Maybe you’ve heard of a friend, a first time offender getting the opportunity to enroll in a program called DPP but what is it and could it be right for you?
What is Deferred Prosecution Program?
The Deferred Prosecution Program (DPP) allows for first time offenders of certain classes of crimes between the age 17 and 24 to complete the program over a period of time to allow the young adult, or juvenile some time to rehabilitate and move forward without the stigma of a criminal conviction. This opportunity has requirements to enroll and stay enrolled that need to be followed closely but for the young adult looking to live their life without a criminal conviction, it is an alternative to the traditional criminal legal process. Once successfully completed the DPP program results in those charges entered against that young adult being dismissed.
If you or young adult child has been charged with an offense for the first time and think you or your child may qualify for DPP, give the Schneider Law Firm a call to schedule a free 30 minute consult with one of our knowledgeable criminal defense attorneys.
How can you help yourself when you are charged with a crime and the way the police have the story isn’t what happened? Your best defense is a lawyer who walks-through the area where the crime allegedly occurred and how everything happened with the client.
The walk-through allows lawyers to later be able to set the scene for a jury to give them a window into your story and what happened during that time.
At the Schneider Law Firm, our team of criminal defense attorneys do walk-throughs on a variety of charges from indecent exposure to murder. If you need the help of a skilled team of trial lawyers ready to defend you and tell your story to the jury, call the Schneider Law Firm to schedule your free 30 minute consult.
As a young lawyer I made MANY mistakes…still do if I’m being honest. One of the biggest mistakes I made was in how I conducted my cross examinations. Like an excited puppy waiting at the door, I would mentally work myself into a tizzy as I listened to the direct examination of opposing witnesses. The anticipation of attack would build in my head. The words “I pass the witness” coming from opposing counsel’s mouth were like the starting bell at the dog track. Unfortunately, like the greyhounds, I would seldom catch the rabbit.
Over time, I have come to learn that great cross examinations have similar attributes. Subtlety, focus, and control come to mind most frequently. Most importantly, great cross examinations require a plan to “box in” the witness with patient questioning so that the witness has nowhere to run when the haymakers are thrown.
Here is a great example of patient “boxing in” questioning from the timeless book The Art of Cross Examination (4th Edition) by Francis Wellman:
The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated. Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination.
Warren (placing his thumb over the seal and holding up the will). “I understand you to say you saw the testator sign this instrument?”
Witness. “I did.”
Warren. “And did you sign it at his request, as subscribing witness?’
Witness. “I did.”
Warren. “Was it sealed with red or black wax?”
Witness. “With red wax.”
Warren. “Did you see him seal it with red wax?”
Witness. “I did.”
Warren. “Where was the testator when he signed and sealed this will?”
Witness. “In his bed.”
Warren. “Pray, how long a piece of red wax did he use?”
Witness. “About three inches long.”
Warren. “And who gave the testator this piece of wax?”
Witness. “I did.”
Warren. “Where did you get it?”
Witness. “From the drawer of his desk.”
Warren. “How did he melt that piece of wax?”
Witness. “With a candle.”
Warren. “Where did the candle come from?”
Witness. “I got it out of a cupboard in the room.”
Warren. “How long should you say the candle was?”
Witness. “Perhaps four or five inches long.”
Warren. “Do you remember who lit the candle?”
Witness. “I did.”
Warren. “What did you light it with?”
Witness. “Why, with a match.”
Warren. “Where did you get the match?”
Witness. “On the mantel-shelf in the room.”
Here Mr. Warren paused, and fixing his eye upon the witness, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone:
Warren. “Now, sir, upon your solemn oath, you saw the testator sign this will he signed it in his bed at his request you signed it as a subscribing witness you saw him seal it. It was with red wax he sealed it a piece of wax about three inches long he lit the wax with a piece of candle which you procured from a cupboard you lit the candle with a match which you found on a mantel-shelf?”
Witness. “I did.”
Warren. “Once more, sir upon your solemn oath, you did?”
