"Consult your attorney" only makes sense if I know what to ask

November 15, 2011 6:59 AM

I was recently arrested at Occupy Atlanta. Background here. What should I be sure to ask/say when I meet with my attorney soon?

I suspect that I will be able to maintain communication in the future via email or phone but I would like to discuss as much as possible when we meet in person and I would appreciate as many ideas/suggestions as possible about what I should ask about. If it matters, I am a mid-20's white male grad student.

I have my first meeting soon with my (pro bono) attorney over my misdemeanor charge of violation of Atlanta Code of Ordinance Section 110-60, use of a park after closing time. I want to make sure I cover everything that I need to with him. I have at least three broad areas of concern.

1. I am continuing to be active with Occupy Atlanta. I may be intentionally or unintentionally arrested again at some point. The first time, I got out of jail in around 15 hours on a signature bond. I plan to ask how my previous arrest (but no conviction) might affect any future charges or the process of me getting out of jail.

Specifically, I'm wondering if I might be held in jail longer if I am arrested again, and if I may no longer be released on a signature bond. What other questions should I ask about additional arrests or charges?

2. When we first met at jail, my attorney informed me that anything I say can be used against me in a court of law. As part of my continuing support for Occupy Atlanta I would like to discuss my arrest online (and potentially in other forums). Are there any questions I should ask related to balancing my interests as a defendant versus engaging in active civil disobedience?

3. At some point I will have a motion hearing, and then potentially an actual trial. There has been word from the prosecution that there might be a plea deal possible, and the initial offer was a $130 fine and 30 days in jail. My attorney passed this information along to me and noted that he suspects he could get the jail time reduced to community service. I plan to ask what is the maximum punishment I can face if convicted and whether I am getting a jury or judge trial. Are there any other questions I should be asking related to my trial or a possible plea deal?

I would appreciate any other suggestions if there seems to be something I'm forgetting or an important issue to ask my attorney about. [I know none of you are my attorney, I am asking for what questions I should ask my attorney, and not for legal advice.] Thanks.

posted by anonymous to Law & Government (13 answers total)

Some states, including Georgia, have 3-strikes laws where you face severe penalties if you are convicted for three crimes. I think they usually apply to felonies only, not misdemeanors, but it might be worth clarifying with your attorney.
posted by insectosaurus at 7:09 AM on November 15, 2011

Here's another issue: You know how some job applications ask about prior criminal convictions? What are the implications, for job applications, of taking a plea bargain rather than facing a possible conviction? Would a plea bargain need to be disclosed in that setting?
posted by insectosaurus at 7:13 AM on November 15, 2011 [1 favorite]

Ask about expungement/sealing of the record. Which offenses can be expunged (whether you plead guilty or are adjudicated guilty)? How long before they can be expunged? Will you be able to handle the expungement without an attorney? If not, will your attorney handle it? Is there a legal aid organization that does expungements?

Ask for copies of all your pleadings, all motions, all orders entered by the court, anything you sign. all police reports or records your attorney gets, and keep them. It's best if you can keep them in the order they are in the court file, but not necessary.
posted by crush-onastick at 7:16 AM on November 15, 2011 [1 favorite]

I'd ask what your attorney thinks are the odds you can get the charges dropped or dismissed if you just wait it out. If this is a public defender, keep in mind that your incentives may be different from those of your attorney, who likely has a large docket, and those of most of your attorney's clients, who may on the whole have different expectations with respect to having a criminal record. If you want to really fight this, you may need to clearly assert that desire.
posted by dixiecupdrinking at 7:20 AM on November 15, 2011

Have you contacted the local ACLU?
posted by empath at 7:52 AM on November 15, 2011 [5 favorites]

You have what an amounts to an absolute right to a trial by jury in criminal cases. If this really is a misdemeanor charge, not an administrative violation like a parking ticket, the Sixth Amendment right to a trial by jury would seem to apply. You can always waive that right--whether or not you choose to is something you should discuss with your attorney--but I can't think of a reason why you wouldn't be able to get one if you demanded it.

