in preparing for your first court appearance

1. Show up—on time!

One of the fastest ways to frustrate the prosecutor handling your case and the judge presiding is to not be present when they call your case up. If your notice to appear says 9:30 a.m., don’t pull into the parking lot at 9:30. You need to allow time to park, go through security, figure out which courtroom you are in, and wait for an elevator. It is a good idea to plan to be in the courtroom at least 15 minutes prior to your notice to appear, unless otherwise instructed by your attorney. We have experienced judges who issue bench warrants one minute after the notice to appear told you to be present, so don’t push your luck on something so easy.  Just get there early—and this goes without saying, but no you can’t just skip your court date.

2. Dress like it’s an important appointment—because it is…

Wear what you would wear to church or to an important interview or meeting. Don’t wear your Budweiser t-shirt that you got for free at some festival to your court appearance for DWI or have your marijuana leaf tattoo visible for your court appearance for possession of drug paraphernalia. No ballcaps. No chewing gum. You are trying to communicate to the prosecutor and the judge that you take this seriously, and being dressed inappropriately for court is the first thing they will notice.

3. Be patient—sometimes good results take time…

While everyone in the courtroom is trying to move the docket as fast as possible, these things take time. Sometimes the lawyers need time to work out a resolution or issue in your case. Keep in mind that there are usually dozens of cases on the docket, so there is a lot of activity going on. Typically, if you have retained an attorney, you will get called up at the beginning of the docket.

4. Be the best-behaved person in the courtroom…

Sometimes people get testy during long days in court—don’t be this person. This means if the victim/opposing party/opposing counsel is in the courtroom, there is no need to speak to them, glare at them, or otherwise communicate with them. Don’t get on the elevators with opposing parties—it’s awkward—trust us. Let the lawyers do the arguing—that’s what you pay us for.

5. Don’t be the person whose cell phone rings…

Don’t let your cell phone make any noise at all in the courtroom—if the bailiff says turn them off, then please do that. Nobody wants their phone to be confiscated because they were defiant. It’s really best to leave your phone in the car altogether.

6. Be aware of new COVID procedures…

We all know the world looks a little different now. Make yourself aware of the court’s mask requirements, temperature checks, or staggered start times and social distancing rules. If you have tested positive for COVID-19, or been exposed, alert your attorney as quickly as possible to make sure that alternative arrangements can be made for you.

We hope these tips help you feel well-prepared for your first court appearance. If you would like to consult us regarding your upcoming court appearance, call Gilmer & Giglio for an appointment at (318) 459-9111.

Effective August 1st, 2020, the Louisiana legislature added Louisiana Revised Statutes 14:98.5.1 to the mass of laws governing the potential penalties for those convicted of Driving While Intoxicated. This particular statute allows a court to order a person convicted of a second or higher offense of driving while intoxicated to undergo an assessment to determine whether a diagnosis of alcohol or drug dependence is appropriate in keeping with the diagnostic criteria of the most recent Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association. This assessment must be paid for by the person convicted. The assessment must consider whether the individual would benefit from a court-approved, FDA-approved, medication-assisted treatment program.

After the assessment, the court may refer the person to a rehabilitation center that offers the approved medication and treatments.

If you or someone you know is facing DWI charges, call us at (318) 459-9111 to set up a consult.

The United States Supreme Court has several cases before it this year that will have an impact on criminal cases across the country. We’d like to take the next few weeks to talk about a few of them.

Of particular importance to Louisiana residents, Ramos v. Louisiana, will be decided this term.

At the end of 2018, Louisiana voted to require unanimous jury verdicts in felony criminal cases. Evangelisto Ramos was charged with second-degree murder, tried, and found guilty by 10 out of the 12 jurors deciding his case. Because Louisiana only required 10 votes to convict, he was found guilty and sentenced to life imprisonment.

The question pending before the United States Supreme Court is whether the Fourteenth Amendment to the US Constitution requires that the Sixth Amendment’s guarantee of a unanimous jury apply to the states.

This decision could impact a lot of individuals currently serving sentences for felony convictions where less than 12 jurors voted to convict.

UPDATE:

The US Supreme Court has reversed Ramos and held that non-unanimous jury verdicts are unconstitutional. Read the full opinion here.

The process for filing for an expungement can be lengthy.

The beginning of the process requires the applicant to request a background check, which usually takes approximately 30 days for Louisiana State Police to provide. Once the expungement motion is filed, the State has 60 days to file an objection. Once that 60-day window has passed, the Court will set the matter for a hearing to determine whether the applicant is entitled to an expungement. If the Court finds that the applicant is entitled to an expungement, he will sign the order. Once the order is signed, the expungement is granted; however, there is usually a period of time after the order is signed, but before the order has been complied with by the various agencies who maintain records.

