February 23, 2011 11:05 AM   Subscribe

YANML. My son is being charged with 4th degree felony.

My son made a stupid mistake. He got drunk and had a incident with the police, resulting in charges of assault and attempting to disarm a police officer. There is some assumption that the assault charges are from spitting. My son claims to remember nothing. He has no previous legal problems. Due to all this he is starting substance abuse counseling soon, probably within a week or two. My son is 25 years old. The charges stem from two events, one at a bar and subsequently at the police station. My son's lawyer has video of the event at the bar and apparently there's no obvious spitting (or disarming attempts) occurring there.

So far there has been one meeting with the lawyer and the prosecutor. The prosecutor offered 60 days and a gross misdemeanor. My son refused that. The next court date is in about a month. There _may_ be more discovery material in that time, mostly, as I understand it, a request has been made for any video from the police station.

So, I know there's probably too many unknowns, but how do we decide on how to proceed? That is, how do we know what to accept, or not, for the next offer? While I'm sure that my son broke the law and there should be consequences, is there really any value, from the prosecutor's point of view, of him spending time in jail? He's clearly not a threat to society.

The lawyer we've hired seems capable enough and we're trying to follow his lead. (However, skeptically, he gets paid more if we go to trial.)

I guess I'm just looking for any advice that might be out there. I'm conflicted by wanting the best outcome for my son, wanting him to be responsible for his mistake and wanting this all to be done.
posted by anonymous to Law & Government (28 answers total) 1 user marked this as a favorite
I guess I'm just looking for any advice that might be out there. I'm conflicted by wanting the best outcome for my son, wanting him to be responsible for his mistake and wanting this all to be done.

I think you are a good parent for wanting to make sure your child is dealt with fairly and is safe. I also think you are a good parent for wanting him to take responsibility for his actions.

I guess my question to you is what is more important here? Do you see him as being a pretty stand up citizen, and this is a freak accident which everyone has- I ripped a license plate off a car and got busted, or is it more important that he really understand that there are consequences to our actions.

I think talking to the lawyer is the best solution here to see if he can get out of doing any jail time. As for the moral aspect, I'm sorry I can't be of more help.
posted by TheBones at 11:14 AM on February 23, 2011

I'm conflicted by wanting the best outcome for my son, wanting him to be responsible for his mistake and wanting this all to be done.

Don't say anything about "responsibility" in court or in public, unless the lawyer tells you to. (Actually, just don't say anything at all unless he tells you to. As the miranda warning goes, anything you say can and will be held against you in court)

You want your son to be acquitted. "Being held responsible" would probably be the worst-case outcome of this ordeal.
posted by schmod at 11:15 AM on February 23, 2011 [13 favorites]

The scary part is that he doesn't remember any of this. He could very well have done what the officer has alleged. I doubt you'll get a better offer from the prosecutor knowing that it's not even your son's word against the officer's. It's the officer's word against a videotape which may not tell the whole story and the officer will be allowed to explain without anything really to impeach his testimony.

From the prosecutor's standpoint, they can't allow police officers to be assaulted or anyone to try to disarm them. If they went easy on your son, it sends a bad message and precedent.

Think of it this way, your son's lawyer can make a gamble and is still going to get paid. Your son may end up with a felony conviction on his record as a result. You may want to look at lawyer's who are better at negotiating pleas than one who often goes to trial. Maybe you'll get the same offer again and maybe, just maybe, he'll get lucky and less time will have to be served. Perhaps a stint in rehab would make the prosecutor go easier.
posted by inturnaround at 11:19 AM on February 23, 2011 [1 favorite]

The lawyer gets paid more if you go to trial because a trial is multitudes more work than a settlement.

Gross misdemeanor is far "better" than a felony, which can seriously affect employability in the future. There's always the "Have you been convicted of a felony within the last X years. If yes, please explain..." question.

Why did your son refuse the initial settlement offer? If he doesn't remember, and the video requested from discovery comes to show that he committed the acts with which he is charged then you're left with zero bargaining power.

Practically speaking in most likelihood the prosecutor doesn't want to go to trial either, he has a stack of fifty other cases to work on. The prosecutor wants to settle, but if you come across as defiant in the face of damning evidence (in a case involving assault against the police no less) then you may get the "Oh yeah well screw you" treatment.

I don't see why your three wants are necessarily in conflict. What's your best outcome scenario, no jail time?

My non-professional advice would be to settle and move on. Lesson (hopefully) learned. Jail time will be involved. That's the price.
posted by karmaportrait at 11:20 AM on February 23, 2011

I'm conflicted by wanting the best outcome for my son, wanting him to be responsible for his mistake and wanting this all to be done.