One of the things that judges evaluate when they set bail is likelihood that the accused will re-offend. Getting arrested a second time for the same thing sort of gives that one away. If you do get rearrested, you can fully expect your second bail to be set higher than your first, assuming it's even granted. Definitely ask about how that's likely to work.

Something else to consider is that employers, universities included, have the right to dismiss employees who are convicted of criminal offenses. In addition to potentially getting the company involved in publicity it would rather avoid, employees who are in jail are not at work. Given that you're a grad student, your particular employer may take a more lenient approach to this than a more traditional employer might, but you should definitely keep that in mind and discuss it with your attorney or an employment attorney if necessary. Also understand that this is going to show up on your background checks from here on out, so it's something you're going to have to explain in future job interviews.

You should definitely talk to your attorney about the maximum available punishment. The Georgia City Code provides the possibility for what look like pretty stiff penalties, and a court might decide to construe violations that last for more than a day as individual offenses for sentencing purposes, i.e. camping out twice in a row could count as two separate misdemeanors. If the city government really decides to throw the book at you, this could quickly add up into significant jail time. Your attorney will be able to talk to you not only about what the maximum possible penalties are, but the maximum likely penalties are, as the city may not assign all violations the same weight and may or may not have a formula for these things.

Definitely consult with the ACLU.
posted by valkyryn at 8:57 AM on November 15, 2011 [1 favorite]

30 days in JAIL for "use of a park after closing time?" Unconscionable.

Plead not-guilty and ask for a jury trial. Try to get as many as your fellow arrestees to do the same.
posted by rhizome at 9:52 AM on November 15, 2011 [2 favorites]

30 days in JAIL for "use of a park after closing time?" Unconscionable.

The Atlanta code seems to provide for up to six months in jail for violations. But the penalties for violations of any section of the code are all in a single section which seems to establish more legal maximums than particular penalties for particular violations. This is why consulting with local counsel is going to be so important. The prosecutor's practice here is going to be at least as important as the law on the books.
posted by valkyryn at 10:32 AM on November 15, 2011

Ask you lawyer whether s/he knows the prosecutor and the judge in the case - has s/he dealt with him/her before. Ask what the typical result in these cases are. Are the procescutors dealing with these arrests on a case by case basis or lumping them together with a certain expected outcome. I am not offering any advice but you have already spend more time in jail than this charge should get you.
posted by JXBeach at 10:56 AM on November 15, 2011

"amounts to an absolute right" is not how I would describe the jury trial right: There is no federal constitutional right to trial by jury for "petty offenses" (carrying prison terms of no more than six months). Your attorney will be able to tell you whether you, specifically, have a right to a jury trial, given your circumstances (charges / state constitutional law / etc.) -- more importantly, she can tell you whether it is a good idea to use it.

Not all plea bargains will give you a "criminal record." Public defenders I know absolutely try to keep their clients from getting criminal records, and all the collateral consequences that come with them (which are, in fact, often more severe for more typical public defender clientele, given immigration issues and blue-collar jobs less interested in one's explanation of why that particular arrest was virtuous). If a public defender is advising you that a certain deal is a good one, ask and understand why, and listen carefully.
posted by deeaytch at 11:15 AM on November 15, 2011

It looks like the ACLU of Georgia has a document for protesters - see here and click on Georgia: http://www.aclu.org/maps/aclu-affiliate-involvement-occupy-movement-around-country
posted by insectosaurus at 12:14 PM on November 15, 2011 [1 favorite]

In addition to the ACLU, the National Lawyers Guild has been doing tons of pro bono arrest work related to the protests. Talk to them if you haven't already.
posted by User7 at 7:10 PM on November 15, 2011

As for the signature bond thing, in many places you only get one. If you are already out on one signature bond, you'd have to put up a cash bond or bond card for any further arrests until the first case is satisfied.
posted by gjc at 2:51 PM on November 16, 2011