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Ask TexCrimLawyer, J.D. Your Own Question

TexCrimLawyer, J.D.
TexCrimLawyer, J.D., Lawyer
Category: Criminal Law
Satisfied Customers: 3757
Experience:  Experienced in state and federal criminal litigation.
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hello, I have some follow up for you and need your take.

Resolved Question:

hello, I have some follow up for you and need your take.
They want to reduce the charges to 5 charges of 943.70
computer crimes which are misdemeanors not felonies, no
sex offender registry and according to my attorney 'likely'
no jail time. I take great pause as I do not believe I should agree to anything and the 'likely no jail time concerns me. My greatest concern is that my attorney has not yet spoken of prosecutorial misconduct to the ADA, and in his offer admits he has no idea what the new evidence is????? I can go ito more detail of the 'offer'if you like.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  RayAnswers replied 4 years ago.
Can you give me your state here and what you are currently charged with as opposed to what they are offering to let you plead too?
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
I would like to hear more about the offer, but a misdemeanor charge with no registration sounds like a good offer. Please tell me more.
Customer: replied 4 years ago.
Hello again TexCrimLawyer, I received a letter in the mail from my attorney, who sat down with ADA a couple of days ago.
*** ADA said he is not sure what additional evidence is from crime lab
*** ADA said additional charges are from 'more extensive search'
***ADA informed him that they did an examination to determine whether the procedure
that the hard drive erases itself every 2 weeks was done on my computer.( I have no idea what that is referring to or is.)
*** ADA admitted that the testimony from the officers is "not tremendous"
*** ADA admitted that there are some "internal inconsistencies" and problems with my
confession.
*** ADA has offered resolution of a plea to 5 counts of 943.70(2) (a) 4. A person guilty of this willfully, knowingly, and without authorization takes possession of computer data, computer programs or supporting documents.( I have no idea what that means or how it pertains to me.)
***ADA would ask that I be convicted and placed on probation for 3 years so that I could be monitored(why would I need to be monitored??). My attorney assumes that
three years are negotiable.
****ADA would not be asking for jail time
**** this accomplishes ada goals (a conviction?) and he assumes ours??

My attorney has also informed me i the letter that he has not yet taken another look at the original discovery to see whether the new charges are in it. I contend that they are.
I believe that they have not been conducted a 'more extensive' search' because 'new'
files are in the original discovery.
IS this something you have ever offered instead of felony pleas? I don't see a judge
going for this. I knew he had no intentions of taking this to trial. This further cements to me that the refiling is retaliatory, which I am assuming form my attorneys letter, he has not yet brought up. Is this enough detail? I have received no further detail. thanks
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
Clearly, the DA acknowledges he has a weak case.
I never reduced a child porn case to a misdemeanor. If it was a good case, I took it to trial; if it wasn't a good case, I wouldn't take it.
As far as the judge not going for the new deal, he really can't do much about it. He can't force the DA to go ahead on the original charges, and can't tell what the new charges can or can't be. He does, however, have total control over punishment. However, judges generally follow the recommendations of the lawyers, so I would assume that whatever deal you come up with will be followed by the judge.
If I were in your position, I'd take the deal. A misdemeanor is really insignificant, and you may be able to get it expunged later. I think you should take it because you have huge exposure at trial. Once the jury sees the child porn, and hears that it came from your computer, they may not care about the rest. That is a difficult fact that you have to overcome.
Customer: replied 4 years ago.
ok thank you, XXXXX XXXXX mean I have to lie......will this keep me from pursuing civil charges against the officers/agents/agencies???? Now my name is XXXXX XXXXX the internet and in papers more than before....I am on 'child abuse' websites, and I wasn't before...I do not quite understand what is going on and it is a bit overwhelming.....why do you suppose ADA is not willing to let it go.....??? I mean if I say no to the offer.....I know he is not taking it to trial...there is no way...don't forget the Brady material....Can I ask the judge to dismiss it totally.....and explain why I think that these are retaliatory???? Or will a judge not care???
I might lose my job to this misdemeanor....as I am a person of authority who does access computer data at work in order to perform my job. Do you think I might stand to lose my job? That question might be out of place, but just trying to get your opinion of the matter. thanks again.

oh, and what is this 'procedure' in which a hard drive erases itself every two weeks? Are they insinuating that I put a program on there that did that(of course I did not.)????
Or is this something that computers do?
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
I agree that he probably isn't going to take it to trial, but he may not be willing to dismiss altogether. Like I said, rejecting the offer is a gamble. It is difficult for me to give a full opinion without seeing all the evidence, etc. It's just impossible in this kind of format.
Regarding the Brady material, if it exists, and you can somehow demonstrate that, your lawyer should call that to the judge's attention either before trial or during punishment (if you take a deal).