I am sorry that your son is in this situation, and glad that he is taking the substance abuse issues so seriously. I wish him all the best with his recovery and with negotiating this legal dilemma.

Your conflicts are totally understandable, and this is why lawyers exist, because it's important for people who don't have a personal investment in this stuff to negotiate the outcomes, yes?

The reasons lawyers get paid more to go to trial is because going to trial is a ginormous pain in the ass and very labor-intensive. Without knowing your lawyer, I would hazard a guess that he or she does not want to string you along and go to trial just for the sake of the money--unless you had horrible luck and found an unusually venal lawyer, it's not likely.

Talk with the lawyer about whether he or she thinks the prosecutor will make a better offer. But your son needs to take the lead here; he's an adult at age 25, and though your support is going to be key in helping him through this, you also need to encourage him to be in charge of his own life.
posted by Sidhedevil at 11:20 AM on February 23, 2011 [8 favorites]

I agree with schmod, don't be conflicted. The State is not on your son's side, you need to be.
posted by the mad poster! at 11:20 AM on February 23, 2011 [7 favorites]

Ideally, the plea would be to a charge that wouldn't prevent your son from getting a job (something that sounds vague, non-violent, and minor like failure to give identification to a police officer is better than some misdemeanor assault) and doesn't have jail time. There may be a practice in your jurisdiction that allows the judge to defer entering a judgment in the case and, upon successful completion of probation, to dismiss the case. Really though, your attorney is the best guide, not internet strangers who don't know what jurisdiction you're in and what gross misdemeanor is being offered.

The prosecutor may be judged on statistics, such as how many cases result in a conviction or guilty plea or how many of those folks serve jail time, so from that perspective, the prosecutor may look better if your son goes to jail. But, above all, the prosecutor's job is to see that justice is done, not to look good for a stat sheet.

Don't be suspicious that your lawyer charges more to go to trial. It is monumentally more effort to find witnesses, interview potential witnesses to figure out what they know, prep your witnesses for trial, prepare direct examination for your witnesses and cross-examination of the government's witnesses, as well as opening and closing arguments, than it is to negotiate a plea bargain. I would be suspicious of a lawyer who didn't charge more to go to trial.
posted by *s at 11:28 AM on February 23, 2011 [1 favorite]

Several items of advice:

1. Your son should take the misdemeanor and the 60 days. Sixty days comes and goes and he'll be out before summer. Conversely, if he goes to trial he's looking at a felony conviction, which will adversely impact him for the rest of his life.

2. Sixty days is a good amount of time to get his head on straight. It will also be sixty days where he has no access to alcohol, because...

2. Your son needs to quit drinking. Forever. Incidents like these don't come singularly. Binge drinking to the point of memory loss and getting arrested is a recipe for tragedy.
posted by DWRoelands at 11:28 AM on February 23, 2011 [24 favorites]

I'm going to expound more on my earlier answer. The best possible scenarios here, vis-a-vis your son's obligations to "society" as represented by the state, would be that your son either cut a deal for a suspended sentence on a misdemeanor or went to trial on the felony and was acquitted. That's something the lawyer can handicap better than any of us can.

But there's another arena in which you have control over how seriously your son takes his responsibilities for this situation, and that's between the two of you (or between you and his other parent[s]). And that's something you need to take seriously. I can imagine that your first impulse must be to fix this, because nobody wants their child going to jail. And obviously you need to do everything you can to help, because going to jail almost never helps people recover from their poor impulse control or substance abuse issues.

But the question is this: how responsible and accountable are you (and other parent[s]) going to hold him for his poor choices? Is he the person negotiating with his lawyer? Is he paying for his representation, or, if that's not possible, does he have a plan to repay whoever is paying?

I have known quite a few people whose parents took charge and "fixed things" for them when they fucked up and made poor choices inspired by substance abuse (as opposed to offering support and resources, which is not the same thing). One man of my acquaintance (the ex-husband of a good friend) is 50 and his parents, who are in their 80s, are still doing it. When my friend filed for divorce, his mother called her to convince her to change her mind. My friend pointed to her ex's three recent DUIs as one example of why she wasn't going to stay in the marriage; the mother said, "Oh, only three DUIs? Gosh, that's not so many; his brother has six."

Being supportive without being enabling is a really tough challenge, and I honor you for being there for your son. But I would really encourage you to get some advice--either from a support group like Al-Anon or from a counselor or both--to help you help him in a way that fosters his taking charge of his own life.
posted by Sidhedevil at 11:35 AM on February 23, 2011

"However, skeptically, he gets paid more if we go to trial."

