Posting Bail. First Court Appearance

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1 With extensive background representing all types of clients in a variety of criminal defense cases, Tyler, Texas lawyer James W. Volberding has the experience and knowledge to represent individuals in all areas of criminal law. Every individual has right to an attorney. If you or a friend or family member are charged with a crime, particularly one in Smith County, Texas, there are important things to know. First, Smith County, Tyler, Texas, is one of the most aggressive law enforcement jurisdictions in the country. If you are arrest here, you need help quickly. Posting Bail When a person is arrested, he or she can post bail. The amount of the bail varies with the crime charged. A bondsman will charge 10% or 15% of the bail amount as a fee to post bond. You will not get this money back. If the bail is set high, then a lawyer can file a motion to reduce the bail to something the family can post. This requires filing a motion and scheduling a hearing, which takes time, perhaps a week. A family member will testify about the family's or the client's limited resources. The lawyer will ask for bail to be reduced. The prosecutor, particularly in Smith County, will likely oppose the bail reduction. Smith County has its own bond office. This is called the Smith County Personal Bond Office ("PBO"), at (903) The PBO post bond at the rate of 3% of the bail (a large savings), but requires (1) that the defendant have hired a lawyer, (2) not a charge for a serious violent crime, and (3) approval by one of the judges. First Court Appearance When the defendant is released from the jail, he or she will be given a paper with a court date four months away. This is the arraignment date, at which the individual will report to begin the case. On misdemeanors, the prosecutors will be in the courtroom and seek to speak with each defendant to attempt to convince him or her to plead guilty quickly in return for a sentence. We do not recommend that you speak with the prosecutors. A lawyer will usually be able to negotiate a better deal. Further, the prosecutors in Smith County will not dismiss cases, at least 1 / 9

2 without permission of the District Attorney or First Assistant. So it is best to hire a lawyer. At the arraignment, the individual will be given a new court date about 30 days later in one of the courts. At that first court appearance, the judge will expect the defendant to have hired a lawyer and be prepared to plead guilty and receive a plea agreement, or announce ready for trial, or seek additional time to prepare or negotiate. If a defendant in Smith County appears in court without an attorney, one of the judges sometimes arrests the defendant and return him or her back to jail. Or the judges will instruct the defendant to prepare to select a jury for trial that day. Asking for a Court Appointed Lawyer If the individual requests a court appointed lawyer, to which he or she is entitled, some of the judges will ask for proof of earnings, such as wage statements, tax returns, and bank records. Therefore, if you are planning to ask for a court appointed lawyer, and this applies everywhere, you must come to the hearing equipped with documents to prove that you are indigent: - a copy of last two tax returns; - a copy of last two years' W-2 statements; - a copy of payroll stubs for the last year or so; - a copy of bank statements showing little money; - a list of assets and liabilities, showing few or now assets and a lot of liabilities; - a list of income and expenses; - a copy of credit card statements, child support obligations, utility bills, and all other documents showing required monthly living expenses. Some judges will insist that the individual call 10 lawyers for quotes. We have stopped giving out phone quotes. Be persistent and polite, and provide documentation and eventually the judge will appoint a lawyer for you if you need one. How Does a Lawyer Defend a Client? Once you have hired a lawyer, the lawyer's first objective (after getting your money of course) is 2 / 9

3 to gather information. He or she will speak with you or your family member about what occurred. The lawyer will request a copy of the offense report, DWI arrest video, witness statements, and then show these to the client. A lawyer, if the client can afford this, will hire a private investigator to interview witnesses and chase leads, to build a defense. Once the lawyer has complete information, then the lawyer can provide accurate advice. There are five possible outcomes to any criminal case, from a traffic offense up to a serious felony: - The case could be dismissed. This is rare in Smith County for political reasons, but common in other counties if the district attorney can be convinced that there is insufficient basis for conviction; - The case could be tried to a jury of 12 citizens who will decide whether the individual committed a crime, and if so, what the sentence should be; - The case could be tried solely to the judge who will make these decisions. (This is almost never a good idea.) - The individual could plead guilty and let a judge or jury decide the sentence. (This is never a good idea.) - The individual could accept a plea agreement. This is how 95% of all criminal cases are resolved. In a plea agreement, the prosecutor will accept a lower sentence that he or she believes could be obtained in a trial, while the client obtains a fixed and certain sentence without gambling on what a judge or jury might do. Time in the County Jail or Probation? In Smith County, the sentence will be for either prison, jail time or probation. In other counties, the sentence could be for a fine or restitution only. In misdemeanor cases, in Smith County, we often recommend that the client take jail time rather than probation. Here is why. The prosecutors and judges will insist on long probation terms, 15 to 24 months, which cost the client about $65 per month in probation fees, $450 in court costs, 80 hours of community supervision, including trash collection, completion of various course, and compliance with a host of difficult conditions. And if the client violates any of the probation terms, the judges will order his or her immediate arrest without notice or bail, and will almost certainly then order the client to serve the full jail term. In other counties, the conditions are not nearly as harsh or expensive. 3 / 9

