A Gain in a Loss

The last post was about a trial win. This one is about a trial loss. In baseball, there’s a thing referred to as a “productive out;” a grounder, fly-ball or other out that moves a runner or scores a run. A violation of probation hearing was one stop in this case’s long and winding road. Although we were not successful in the hearing, holes in the state’s case were exposed which led to a favorable plea offer.

My client was originally arrested in 2010 for the charges of assault second, breach of peace and carrying a dangerous weapon for a fight. He was on probation at the time and a violation was charged. A few months later he pled to the VOP and the assault and went to jail. When his sentence concluded, he was not released but went into ICE custody and deportation proceedings. He is a permanent U.S. resident, not a citizen, and the assault conviction and sentence were deportable. Because certain convictions can cause a non-citizen to be deported, judges must include deportation warning when they canvass defendants who are pleading guilty and attorneys must advise their clients of possible immigration consequences. The client discovered these errors in his case and successfully moved pro se to vacate the pleas and sentences. His cases returned to where they left off before he entered the pleas.

Because the client fully served his sentences, he had postconviction credit available toward any jail sentence. The State’s offer was for the same charges that led to the deportation proceedings. The client’s goal was to stay in the country. When a violation of probation (VOP) is charged, a hearing must be scheduled within 120 days. A VOP (officially a revocation of probation) hearing is a court trial–there is no jury–and the State’s burden is to prove by a preponderance of the evidence (the usual civil burden; lower than the criminal beyond a reasonable doubt burden) that the defendant violated a condition of probation, and if so, that continued probation is not appropriate. One of the standard conditions of probation is to not violate any criminal law of the United States or any state. In this case, the criminal charges were the alleged violation. We essentially had a trial on the criminal charges without a jury and with a lower burden before the actual criminal trial, which would have had a jury and criminal burden. In many cases wherein criminal charges serve as the bases for a VOP, the trials are consolidated with a jury deciding the criminal charges and a judge deciding the VOP. In our case we went to the VOP hearing first. Although we wanted to win the VOP hearing, since the VOP did not have any immigration consequences and the client had jail credit available, we also used it to flush out the State’s case before the criminal trial.

We argued self-defense in the VOP hearing. On cross the complaining witness admitted to jumping my client and winning the fight before the client, who was pinned to the ground, stabbed him in self-defense. The court found that there was enough evidence to show that a condition of probation was violated. Because the criminal burden is higher, one could lose the VOP and still be acquitted in a criminal trial. After our hearing, the State offered the client a plea offer for a misdemeanor with no jail time that would likely not have any adverse immigration consequences. The client accepted.

An acquittal is a clear win in any criminal case. It is not the only kind of win. A case is won when a client obtains the best outcome for his or her case. Not all cases should go to trial and the vast majority do not. In a case that is untriable because of its fact situation, the best outcome might be a lesser charge or jail sentence that can come from a plea bargain. An agreement of community service or a program for a nolle or dismissal is also a great outcome in many cases.That is why it is important in the attorney-client relationship to identify the client’s goals and develop a strategy to obtain them.


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