Yeah, he still doesn't want to go to trial. He doesn't get paid ENOUGH more to make it worth going to trial.

Without looking at the evidence, I would also take the misdemeanor. Anything to avoid a felony conviction. (Your SON refused the plea deal -- what was the lawyer's take? Maybe the evidence is really great for your son and a better plea deal will be forthcoming ... or maybe your son is not operating within the realm of reality and just traded a misdemeanor for a felony.)
posted by Eyebrows McGee at 11:41 AM on February 23, 2011

MY wifes father is a lawyer. Trial is a pain. When hes on trial ALL his spare time. Even when he is eating dinner is spent studying for the trial and doing paper work. That is why he gets paid more when there is a trial.

The misdemeanor is much better then a felony
posted by majortom1981 at 11:48 AM on February 23, 2011

I'm a criminal defense attorney. Here's my advice:

1. There may be some things that the attorney and your son can't discuss with you to preserve attorney-client privilege. It's not anything against you personally, it's just the way it is.

2. No question is too stupid or small for the attorney to answer--any good attorney will make sure that you and your son understand everything that's going on and all the possible outcomes--but you also have a responsibility to ask your questions in a way that allows the attorney to focus on your son's case. Do make a list of your questions and then ask them when you meet with the attorney, or email him or her, or call the office and leave a message. Don't call the attorney 5 times a day every time something pops into your head. Do take notes about what the attorney says, and ask clarifying questions if you don't understand the answer. Don't ask the same question week after week and expect a different answer. I will sit and answer questions for hours, but I get aggravated when I spend 45 minutes explaining the client's options and then a week later I'm explaining everything again because the client doesn't want to accept the options.

3. The best way your son can help his attorney is to think about what deal he's willing to accept. For example, perhaps it's important to your son not to have a felony on his record, and he's willing to do any amount of community service and pay any amount of fine. Maybe he's willing to go to a substance abuse class. Maybe he's willing to be on probation longer in order to avoid any prison time. Having your son think about these things and then telling his attorney will allow the attorney to more successfully negotiate with the prosecutor.

4. Your son's attorney will recommend what he or she thinks is the best course of action for your son, but it's your son's decision on what to do. He'll be taking responsibility for his actions by choosing a consequence for them, and then by having to abide by that consequence.
posted by lockestockbarrel at 11:48 AM on February 23, 2011 [10 favorites]

Seriously, don't take any advice in this thread about whether or not your son should or should not take a plea, go to trial, or accept or reject his attorney's advice. Also, your son is 25 and the attorney represents him, not you, no matter how involved or concerned you are--there will be things your attorney and son discuss which you cannot be told without jeopardizing your son's case. For similar reaons, do not talk to the state's attorney or the police without your son's lawyer present. Encourage your son to listen to his attorney and ask the attorney questions. Things to ask about:

1. Ask about expungement laws in your jurisdiction. What sort of convictions (and a plea will be a conviction) can be expunged? When? Which ones can be sealed? When? Who has access to sealed or expunged records in your jurisdiction? Will your attorney handle that? If not, can you have the name of an attorney or clinic who will?

2. What treatment services does your court offer? Are there diversion/drug-alcohol court alternatives? Is it to late to have your son's case handled there? What impact does your son's enrollment in those services of his own accord have on probable sentence? On a possible reduction in charge? On the likelihood of the case being dropped with leave to reinstate? If the charge is dropped with leave to reinstate, how long does the state have to reinstate the charges? What is likely to prompt them to reinstate charges (failure to complete the treatment program? being rude to a police officer in a bar?)

3. What are the differences between the charges as filed and the reduction offered in the plea with regard to sentence, expungement, post-conviction impact on work, school? Can the rejected plea be reoffered or renegotiated or reinstated by the court?

4. What does the state have to prove to win a conviction as charged? What is the likelihood that they can prove it? What will the state have to prove to win conviction on the lesser charge offered at plea? What is the likelihood they can prove that? Are they entitled to a conviction on the lesser charge if they can prove it or is it an all or nothing sort of charge?

5. Whether your son's family will be permitted to address the court at any point in the proceedings.

You should attend as many hearings as possible, dressed neatly and behaving respectfully (turn your cell phone completely off--no vibrate. arrive early. try not to whisper too much) as possible and make sure the judge knows you are present on your son's behalf.

Best of luck to you and him. I am sorry there are no services available to defendant's families. Try calling a local law school's criminal defense clinic or any local legal aid services and ask if there is someone who can help you understand the process better. You'll get significantly better advice there than you will here.
posted by crush-onastick at 11:53 AM on February 23, 2011 [12 favorites]

The District Attorney's agenda is not necessarily fair treatment. DAs have political and other agendas.