4 On the other hand, by accepting jail time in Smith County, the client will usually receive 3 for 1 credit from the jail, and thereby serve a 30-day jail term in 10 days. Further, judges are receptive to work release, so that the client can serve the sentence on weekends. And, the jail gives full day credit for each partial day served. So for instance, a client who agrees to a 30-day sentence, with work release, can check in on Friday at 8 p.m., and out at 6 a.m. Monday, and complete 4 days (Friday, Saturday, Sunday, Monday). With 3 for 1 credit, these 4 days count at 12 days. So the client can complete the sentence in three weekends, saving time and money. Other counties have similar arrangments. Felonies Not surprisingly, felonies are different. Felonies in Smith County are routed to one of three district judges. Each judge has a different approach to cases and prosecution, so it is important to hire a local attorney who understands the judge. It is fine to have an attorney from outside Tyler (or the local jurisdiction), but you also need a local attorney on the team. The prosecutors in Tyler are aggressive. The judges are conservative. Tyler juries are also conservative and favorable to the government. If you or someone in your family has been indicted in Smith County, the odds of dismissal are low. One of the judges has never had an acquittal in his court. With perhaps one or two hung juries, every one of this judge's trials has resulted in conviction. Juries and judges in Tyler give long sentences. So in a felony case, the lawyer's objective is often damage control: to negotiate the best plea agreement possible and avoid disaster and a long prison sentence at trial. Consequently, you need to hire the best defense you can afford, immediately after arrest, with money for investigators and experts and courtroom exhibits. What About Federal Court? The U.S. Attorney's Office for the Eastern District of Texas prosecutes a range of crimes, most often drug manufacturing and distribution, child pornography, illegal weapon possession, explosives, illegal immigration, and financial crimes, such as Medicare or mortgage fraud. 4 / 9

5 Upon arrest, the individual will be presented to a federal magistrate judge quickly, usually the same or next day. The Magistrate will confirm the individual's identity, appoint a lawyer if necessary, determine whether to release on bail, and schedule the trial. As already discussed, the lawyer will gather information, present options, and make recommendations. There are several aspects that distinguish federal court from state court: - Federal courts are faster; - Federal investigators are smarter and more thorough. They prepare their cases carefully before arresting. Consequently, dismissals and acquittals are extremely rare. - Federal prosecutors are more experienced and reasonable, making negotiations more reasonable. - Federal judges, not juries, decide the sentences in all cases. Jurors only decide whether the defendant is guilty or not, and then they go home (the jurors, not the defendant). - Sentences in federal court are governed by a complicated book called the U.S. Sentencing Guidelines. Think of this as a cookbook. One looks up the crime charged, makes a few adjustments, adds the criminal history of the client, and the book will identify the sentence, within a tight range, that the judge is required to impose. Consequently, negotiations in federal court usually revolve around application of the Sentencing Guidelines. What Type of Lawyer Do You Need? So how do you decide which lawyer to hire? It depends on your money and your objective. If the case is a misdemeanor, and the individual does not have a lot of money and simply needs a reasonable plea agreement, then a competent younger or newer lawyer is appropriate. If the individual arrested is guilty of a serious crime and the evidence is overwhelming, then he or she needs the lawyer who is best connected with the prosecutors and judges on a personal level. This lawyer will negotiate the best plea agreement possible. If the evidence is weak, or worse, the individual is positively innocent, then he or she needs an attorney who has tried many criminal cases, knows the rules of evidence and procedure, and is sufficiently likable to jurors. One would not want a young or new lawyer, but one who is older and experienced. 5 / 9