Witness. “I did.”
Warren. “My lord, you will observe this will is sealed with a wafer!”
The extreme patience illustrated in Wellman’s example was the key to “boxing in” the witness. Imagine the response the witness would have given had Mr. Warren barreled straight into his line of attack:
Mr. Warren: Sir, you said on direct that the will was signed and sealed with red wax.
Witness: Yes, sir.
Mr. Warren: Yet we see hear it actually is sealed with a wafer, correct?
Witness: You know, you are correct. The sealing was so unimportant I must have forgotten how it was done. I just remember us sitting around the table and he signed it and that was that.
The size of the wax stick, its location, where the matches were and who lit them all seem to be very trivial matters. So trivial, in fact, the witness saw no harm in fabricating the answers. He must have thought “Who would know?” But by building up the surrounding circumstances and committing the witness to a single precise version of events, Mr. Warren was able to “box in” his witness. How now could the witness claim that he merely forgot the type of seal when he just firmly committed with such great detail to the circumstances surrounding the sealing of the will?
Certainly such dramatic events such as the above illustration are few and far between in the daily practice of law. But the same technique can be used in depositions, family law temporary hearings, and evidentiary hearings in criminal cases.
Take, for example, a recent jury trial in which my client was accused of causing bodily injury to his wife. On the stand the complainant alleged that the entire matter started when my client punched her in the face unprovoked. Despite her contention that she had a bruise and redness under her eye for “days” after, the police report contained no mention of any marks to her face the night of the incident despite noting in great detail several abrasions on her arms. During the reporting officer’s direct testimony by the prosecution, he surprised me (and I think the prosecutor) by mentioning that he now remembers (some 15 months later) that there was, in fact, “red puffiness” under the complainant’s eye the night of the alleged incident that looked like she had been hit.
Here is how we were able to “box in” the officer and show that his sudden recollection was less than credible:
Defense: Officer, you said you have been with the force for seven years?
Defense: And before that you were in the academy?
Defense: And like any school the police academy has interesting parts and not interesting parts, correct?
Officer: That’s true.
Defense: And for all the time you spent shooting guns and practicing defense techniques you spent twice as much time in a class room learning things like radio codes, constitutional law, and report writing, isn’t that true?
Officer: That’s true.
Defense: And while the classroom stuff was not near as fun you recognize then and certainly recognize now that things like report writing are critically important, correct?
Defense: In fact, you testified that domestic disturbance calls are one of the most frequent calls you have to make, correct?
Defense: You said you have made over a hundred domestic disturbance calls?
Officer: At least.
Defense: And over time those calls and the facts of those calls and the people involved can start to run together, correct.
Defense: So when you get called to court on a case, some 15 months later, that written report may be the only trustworthy way for you to remember what happened on a particular night, wouldn’t you agree?
Officer: I don’t know about “only trustworthy” way, but yes it does help.
Defense: I’ve read your report in this case. Is that a copy in front of you?
Defense: And I will tell you officer it is a well written report.
Defense: Does it surprise you that some of the reports your fellow officers write can be quite confusing?
Defense: It appears to me that you must have paid close attention when they were covering report writing in the academy. You were clear to note things like demeanor, location, names, times…everything a solid report requires, isn’t that correct?
Officer: I tried.
Defense: They taught you in the academy how it was important to write all the critical facts in the report, correct?
Defense: That is for your benefit if you are ever called to testify, correct?
Defense: And for your benefit if you are ever questioned by your superiors for decisions you made?
Officer: I guess
Defense: And it is also important for the government prosecutors, so they know the strengths of the case and how to proceed?
Officer: You would have to ask them.
Defense: In fact, in probably about 95% of your case the report is the only communication between you and the prosecuting attorney?
Officer: What do you mean?
Defense: In most cases, the arrested citizen is dealt with in the court system without you ever talking to a prosecuting attorney?
Officer: I guess that’s right.
Defense: Back to this case officer, you followed all yoour training in writing this report?
