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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16369
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I am a Louisiana pastor and one of my members was on parole

Resolved Question:

I am a Louisiana pastor and one of my members was on parole as a sex offender. After having served two years of his five-year parole, he was arrested in a sting operation in Shreveport for solicitation and placed back in the parish jail without bail.

Even though the maximum sentence for this misdemeanor is six months, he has been in jail for over 14 months without a trial. Is this legal?
And does he have any recourse?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
I don't have much information, but it looks to me that everything is perfectly legal. The reason this person is still incarcerated has nothing to do with the misdemeanor and more to do with the fact that the rearrest caused parole to lodge a violation. He owed parole 3 years, and they can hold on to him. Even if he were bailed out on the misdemeanor he would not be released.

As to the misdemeanor, however, if thi person had taken a plea on the matter, the case would have been over and done with some time ago, if the maximum sentence for the crime is only 6 months. Instead, he chose to fight the case. The arrest to trial process has stretched out longer than the sentence would have, but sometimes, this is quite a deliberate choice on the part of the defendant. It is a way he can stay in the local system to have access to friends and family. Once the case is gone, the parole hold remains and he'd be sent away into the state system until Parole is willing to release him again. If he does get his trial on the misdemeanor and is convicted, he has already done the time. It will not add to his sentence. If he's acquitted, parole can legally violate a parolee (and did) just for the arrest, so they may or may not release him.

Hope this explains the system a bit for you.

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This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice.


Customer: replied 5 years ago.
He has not had an opportunity to enter a plea on this. He was not even arraigned on the misdemeanor charge for eight months and no trial date has been set as of yet--14 months later. Likewise, the private attorney we hired has really done nothing on this, even though she said five months ago she thought she could get the charge against him dismissed. Is there sufficient grounds for a filing of a misfeasance of duty against her?
Expert:  Zoey_ JD replied 5 years ago.
I would hesitate to tell you whether filing for a misfeasace of duty is appropriate at this time. You would be in a far better position to know whether she's done nothing than I would know. I can come up with reasons for the delay -- I did offer some possibilities above just knowing how the system can work -- but mine may or may not apply to the facts as you know them.

Every criminal lawyer has sometimes felt that a case was probably going to be easy to get dismissed only to find out that's not the case. So the fact that she told you that she thought she could get a dismissal isn't as important as why she hasn't gotten one. In other words, what you need to know is if she's on top of the issue, why the case is still pending, why there's been no trial yet, and exactly what she's been doing to either make that dismissal come about or push the case to a speedy trial. If she can't answer that question with something concrete (e.g. "I've filed a motion to dismiss but the judge hasn't ruled on it yet" or "I've been ready for trial on each and every adjourn date but the state keeps asking for continuances, and the judge grants them) that would get her off the hook, then yes, there could be grounds to report her.

I don't know if the parish hired this lawyer. Obviously, if you're looking to take steps like this, you would want your parishoner to have new counself first or wait until the case is resolved when her ineffective assistance could be part of a post-conviction motion or appeal to have parole lift its hold sooner rather than later.

________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice.

Customer: replied 5 years ago.

Just one more word concerning the private attorney, whom was hired by the parolee, myself and two other persons, she's basically done nothing. At first, she said it was because she didn't want to "tip her hand" to the prosecutor on what she was trying to do-and wanted to wait until the day of the arraignment. But, nothing happened that day and then she said the prosecutor told her (on an aside) that he'd probably drop the charges if she got something from the parish jail stating how long he'd been incarcerated. On Aug. 19--after having been engaged for four months--she'd still not gotten the needed information and it was only after we got it ourselves and faxed it to her that she did anything. And, then we found out last week (Aug. 28) that the prosecutor, in consultation with the local D.A., had decided to not drop the charges.

 

I'm also convinced the judge assigned to the case and the local D.A. will do everything in their power to make sure he is returned to the state system to finish out his time. To me, this is a prejudicial bias on the judge's part and he should recuse himself.

 

So, as you can see, this is a difficult case to be sure. But, as a pastor, who meets weekly with this prisoner, I believe there's been a miscarriage of justice and he should be given "time served" for the 14+ months he served instead of being returned to an already overcrowded prison system.

 

Thanks again for your input on this.

Expert:  Zoey_ JD replied 5 years ago.
Sorry for the delay. I had to get my dogs out for their mid-afternoon walk, and then I ate some lunch.

I see the situation. It is compounded by what you and I have not discussed yet in this thread, which is the nature of both crimes having been sex offenses. Right now, sex offenders just about everywhere in this country have no rights any more. On the outside, they cant find housing, jobs, or move an inch without having to register new information which gets published all over the globe. And the trend among legislatures right now is to make matters tougher, not easier, for sex offenders and there's not a judge, a prosecutor, or anyone elected or appointed to such office that wants to presently look soft on this category of crime -- even when some matters are much more serious than others, while others are arguably not sex offenses at all.

I doubt I'm telling you anything you don't know. It doesn't excuse the lawyer. Now that you've elaborated on your dealings with her, I don't see what you've gotten for your money (or for your parishoner).

The judge and prosecutor would have input as to what parole will ultimately decide, but the final decision rests with parole, and other people, such as yourself, can have input with parole too. You need a lawyer willing to fight hard to make something happen here and break the present stalemate. Retaining new counsel may help and certainly can't hurt.

I wish you and your parishoner good luck and a speedy end to all of this bureaucratic frustration.
________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16369
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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