As far as losing your job, I have no idea. That is up to the company you work for. If you have an HR department, you may go talk to them about it.

I think you could still pursue a civil action, but be advised that it is very difficult to prevail, as police and prosecutors enjoy limited immunity. It doesn't take much of a stretch to see that it would be bad public policy to allow police officers and prosecutors to be sued every time they lost a case. Now, if you can show that they knew they didn't have a case, but charged you anyway, you may be able to do something.
TexCrimLawyer, J.D., Lawyer
Category: Criminal Law
Satisfied Customers: 3757
Experience: Experienced in state and federal criminal litigation.
TexCrimLawyer, J.D. and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
ok thanks alot again for the info. I planned on waiting out his bluff, And we will show the brady material.
Customer: replied 4 years ago.
hello, have you seen my last set of Q's for u? It appears as if a different lawyer got them...would like to know your opinion
Expert:  TexCrimLawyer, J.D. replied 4 years ago.

My answers are below yours in all caps. I know it may make it difficult to read, but it seemed like the easiest way to do it.

 

will this keep me from pursuing civil charges against the officers/agents/agencies????

YES, THIS WILL PROBABLY PREVENT YOU FROM PURSUING CIVIL CHARGES. ONCE YOU HAVE PLED, IT MAKES IT DIFFICULT TO LATER SAY THAT YOU WERE TARGETED AND WRONGFULLY PROSECUTED.

 

Now my name is XXXXX XXXXX the Internet and in papers more than before....I am on 'child abuse' websites, and I wasn't before...I do not quite understand what is going on and it is a bit overwhelming.....why do you suppose ADA is not willing to let it go.....???

I HAVE NO IDEA WHY THE DA WON'T LET IT GO. POSSIBLY TOO MUCH PRESS AND HE DOESN'T WANT TO LOOK BAD. ALSO, KEEP IN MIND THAT THE DA HAS AN ETHICAL OBLIGATION TO NOT MAKE PUBLIC STATEMENTS REGARDING YOUR GUILT BEFORE TRIAL. HE CAN MAKES STATEMENTS AFTER TRIAL, BUT DOING SO BEFORE IS AN ETHICAL PROBLEM BECAUSE IT POTENTIALLY TAINTS THE JURY POOL BEFORE THE TRIAL. THIS, HOWEVER, DOESN'T APPLY TO THE POLICE.

 

I mean if I say no to the offer.....I know he is not taking it to trial...there is no way...don't forget the Brady material....Can I ask the judge to dismiss it totally.....and explain why I think that these are retaliatory???? Or will a judge not care???

YOU CAN ASK THE JUDGE TO DISMISS IT TOTALLY BASED ON THE BRADY VIOLATIONS, BUT JUDGES RARELY DO THAT. EVEN IF THE JUDGE DOESN'T DISMISS, HE MAY TAKE IT INTO CONSIDERATION AND MAY NEGATIVELY AFFECT HIS VIEW OF THE PROSECUTION, WHICH IS GOOD FOR YOU. IF HE FEELS THAT YOU ARE GETTING TREATED UNFAILRY, HE CAN MAKE THINGS VERY DIFFICULT ON THE DA.

 


I might lose my job to this misdemeanor....as I am a person of authority who does access computer data at work in order to perform my job. Do you think I might stand to lose my job? That question might be out of place, but just trying to get your opinion of the matter. thanks again

AS FAR AS YOU LOSING YOUR JOB, IT WOULD BE DIFFICULT TO SPECULATE, BUT I WOULD SAY THAT IT IS A POSSIBILITY. IF YOU HAVE AN HUMAN RECOURCES DEPARTMENT, GO SPEAK TO THEM AND THEY SHOULD TELL YOU WHAT THE COMPANY POLICY IS. I DO, HOWEVER, THINK IT IS SOMETING YOU SHOULD BE CONCERNED ABOUT AND SHOULD CHECK OUT BEFORE YOU MAKE ANY KIND OF A DEAL WITH THE DA.