Defense: You even had [the complainant] fill out a written statement correct?
Defense: And this was after you interviewed her?
Defense: And you interviewed her in the living room?
Defense: It was not dark in there was it?
Defense: Then you filled out the family violence packet forms and were careful to note on the diagrams everywhere [the complainant] had injuries correct?
Defense: And that included the abrasions and red marks on her arm and the scrape on her knee, correct?
Defense: And then, after my client was arrested by you, you completed a sworn probable cause affidavit for the local judge to review, isn’t that right?
Defense: And in that sworn affidavit you wrote again about the injuries you observed, the demeanor of those involved, and what everyone at the scene told you, correct?
Defense: And this was a separate document from your report?
Defense: But like your report it was done the night you arrested my client?
Defense: In fact, within an hour or so of leaving the scene?
Officer: Maybe two.
Defense: When it was fresh on your mind?
Defense: Before you were called to any other domestic disturbances?
Defense: And you wrote the complainant was crying?
Defense: And you wrote she said they struggled over a cell phone?
Defense: And you wrote she admitted pushing my client?
Defense: And you wrote my client was wearing a Romo jersey?
Defense: And you wrote he asked to get a jacket because it was cold?
Defense: And you wrote that you noticed a chair knocked over?
Defense: And you wrote that she said she thought my client had been having an affair?
Defense: And you wrote that you could smell a faint odor alcohol on my client’s breath and you saw, and I’m quoting, “a Bud Light tall boy” that was still “cold to the touch.” Correct?
Defense: And you wrote that there was a Samsung Nexus phone with the case removed on the table, correct?
Defense: You wrote that you observed abrasions and marks on her arm and the scrape on her knee, correct?
Defense: You wrote that [complainant] said my client hit her in the face.
Officer: Yes, sir.
Defense: And you also wrote that my client denied that and said [complainant] actually pushed and grabbed him when he was trying to leave.
Officer: That is what he said.
Defense: You wrote with great detail like you were trained correct?
Defense: Yet nowhere in this report did you ever write that you observed “red puffiness” under [the complainants] eye?
Officer: No, I did not.
Defense: And you didn’t note it on the diagram of the injuries?
Defense: And you didn’t put it in your sworn affidavit?
Defense: Three times you noted the injuries you observed and in none of those three did you mention “red puffiness” to the face or any other injury to the face did you?
Officer: I guess not.
Clearly I still have much to learn from Mr. Warren’s example. Nevertheless, by being patient with the questioning of an adverse witness, we were able to “box in” the officer such that it would be extremely difficult for him to retreat to the “honest mistake” position so many “professional” witnesses rely upon when confronted with inconsistency between the testimony and the facts. In my example, the jury was left wondering how such an important detail, if true, could have been missed by the officer. I mean, even the mean old defense attorney admitted it was not a sloppy report that appeared hastily written.
By contrast, if I were to have approached the new evidence of injury with bluster or indignation (or worse by accusing the officer of outright of fabrication) it would have been much more difficult to establish through the officer that his training and otherwise solid report writing were compelling evidence that the failure to contemporaneously note the injury wasn’t an “honest mistake’ in report writing but rather was likely a false memory (or outright fabrication) developed in the time since.
As a final note (which we will discuss later in this series) it is important when cross examining to know when to STOP. So often we see lawyers lose all they have gained by executing a great “box in” cross with a dreaded “how” or “why” question. For the love of the spirit of Daniel Webster please JUST STOP. You as the story teller can provide the answer as to WHY in closing arguments.
Crushing the Cross Examination
Part Two: Proceed with Caution!
To be continued…..
P. Micheal Schneider is the President and Managing Attorney at the Schneider Law Firm, PC in Fort Worth Texas. The firm practices exclusively Family Law and Criminal Defense. Micheal Schneider has been named a Texas Super Lawyer by his peers as published in the Texas Monthly Magazine and has been named a Top Attorney six times by his peers in Fort Worth, TX Magazine.
