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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92502
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Their is police evidence showing compliance/ and permission

Resolved Question:

Their is police evidence showing compliance/ and permission by a police department allowing a cop impersonator / civillian to perform the duties of a peace officer for sevaeral shifts. the 3rd degree felony charge is scheduled for deferred adjudication later this month. However agreeable this may seem, A civil suit seems warranted. Obviously the circumstances were extenuating in order for the case to be schedued for deferred adjudication, the defendant was 21, the cops involved were a seargent and nine year veteran as well as several other department officers. How can I get this case dismissed? Only advice has been from criminal lawyers. Wondering what a civil lawyer thinks? The case was extremely high profile due to extensive publicity, Defendant has suffered as a result.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 4 years ago.
The issue is the defendant still acted and committed the acts, so they cannot sue the department for acts they willingly committed. Deferred adjudication does not mean that nothing happened, it just means that under the circumstances and based on the youthful status the court feels it is in the best interest of justice. As far as getting it dismissed, if they are giving a deferred adjudication, at the end of the probationary period the case will be dismissed. But in order to really have a civil case against the department and the other cops, you have to prove some coercion or force used to make the defendant act.


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Customer: replied 4 years ago.
Dismissed, not true, the defendent avoids conviction or punishment, but the record stands until probation is met and 5 yrs pass at which point the defendant can request the record to be sealed and a judge grants the requeest or denies it. arrest and conviction records are still maintained even if ordered to be sealed. The prosecution can influence the request at that time. The civil case I am asking about would be for punitive damages, consent to patrol was given by the sergeant after the sergent attemted to verify id provided by the defendant, the result that came back was no such name, the sergent and officers still permitted the crime to be committed. The solicited help from the defendant was needed and favored by the department.
Expert:  Law Educator, Esq. replied 4 years ago.
You are partially correct, the record may still stand but it does not appear on the record as a conviction and it is eventually dismissed. Dismissed does not mean taken off of your record, it means that there is no further prosecution and the matter is completed without a finding of guilt. Even when there is an expungement the records remain visible to the courts and law enforcement and even to some agencies that may require that information.

You can spin this any way you like about the Sgt. allowing it. Just because the Sgt. tells someone they can shoot someone without any justification does not make that person who did the shooting any less liable for murder. Maybe the Sgt. should be charged as an accessory, but that is the choice and ultimate discretion of the DA.

Do NOT GET ME WRONG HERE. I do think that the situation you describe is a very good mitigating circumstance to put forth in your defense to the criminal charges and I believe any halfway decent attorney could get a not guilty verdict with the defense. However, as far as a civil action against the department, this would be much more difficult, not impossible. The reason it would be difficult for a civil judgment is because you were a willing participant, even though they gave you permission, you went and did it on your own and that reduces their civil liability in the matter significantly and to the point where it is highly likely that you could not get much of a monetary judgment.


Edited by PaulMJD on 6/2/2010 at 12:39 PM EST
Customer: replied 4 years ago.

You stated any decent atty could get a not guilty verdict. Since the docket is scheduled for a adjudication, that indicates the defenent gave up his right for a trial, I am the defendants relative. I asked How can I get this case dismissed? What I meant was How can I get this charge dropped? The defendant, a highly decorated now discharged for non participation, marine reservist, wanted a job as a paramedic, or in law enforcement and applied to a then local department.

The city where the crime was committed has official hospital, airline and ambulance records for the separate good samaritan acts by the defendant that saved 3 lives.

This case happened just a few short weeks after the same department allowed a machine gun wielding cop impersonator to ride along. The ATF handled that case, no publicity, but I happened to meet with the attorney handling the case, before the defendant was arrested.

Our family has spent nearly 25,000 without a private attorney for. bail, flights to and from the state for arrainments, hearings etc.

The spin I want is the one the DA needs to get his head around, merits within 2years ( 4 lives saved)prior to the crime are sufficient evidence of defendants nature, probation is a waste of the courts time, and so would an extenuating trial should the department be involved. What can the defendant say to the public defender who is happy the retired judge handling the adjudication is also another parent on his sons softball team and thinks the probation term will be favorable.

It is all too apparent the department and the courts are getting the victory here. Justice may be served, but apparently the law is getting their meal ticket comped.

 

 

Expert:  Law Educator, Esq. replied 4 years ago.
If he has entered into a plea deal for deferred adjudication already, there is NOTHING you can do to get the case dismissed if he has waived his right to trial for the deferred adjudication. The only thing that HE can do is withdraw the plea and then negotiate for the dismissal or go to trial. I understand his background and what you are claiming happened, but as we used to say in the police department, "one oh crap wipes out 1000 attaboys." The prior acts have no bearing on the actual crime being charged, they may factor into sentencing, but not on guilt or innocence. Legally, if he has waived his right to trial for the deferred adjudication there is nothing but withdrawal of the agreement and going to trial and seek his vindication through a not guilty verdict that he can do.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92502
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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