The entire process takes anywhere from 6 to 9 months.

Articles 893 and 894 of the Louisiana Code of Criminal Procedure in their broadest sense allow for the suspension and deferral of a sentence (and probation) in a criminal case. More specifically, under certain circumstances, they allow a conviction to be set aside after the defendant serves a period of probation satisfactorily. This opens up the charge for expungement.

Article 893:

Article 893 applies to felony convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of a sentence “after a conviction for a first offense noncapital felony.” At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 893 once and there are several exceptions to eligibility for deferral including certain violations of the Controlled Dangerous Substances Laws, sex offenses, and violent crimes.

Article 894:

Article 894 applies to misdemeanor convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of the sentence. At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 894 once during a 5-year period (or a 10-year period for Driving While Intoxicated convictions). 

Okay, so why do I want one?

The dismissal and set aside of the conviction under either Article 893 or 894 allows the defendant to seek an expungement of the arrest record immediately and will also allow him to say that he has never had a criminal conviction (assuming an otherwise clean record) for most purposes.

If he goes through with expungement, he will be able to say he has never been arrested (assuming an otherwise clean record, and with some exceptions).

The benefit of an Article 893 or 894 allows an individual to maintain, for most purposes, a clean record once she has served her term of probation and to minimize the impact of a sole criminal offense on her life.

If you have been arrested, and are unsure whether you will be eligible for an 893 or 894, call us at (318) 459-9111 to schedule an appointment to discuss your case.

On Friday, June 21, 2019, the United States Supreme Court issued a ruling reversing the conviction of Curtis Flowers for First Degree Murder after his sixth trial. Four of Flowers’ previous trials had been overturned for prosecutorial misconduct in jury selection and the fifth ended in a mistrial. The issue before the Supreme Court was whether the prosecution’s systematic removal of black potential jurors from the jury was a violation of the Court’s precedent in Batson v. Kentucky. Flowers’ case was the subject of much public and media scrutiny over the past year due to its being featured in the second season of the podcast “In The Dark.”

Scotusblog has a good write-up of the opinion issued by Justice Brett Kavanaugh:

“The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.

Justice Kavanaugh’s full opinion and those of the two dissenting Justices, Thomas & Gorsuch, can be read here.

In Louisiana there are several types of protective orders. They fall into two main categories: criminal and civil.

A criminal protective order is issued in conjunction with a criminal charge and most often as a condition of the defendant’s bond obligation. A civil protective order can be issued entirely independently of a criminal investigation and for grounds that may not rise to the level of criminal conduct.

In either case, protective orders are issued because there is a threat of harm or harassment from the defendant in the action to the petitioner in the action. Protective orders are not limited to individuals who are married or in intimate relationships and can be issued in situations where one individual is stalking or simply harassing another individual. 

The purpose of a protective order is to prohibit contact between the petitioner and the defendant and to stop the behavior, whether it be physical violence or harassment that is the subject of the protective order.

Protective orders are usually filed by filling out a form available at the Clerk of Court’s office. If you are served with one, you should first note specifically what provisions the Court has ordered you to comply with. The first document you will be served with is a Temporary Restraining Order (or TRO) which will be in place until the hearing date listed in the court’s order. It may prohibit you to go to certain locations or make contact with certain people. In proceedings involving people in relationships, it may permit use of certain property (homes or vehicles, for example) to one of the parties. 

You should contact an attorney as soon as possible upon receiving the TRO because it is likely you will have a hearing date scheduled within two weeks. The purpose of the hearing is to determine whether or not the court will issue a Permanent Restraining Order. At this hearing, you will be permitted to present witnesses and to testify on your own behalf.

A protective order not only has consequences with regard to your contact with the individual filing it. If a protective order is granted, you can lose your concealed carry permit, you will be ordered to dispose of or to surrender to law enforcement all of your firearms, and you may be required to report the existence of the protective order to employers or licensing agencies, depending on the terms of your employment.

If you or someone you know has recently been served with a TRO, call us at (318) 459-9111 to schedule a consult.

Recently, we’ve caught up on Serial: Season Three.

From the show’s website:

Serial is heading back to court. This time, in Cleveland. Not for one extraordinary case; instead, Serial wanted to tackle the whole criminal justice system. To do that we figured we’d need to look at something different: ordinary cases.