The government deals with people unfairly every day. It is a mistake to just trust the system - if you care about your son, you should be actively working for him to get acquitted. Then deal with whatever other problems he has.

It is also a mistake to think that 60 days in prison is going to straighten him out. Prison often creates all sorts of new problems. Prison is not about rehabilitation, it is about retribution.

What is your goal - to punish your son? or to help him work through his problems? If you want to punish him, then leave it to the government. If you want to help him, then fight for him.
posted by Flood at 11:54 AM on February 23, 2011 [4 favorites]

To reiterate what's been said already, he needs to avoid a felony. Virtually all job applications ask about felony convictions. Many don't inquire about misdemeanors. Those that do may only ask about convictions in the past 5 years or 7 years...etc. Not to mention the impact of a felony on finding housing, voting, gun ownership, etc.

Does he have anything going for him? Current job or enrollment in school? These things could help negotiate reduced jail time in a plea agreement.
posted by Beardsley Klamm at 11:57 AM on February 23, 2011 [2 favorites]

You mentioned the video from the incident at the bar. Is there also video (or audio) from the "disarming" incident at the police station? Clarify that before your son makes any decisions. Either confirm that it does not exist, or make sure your son and his attorney have seen it, as they are entitled to, if it does exist. Get complete information first, then decide.
posted by Corvid at 12:31 PM on February 23, 2011 [2 favorites]

Having a felony conviction on your record is very bad. So is taking a deal for something if you could otherwise win at trial. Your son's lawyer should have a frank discussion with your son regarding his chances of winning at trial. He will then need to decide whether he wants to risk giving up the offer to NOT have a felony on his record.

It's good that you're so concerned about the process and what happens, but in the end, your son just needs to be aware of the potential outcomes and have the probabilities explained to him regarding his chances at trial. Then he needs to pull the trigger and make the decision himself.

This is not legal advice; your son has an attorney for a reason.
posted by Happydaz at 12:51 PM on February 23, 2011

One thing to keep in mind: the internet is forever. When considering whether to prolong the process, know that whatever shows up in the newspaper about this will not go away. Most newspapers do not have policies to remove stories once they're online, and most will refuse.

Talk and talk to your lawyer and son about employment issues, what outcome is the worst for him to chance carrying around, and what the public repercussions might be.

I know the altercation might sound trivial but many police departments forward mugshots and criminal info to papers, who put them online. They are out there and will be out there when an prospective employer Googles him.

When this is resolved, and preferably in whatever way doesn't involve him becoming a convicted felon, he may want to expand his online presence considerably and drive down any search results that may include this incident.

Agree with the statement above that while it's admirable you want your son to take responsibility and deal with the repercussions, now is not the time. The repercussions could hurt him far more and for far longer than is in anyway fair, and you want to help him do what he can to avoid that fallout.
posted by A Terrible Llama at 1:25 PM on February 23, 2011 [2 favorites]

While I'm sure that my son broke the law and there should be consequences, is there really any value, from the prosecutor's point of view, of him spending time in jail?

What you've said here isn't enough to be sure he broke the law. Maybe he was just verbally disrespectful and pissed off a police officer, who decided to call it assault and an attempt to disarm. Independently concerning is that he doesn't even remember what happened, but don't worry about helping the police and the DA out in their attempt to jail your son. That won't help him with whatever substance problems he might have. Support him, take notes, ask reasonable questions at reasonable times, show up looking like a citizen.

One reasonable question to ask: how can he be expected to decide on a plea offer when he doesn't know whether there is videotape from the police station, and if there is, what's in it?
posted by palliser at 1:53 PM on February 23, 2011

Can he do the 60 days in rehab? Or in community service or work release? Misdemeanor is better than felony.
posted by Ideefixe at 2:21 PM on February 23, 2011

Your son needs to quit drinking. Forever. Incidents like these don't come singularly. Binge drinking to the point of memory loss and getting arrested is a recipe for tragedy.

There's been much talk in this thread of how onerous it could be for your son to get stuck with the wrong kind of criminal record. I have no argument with any of it.

But if it were my son, what would concern me most is that he's twenty-five and messing up so badly with alcohol (drugs?) that he can't remember what he's done while under the influence. Twenty-five is too old for this kind of behavior. Your son must take all necessary steps to deal with it. Detox, rehab, AA, counseling -- whatever it takes.