Customer: replied 4 years ago.
sorry, that was not my last set of q's.....I made you answer them again, sorry....what I was asking you (another expert got it....and I didn't realize it, I thought I was talking to you.)

here is my new questions:
hello again. Apparently I did not waive my preliminary hearing...just the time limits. So at status hearing.....the Actual Da appeared and mumbled that they would need an expert witness for the preliminary hearing. Who needs an expert witness at a preliminary hearing???? Well she accomplished what she wanted to...delaying my preliminary hearing from the standard two weeks to four weeks. I can tell my attorney is becoming dis-interested...though he said he would have loved to beat up the witness(s) on the stand. I am so tired of the delays ...and continuances...them waiting for evidence from the crime lab that will never come.....so I decided.....to take the offer....I view it as a slap on the wrist.....it is my duty to stop the bleeding of unnecessary resources and take one in the chops isn't it??? I am worn out. Is it bad for me to take this offer????? I just think that the charges are so watered down, that it is not sensible to continue. Winning now is only egotistical. What do you think my concerns would be of having 5 class A misdemeanors on my record(no jail time)? Is it common to reduce these type of charges to a misdemeanor in order to get a conviction???? thanks again for your time. You are the only one listening to me now. Keep in mind.....I know they have no evidence to support the charges(besides the fact they are allegedly on my computer in a file sharing folder-but nothing to support that I wanted them there or viewed them.)

#2.)Is it common to reduce this kind of felony to a misdemeanor?? I do want to go through with the preliminary hearing........My attorney did say that I would get some sympathy from the court because these charges have been dismissed once(on the eve of trial) and it has been now more than two years....but what if I don't get a reasonable hearing from the judge??? I have already experienced him denying my motions..because he 'thought I was lying", even though nobody else..including ADA thought so...we are suppose to request a new judge....but this one is already considered the most fair of them all......not very encouraging.
Shouldn't the new charges be new evidence??? These charges that they are trying to say are 'new', were already in the original discovery. thanks again for your time
I am not concerned about jobs...because most employers only care about felonies....how can I be refused housing because of misdemeanors? Can I be evicted for accumulating misdemeanors???

q3.)ok....it just seemed to me that everyone was trying to get me to take the deal. I know I am innocent. I waited out the first time. This time I have alot more ammo.....My attorney is sending me the details.......was it a good move to bluff the ada on this......I can read people really well, and the DA is full of ego and malcontent. She hasn't intimidated me yet. I will get back to you with the details.

the last two are reply's from me to the other expert who tells me that the reduce felonies like this to misdemeanors all the time....My attorney said he has gotten these kind of charges reduced to felonies, but never without jail-time-something we did not even have to negotiate.

of course I will pay you again for your time. I have the other expert to pay as well (my fault for not paying attention.) Is 50.00 ok?




 

Expert:  TexCrimLawyer, J.D. replied 4 years ago.
Is it OK if I get to this tomorrow?
Customer: replied 4 years ago.
sure......thanks for taking the time.
Customer: replied 4 years ago.
it's saying this q timed out....Ihope I don't end up with another expert again......
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
It is not common to lower these kinds of charges, absent extraordinary circumstances. Like I've said before, when I was a federal prosecutor, I never reduced child porn charges. I either had the evidence I didn't. If I did and they didn't take a plea (which I did not pressure defendants to do) then we went to trial. If the evidence was weak, I never charged the case. It sounds like the DA took a weak case, hoped it would plea before trial, and when it didn't, she was forced to cut a deal. Maybe this is common in the state system, but it is not in the federal system.

As far as what evidence the judge can consider, he can consider all the evidence before him, which may include the forensics from the computer (which, in turn, includes the child porn). Your attorney can certainly argue that the child porn can't be linked to you, otherwise the DA would have proceeded with trial.

If you are applying for a new job, they may do a background check, which will turn up the new convictions, and how each individual employer views it is up to that employer. You should look into the expungement and record sealing laws of your state. With an expungement, it is completely wiped off your record. Some states allow expungement after a few years, even if you were convicted while others do not allow expungements if you were convicted. It just depends on the state. Some states also allow you to seal your record, which doesn't wipe it off like an expungement, but it makes it not accessible by the public (law enforcement and other licensing agencies can still have access). Ask your attorney about these options. He should know the specifics of your state.

I have never heard of anyone being evicted or denied housing because of a misdemeanor, no matter how many.

As far as making the decision to plead, it is always a tough call. I think you have avoided the possibility of a long prison sentence, a felony on your record, and having to register as a sex offender. The registration requirement will ruin your life, so that is a major win.