So we did. Inside these ordinary cases we found the troubling machinery of the criminal justice system on full display. We chose Cleveland, because they let us record everywhere — courtrooms, back hallways, judges’ chambers, prosecutors’ offices. And then we followed those cases outside the building, into neighborhoods, into people’s houses, and into prison.

We watched how justice is calculated in cases of all sizes, from the smallest misdemeanor to the most serious felony. 

This season, we tell you the extraordinary stories of ordinary cases. One courthouse, week by week.

This is a really interesting view into the inner workings of a criminal courthouse. Take a listen and then come to our facebook and tell us what you thought!

And if you find yourself in need of assistance with a criminal case, call us at (318) 459-9111 to set up a consult.

Common Questions regarding State Court and Federal Court:

1. Is there a difference between State Court and Federal Court?

   Yes, several. State courts have only the authority to handle crimes which are prohibited by their state laws. And only those crimes which occurred within their states and the smaller district divisions of the courts.

   
   For example, the First Judicial District Court in Caddo Parish can only handle cases where the crimes were committed in the State of Louisiana, and particularly only in the First Judicial District which encompasses the Parish of Caddo. State courts have no authority to handle federal crimes.

   
   Federal courts have jurisdiction to handle only violations of federal law and federal laws, because of some specific constitutional requirements, have limited jurisdiction over criminal acts that occurred in more than one state (i.e. drug trafficking across state lines) or which involve interstate commerce (i.e. wire fraud).

   This is why some offenses which are crimes under state law are not crimes under federal law and why there are often additional interstate requirements for prosecutions in federal court.

2. I have been charged with a drug offense in a Louisiana District Court, can I be charged with a crime in Federal court?

   That depends. If the drugs were transported across state lines, yes, if the drugs you are charged with possessing are illegal to possess under both state and federal law (currently, most of them are, although some states marijuana laws differ from federal law). 

3. If I’ve been convicted or acquitted of a crime in state court that is also a crime in federal court, doesn’t double jeopardy mean the federal court can’t prosecute me

   No. The double jeopardy clause in the Fifth Amendment of the United States Constitution states (in part): “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

   However, because our system of government is one of dual sovereignty, we are citizens of the United States of America and also our State of residence. Each sovereign, the United States and the State of Louisiana, has the authority to prosecute the crimes committed within their jurisdiction, without being subject to double jeopardy restrictions for the actions of the other.

   This means that if you are tried for a drug offense in state court and found not guilty, the State cannot retry your case for another shot, but the federal court which has jurisdiction over that case can then prosecute you in the event that the circumstances of your arrest were in violation of a federal crime.

If you or someone you know is facing prosecution in state or federal court and you would like your questions answered, please call us to set up a consult: (318) 459-9111.

Revocation is usually short-hand for a hearing that is intended by the State of Louisiana to end a criminal defendant’s supervised release on probation or parole and return him to incarceration for some period of time up to the length of his original sentence.

When a criminal defendant is sentenced to probation, or is released on parole, there are conditions of his supervision with which he must comply.

The standard conditions of release on probation are found in Louisiana Code of Criminal Procedure Article 895. All defendants are required to refrain from criminal conduct and to pay a supervision fee to help defray the costs of supervision. In addition, the sentencing court may impose any or all of the following conditions:

• Full and truthfully report to his probation/parole officer (PO) monthly or as directed;

• “Meet his specified family responsibilities, including any obligations imposed in a court order of child support”;

• Allow his PO to visit him at home or other places he may regularly be found;

• Maintain employment;

• Refrain from owning or possessing a firearm or other dangerous weapon;

• Make reparation or restitution to the victim;

• “Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;”

• Stay within the jurisdiction of the court and receive permission from his PO before changing his address or employment;

• If he is unable to read English, “devote himself to an approved reading program;”

• Community service;

• Submit to medical, psychiatric, or substance abuse examination or treatment; and/or

• Agree to searches of his person, home, vehicle, etc…by his PO.

A judge may impose additional restrictions in the event he believes them necessary for the particular criminal defendant.

If the defendant then violates these conditions, his PO can file a Petition for Probation Revocation, which will usually be accompanied by a warrant, and the defendant will have to appear before the sentencing judge to explain why his probation should not be revoked.

If his probation is revoked, a defendant can be ordered to a longer term of probation, to perform additional conditions of probation, or can have his probation terminated, and he can be ordered to serve the original prison sentence that was suspended at the time he was placed on probation.

If you or someone you love has been notified that his PO is going to terminate his probation, please contact our office to assist you.

Like adult court, a child charged with a criminal offense has the right to an attorney under the constitutions of the United States and the State of Louisiana. Also, like adult court, the Juvenile Court will appoint an attorney to represent a child who has been charged with a criminal act. There are public defenders available to aid children who are charged with criminal offenses.