6 If the case is complicated, such as a white-collar case, or a murder case with many witnesses and conflicting events, then one wants a sophisticated lawyer who can construct a comprehensive defense, investigating every lead, finding every witness, preparing convincing courtroom exhibits, and satisfying all of the difficult and vital criminal procedures. If the individual or his family have a lot at stake, and have the money to fight and protect, then the best course of action is to hire a defense team that includes an experience trial attorney, a sophisticated tactician, an appeal lawyer, one or two private investigators, a computer expert, and necessary experts in other fields. What Does a Criminal Defense Lawyer Cost? Let us start at the top. If you or someone in your family is charged with a serious felony, and you have money, and you want to hire a team of the best money can by, plan on an initial retainer of $250,000. This will cover three lawyers, two investigators, and a computer technician. The costs of experts in other fields will be additional and vary according to specialization. The retainer will include construction of most courtroom exhibits, but expensive ones such as video reinactments will cost more. Otherwise, for most felonies, in Tyler, one or two attorneys are sufficient. For a case involving harm to a child, the cost will likely start at $25,000 and range up to $50,000. About the same for a murder case. For all other felonies, the initial retainer will likely be in the range of $15,000 to $25,000. The cost depends on the complexity of the case. If the goal of the person facing a felony charge is to negotiate the best deal possible, without a trial, then the cost will be less, about $7,500 to $15,000, depending on the seriousness and complexity. For misdemeanor cases, if the client has a strong defense, or the evidence is weak, and a trial is required, then the retainer will be in the range $5,000 to $8,500. Trials can also be necessary if the prosecutors are offering an unreasonable plea offer. 6 / 9

7 If the misdemeanor client wants the best plea agreement possible, without a trial, then the retainer will be in the range of $1,200 to $2,000, again, depending on circumstances. If the case is not in Smith County, but in one of the surrounding counties, the costs will be about 25% to 50% higher because of the travel costs. Here is a tip: If you speak with a lawyer and he or she quotes a retainer lower than what we have explained here, you are probably not speaking to a suffiicently experienced lawyer. Take that into consideration. How to Select a Lawyer Resolving criminal charges can be complicated, usually requiring a combination of sound judgment, experience, technical legal knowledge and interpersonal skills. Hiring a lawyer is not like hiring someone to repair your roof. You about to form a personal relationship with someone to whom you are going to pay a lot of money, tell personal secrets, entrust something important, and require success or protection. Here is what you should do: - Meet the lawyer. See if you like him or her. If you do not like the lawyer, chances are neither do judges, other lawyers, or juries. You must have good chemistry. Make sure you understand the cost of the first meeting. - See if the lawyer is interested in you and your problem. Does he or she listen? - See if the lawyer proposes sensible and affordable options and solutions. - Do you like the offices? Good lawyers generally have better offices. - Do you like the staff? Good lawyers train their paralegals and secretaries to be sensitive, interested and responsive. - Does the lawyer return phone calls and s? Clients often complain that their lawyers do not respond. - Is the lawyer going to be reasonable on fees? Good lawyers do not charge for every phone call or , and try to look for reasonable solutions with an eye on reducing the client's costs. 7 / 9

8 - Make sure you understand what the lawyer will charge and when. Understand, however, that lawyers cannot be precise about costs because the direction of the case is determined by the actions of the prosecutors and the judge. The lawyer, however, can provide a range of costs depending on various scenarios. - Ask other lawyers for recommendations, if you know some. What We Do Our law firm represents individuals in all criminal matters from misdemeanors to felonies, including: - White Collar Crimes - Assault - Burglary - Embezzlement - Reckless Driving - Domestic Abuse - Driving with Suspended License - Driving without Insurance or Proof of Insurance - Drug Possession/ Controlled Substance Possession - Drug Sale/ Controlled Substance Sale - DUI - Forgery - Fraud - Hit & Run - Homicide (manslaughter to murder) - Weapons Charges - Parole Violations - Probation Violations - Prostitution - Shoplifting - Theft - Vandalism/ Damage to Property - Web Crimes 8 / 9

9 Mr. Volberding's Experience Mr. Volberding is in his early 50s, so he has a sufficient number of gray hairs to prove experience and knowlege. He is a marathon runner who has tried dozens of criminal cases to juries from misdemeanors up to capital murder, in Smith County and elsewhere. He is double board certified, first in Criminal Law by the Texas Board of Legal Specialization, and second in Criminal Appellate Law, by the same board. He is a CPA, which is rare, and useful in white collar cases. He holds the rank Lieutenant Colonel in the U.S. Army Reserve, Judge Advocate General Corps. (He is a JAG officer). He is currently the Staff Judge Advocate for the 412th Theater Engineer Command in Vicksburg, Mississippi. He has written and filed appeals in many of the most complicated cases in Texas, including the infamous Mineola Swingers Club cases, in which the Smith County prosecutors were found to have withheld vital exculpatory evidence. Mr. Volberding obtained reverals, setting the stage for release of 6 of the 7 defendants. If you or a friend or family member are charged with a crime, particularly one in Tyler, please call Mr. Volberding, or better, schedule an appointment to speak with him. We do not charge an office fee to discuss a criminal case on a pending charge, but the first visit will be charged against your retainer if you hire the firm. Contact Tyler, TX criminal defense attorney James Volberding. 9 / 9

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