Good luck. He's lucky to have a parent that cares as much for his welfare as you do.
posted by philip-random at 2:41 PM on February 23, 2011

The cynical part of me-well, that's really all of me-says your job is to support your son, not necessarily believe everything he's saying. Enabling isn't helping. Either your son got so drunk he doesn't remember what he did, or he's pretending not to remember because he doesn't want his mom to know the truth.

And maybe he only spit on a cop, or maybe he physically assaulted one. Neither is OK-being a cop is a really sucky job, and getting spit on by drunk people is just one of the more charming aspects of the job. I'm glad you're taking this seriously. I just don't want you to end up in the position of so many relatives I work with, denying their child's responsibility, rolling their eyes at the judge, blaming the cops, while their daughter sits there with scabs all over her face after a bag of meth fell out of her vagina. Addicts will lie so they can keep using-you just need to guard against any enabling.

And yeah, support your son-but at 25, he really needs to take the lead in figuring out what to do. Good luck to you.
posted by purenitrous at 3:04 PM on February 23, 2011

how do we decide on how to proceed?

This is a question for your lawyer to answer.

skeptically, he gets paid more if we go to trial.

For what it's worth, IAAL (however not YL), and from my perspective: yes, I do get paid more on your file if I take it to trial; however if I'm in trial I'm also not billing on my other files because I'm working round-the-clock on yours. In the end, when you factor in the inconvenience, it's really not worth it to push for a trial without a good reason to do so. My personal experience is that the lawyers who would take a case to trial when there is a realistic possibility of settlement are very, very few.

I would suggest that you make an effort to listen carefully to what the lawyer tells you. Statements like this:

He's clearly not a threat to society

read as problematic to me; you may be convinced of this, but that does not mean a judge or a jury will be. Remember that your son must answer to the law, and that therefore the law - and not your emotions - should inform your decision making.

If your lawyer isn't answering your questions so that you feel you can make an informed decision, then you may wish to consider getting a second opinion.

None of the above is legal advice or a legal opinion.
posted by AV at 5:40 PM on February 23, 2011

I don't know if it exists in your state, but you should tell your son to discuss first offender status with his lawyer.
posted by donpardo at 6:59 PM on February 23, 2011

>>So, I know there's probably too many unknowns, but how do we decide on how to proceed? That is, how do we know what to accept, or not, for the next offer? While I'm sure that my son broke the law and there should be consequences, is there really any value, from the prosecutor's point of view, of him spending time in jail? He's clearly not a threat to society.

I'm not saying to take the offer and plead guilty. I'm also not saying not to. Your son needs to decide that, and this is not legal advice.

That said, if he committed a crime that's punishable with jail time, that's enough for a prosecutor -- there doesn't need to be "value" in him spending time in jail. I also get the sense that the justice system tends to frown on these things (e.g. an assault by spitting on a person) more when they involve civilians interacting with cops. So the value, from the city/county/state perspective could be that they don't like it when black-out drunk assholes fuck with cops.

If I were you and your son, I would talk with your son's attorney and ask why he's recommending this deal. Without knowing anything more than is in this question, I would seriously consider taking it, if for no other reason than having a felony on one's record is generally not a good thing. And a credibility dispute between a drunkard and a cop, especially when the drunkard claims not to remember the alleged incident at all (rather than actually disputing the officer's version of events) is tough to win.
posted by J. Wilson at 7:12 PM on February 23, 2011

While I'm sure that my son broke the law and there should be consequences,

You're not sure. You have no idea what happened. Listen to the lawyer. If you're not sure, get a second lawyer. You're dealing with the law, your moralizing is out of place.
posted by spaltavian at 7:23 PM on February 23, 2011 [2 favorites]

Let your son and the lawyer deal with the law. But you should deal with your son: make sure his head is on straight. Is he not taking the deal out of stubbornness? Because it kind of sounds like he is- he doesn't remember what happened, but he still proclaims innocence? Seems kind of stubborn and wishful-thinking to me.

I also think the "did he spit or not" thing is a derail. There was an incident that led him to get arrested. *something* happened, that's the problem.
posted by gjc at 6:15 AM on February 24, 2011

"While I'm sure that my son broke the law and there should be consequences, is there really any value, from the prosecutor's point of view, of him spending time in jail?"

Counting on reasonable thinking or compassion from a prosecutor is a huge, huge mistake. Putting people in jail is their job and by God, they will do it. The value for him is that he gets a win in his mental record of wins/losses and he gets a "scumbag" off the streets.

Your son is only a special snowflake to you. To the prosecutor, he's a criminal.
posted by chairface at 6:50 PM on February 24, 2011 [1 favorite]

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