At the Schneider Law Firm we pride ourselves on representation of clients in all phases of the criminal justice system. While we receive the most accolades for our trial work we are equally proud of the work we do for client’s seeking parole or trying to stay on parole. This blog post focuses on ten common questions we receive from family and friends that want to try and get loved ones released from prison early or from client’s that risk having their parole revoked.
1. What is the difference between probation and parole?
Probation and parole are similar in that they are both alternatives to incarceration. Probation is a sentencing option in lieu of going to prison, where the defendant is supervised by community probation officers. Parole is an early release from prison for offenders who still have time remaining on their sentences. A person on parole is still in the legal custody of the state and is supervised by state parole officers.
2. How soon is a person eligible for parole?
A person’s parole eligibility depends on several factors, including the year in which the offense occurred, if it occurred in a drug-free zone, or if it was a violent offense. In the vast majority of cases, offenders are eligible when their calendar time served plus their good conduct time equals 25% of their original sentence.
3. Does an offender benefit from having an attorney when seeking parole?
Yes. Unlike what you may have seen on television, most offenders never get an in-person interview with the members of the Parole Board. The decision of the Board is often influenced by what is contained the offender’s file, including police reports, reports of probation violations and victim statements. Having an attorney to advocate on behalf of the offender can be a significant advantage.
4. How soon should an offender begin preparing for his or her parole?
Sooner is always better. The attorney will need to file paperwork with the Board, will need time to interview the offender and to create a thorough parole presentation package. Family members will need time to write and gather letters of support. A good rule of thumb is to allow at least six months before the initial parole hearing.
5. How is the parole process handled and who determines whether an offender is granted parole?
There are seven Board offices throughout the state. Prisons in Texas are regionally assigned to one of the seven offices. When an offender is eligible to be considered for parole, his or her file, along with any letters of support or parole packages will be transferred to the applicable office where a voting panel will review the file and vote to determine whether or not to grant parole. The voting panel usually consists of two commissioners and Board member. An offender needs two affirmative votes in order to be awarded parole.
6. What is considered when an offender is up for parole?
The Board has developed a set of parole guidelines as a tool to help them to determine an offender’s probably for success on parole. These guidelines include factors such as the offender’s criminal history, employment history, age, and the severity of the offense. The voting panel will also consider an offender’s prison disciplinary conduct, whether he or she has participated in vocational or character development programs, and whether the offender’s release plan is suitable for successful reintegration.
7. What happens if an offender gets into trouble while on parole?
Parole is a privilege that can be revoked if the parolee does not follow the rules and conditions associated with his or her release. Sanctions for parole violations can range from a verbal reprimand all the way to a full revocation of parole.
8. What is a parole revocation hearing?
If an allegation of a parole violation has been made, parolees have the right to ask for a revocation hearing. During a revocation hearing, the allegations of wrongdoing must be proved by a preponderance of credible evidence.
9. Who decides whether a parolee should have his parole revoked?
In the event of a parole violation, parole officers and parole supervisors often provide the board offices with a narrative of the violation along with their recommendation on whether or revoke parole or to continue supervision, but the voting panels at the Board offices make the final determination.
10. Does a parolee have a right to an attorney at a revocation hearing?
Yes, parolees may hire an attorney to serve as their advocate during the revocation hearing. In some cases indigence or where mental competency is a concern, the state may appoint an attorney. The attorney can present evidence, examine witnesses and cross-examine adverse witnesses.
Trent Marshall is a veteran attorney with considerable parole law experience. Prior to joining the Schneider Law Firm, he was a commissioner with the Board of Pardons and Paroles. Mr. Marshall was also appointed by Governor Perry to serve as a member of the Polygraph Examiners Board and the Texas Board of Criminal Justice Advisory Committee on Offenders with Medical and Mental Impairments.
If you would like to discuss your case with Mr. Marshall, he can be reached at 817-850-9955 or by email to firstname.lastname@example.org