Unlike adult court, juvenile proceedings are conducted in a much more confidential manner. As a result, the language used (petition, adjudication, disposition, etc…) are unfamiliar to even those who may have some familiarity with the adult justice system. An attorney with experience in the juvenile court system can provide some much-needed information regarding the proceedings.

A criminal prosecution in juvenile court can, just like adult court, result in a finding of guilt and punishment. That punishment can include fines, imprisonment, probation, community service, anger management, and a multitude of other consequences. In addition, parents of minor children can be required to comply with certain conditions as a result of a juvenile delinquency finding. (Please see last week’s blog post regarding criminal consequences for the parents of delinquent children.)

Although a juvenile record is more protected from disclosure than an adult criminal record, a criminal conviction as a juvenile can cause problems for a person once they have reached adulthood. Under certain circumstances, a juvenile record can be released in subsequent criminal prosecutions. 

For the same reasons you would seek an attorney for an adult prosecution, you should seek representation for your child accused of a crime. The consequences can be severe and long-ranging and an attorney will be able to advise you about the direct and collateral consequences of a juvenile criminal prosecution.

If your child has been arrested for a crime, call us at (318) 459-9111 to set up a consult.

You had a court date and you missed it—here’s what you need to know. When you miss court, the judge will issue a bench warrant for your arrest. Typically they will set a bond significantly higher than your original bond (usually at least double). This means that if you are pulled over and that warrant has been entered into the system, you will go back to jail. Of course, you want to avoid going back to jail, so what should you do? Your attorney needs to get the warrant recalled, if possible. This means that you need to immediately gather any documentation or proof you have regarding why you missed court. For example, if you were in rehab, provide your attorney with a certificate of completion, so that she can provide that to the State and the Court. You will likely need to appear in court with your attorney to explain your absence to the court (through your attorney), and request that the bench warrant be recalled. This process needs to be done quickly—the more time passes once you have missed your court date, the more difficult it becomes to get the warrant recalled.

If you need an experienced attorney to help you navigate a situation like this one, call us for a consult at (318) 459-9111.

Many of our clients have never appeared in court, and as a result they have questions about what to expect. We want to answer some of those questions for you here. Below are a few courtroom basics that we hope you will find helpful in preparing for your first court appearance

 Here are a few things to know before you go:

1. Show up—on time!

One of the fastest ways to frustrate the prosecutor handling your case and the judge presiding is to not be present when they call your case up. If your notice to appear says 9:30 a.m., don’t pull into the parking lot at 9:30. You need to allow time to park, go through security, figure out which courtroom you are in, and wait for an elevator. It is a good idea to plan to be in the courtroom at least 15 minutes prior to your notice to appear, unless otherwise instructed by your attorney. We have experienced judges who issue bench warrants one minute after the notice to appear told you to be present, so don’t push your luck on something so easy.  Just get there early—and this goes without saying, but no you can’t just skip your court date.

2. Dress like it’s an important appointment—because it is…

Wear what you would wear to church or to an important interview or meeting. Don’t wear your Budweiser t-shirt that you got for free at some festival to your court appearance for DWI or have your marijuana leaf tattoo visible for your court appearance for possession of drug paraphernalia. No caps. No chewing gum. You are trying to communicate to the prosecutor and the judge that you take this seriously, and being dressed inappropriately for court is the first thing they will notice.

3. Be patient—sometimes good results take time…

While everyone in the courtroom is trying to move the docket as fast as possible, these things take time. Sometimes the lawyers need time to work out a resolution or issue in your case. Keep in mind that there are usually dozens of cases on the docket, so there is a lot of activity going on. Typically, if you have retained an attorney, you will get called up at the beginning of the docket.

4. Be the best-behaved person in the courtroom…

Sometimes people get testy during long days in court—don’t be this person. This means if the victim/opposing party/opposing counsel is in the courtroom, there is no need to speak to them, glare at them, or otherwise communicate with them. Don’t get on the elevators with opposing parties—it’s awkward—trust us. Let the lawyers do the arguing—that’s what you pay us for.

5. Don’t be the person whose cell phone rings…

Don’t let your cell phone make any noise at all in the courtroom—if the bailiff says turn them off, then please do that. Nobody wants their phone to be confiscated because they were defiant. It’s really best to leave your phone in the car altogether

We hope these tips help you feel well-prepared for your first court appearance. If you would like to consult us regarding your upcoming court appearance, call Gilmer & Giglio for an appointment at (318) 459-9111.