I hope I've answered your questions. As far as my payment, whatever you think is fair is fine with me. If you have any additional questions, do not hesitate to ask.

Expert:  TexCrimLawyer, J.D. replied 4 years ago.
Did you get my response?
Customer: replied 4 years ago.
my state is Wisconsin, and they only allow expungement for minors....I have never seen an employer ask about misdemeanors..only felonies....and I have never been with a company that didn't hire people for misdmeanors.
I am finding it hard to believe that the ada recharged this case only to reduce it to misdemeanors before any actual court proceedings took place (well after the initial appearance).....I am 100% sure that the dci agents are trying to stop my civil suit....which I am not neceessarily married to ( as I explained earlier.), I don't think the ada initialized the
re-opening of the case...but is being pressured by the DCI agents(does that sound irrational?) My life will not be ruined by these misdemeanors.....that is where I am standing...and without boring you with the details of the evidence, and what they have tried to 'portray' as discovery, I know I will win at trial...plus I do have an Ace up my sleeve, that I have not let ANYONE know about yet.........but is it worth it???? I do not like it when people waste other peoples time just to prove they are right........since the 'rest of my life' is not in jeopardy by taking this deal.
Everyone, including my attorney, is telling me to take the deal, I guess I just want to hear from another attorney that this is a good deal. As I stated earlier, my attorney appears to be losing interest, and I kind of feel like I did with my original public defender(railroaded).
I can save so many animals lives or buy toys and school supplies for underprivledged kids with the money I am saving for trial.......which is what I have not been able to do these past couple of years.....because of these legal matters. I don't know what I am
going to have to do in this sex-addiction counseling.....nobody truly believes me that I am appalled by pornography in general, or even the idea of having sex......but they will find out soon enough I guess........that I am truthful.....
Anyway, I will beable to pay you on friday when I get paid.....I can swing probably 50.00 bonus......I wish I could pay more, but until this thing is over the rest of my savings is in my attorneys trust fund-for the trial if needed.
Expert:  TexCrimLawyer, J.D. replied 4 years ago.

I think it is a good idea to take the deal. In my experience, juries are unpredictable. I've lost cases I should have won, and won cases I should have lost. It is impossible to know what 12 random people will think. They all bring in their own bias and pre-conceived notions.

 

It is reasonable that the investigators pressured the ADA into pursuing the case. Part of being a good prosecutor, however, is being able to stand up to the police and tell them when the case is not worth taking. They may get mad and storm out of your office, but that's part of the job of the prosecutor. I don't think that is an irrational thought at all.

 

I hope things work out for you. Just pay when you get the chance. I trust that you are good for it. Good luck.

Customer: replied 4 years ago.
ok, thanks again, I will accept and pay on Friday (tomorrow).....
Customer: replied 4 years ago.
please let me know if you got my payment
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
I have not received it. It shows that you have not accepted on your last question.
Customer: replied 4 years ago.
Ok, I have to figure out.....it came out of my account.....I will see if there is a number I can call
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
No problem. You have been honest in your dealings with me so far, so I'm not worried.
Customer: replied 4 years ago.
hello, they told me they would deposit it in the right account...have you gotten it yet?.
the other expert got his.....you were supposed to get 16 +50 tip. I am sorry for the
delay because I have another q for you. But I want to get this straightened out first.
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
I have not. As you can see from looking back through this thread, the last accept was on 8/1. Check with the billing people, and they should be able to see that I was not paid.
Customer: replied 4 years ago.
ok...I will call them again....If no action by tomorrow then I will just pay again and request a refund from the first charge.....sorry for the issues.
Customer: replied 4 years ago.
hello, I am finally getting a credit.....from just answer...They are refunding a 34.00 credit I gave to an expert....this was not you was it? I planned on paying you 16.00 plus a 34.00 bonus....apparently it went to another expert(although the other expert I was dealing with
claims he/she did not get it.) none the less....they told me I would get the credit in 7 to 14 days.....I am trying to come up with a way to pay you sooner. I am sorry for the inconvenience.
Expert:  TexCrimLawyer, J.D. replied 4 years ago.
No problem. How did things work out?
TexCrimLawyer, J.D., Lawyer
Category: Criminal Law
Satisfied Customers: 3757
Experience: Experienced in state and federal criminal litigation.
TexCrimLawyer, J.D. and 4 other Criminal Law Specialists are ready to help you

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