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P. Simmons
P. Simmons, Lawyer
Category: Criminal Law
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Experience:  16 yrs. of experience including criminal law.
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I am not sure if I should explain what happened 1st so let

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I am not sure if I should explain what happened 1st so let me brief and get to the point. I do believe I am somewhat guilty because after the cop attacked me, I did resist. My brother was driving while having a suspended license. I was on my motorcycle behind him. The cop had a device which allowed him to get information that the registered owner had a suspended license. He pulled us(?) over or at least that's what I thought. I asked the cop when he got out of his car why he pulled us over. I was told to park my bike or I would be obstructing justice. I obeyed. After he put my brother in cuffs, I started to record the incident with my cell. He spoke with my brother and my brother said I had an anger management problem due to business and marriage issues. His daughter told im I was crazy and could be a butthead. I was parked over 40' away in front of my brother's car. Once again I asked why he pulled us over. He asked who I was, I retorted David, his brother. He asked if I had id I responded yes and asked why he wanted to see it. He said I did not have to show it to hm. At that point he stopped walking towards me and called for backup. He walked towards me and I stepped towards him. He then lunged at me and grabbed me and then I resisted. I have been charged with 3rd assault against a police officer. The Deputy PA has offered a lesser charge of a gross misdemeanour. I read the docs and it said to make a statement of my guilt. I gave an alford plea along with the statement which my attorney gave to the DPA. According to my attorney, the DPA became livid and said she would not accept an alford plea and my statement could NOT be anything more than I am guilty and threaten to remove the plea bargain if I did not comply. I asked for a continuance and was given 14 days. My attorney stated if I didn't accept the plea, he would withdraw from the case. When I stand before and the judge asks if I was under duress, I want to say yes and explain. When she asks if I have anything to say before she pronounces sentence, I want to say what happened which will dispute several issues including the fact he did not say I was free to go at anytime but he says he did. My question(s) is what is the judge likely to do at this time. I do not have the funds to pay my attorney the astronomical fees he is demanding and can not afford to go to jail, I have 2 children, 1 and 16. My question is what is likely to happen if I persue this avenue?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  P. Simmons replied 3 years ago.
Thanks for the chance to assist on this matter. I am an attorney with over 12 years experience in criminal law.

You can do an "alford plea" in WA...that is certainly your right. But the plea MUST satisfy the elements of the charge(s).


IF you can not do that, then the state is not obligated to offer the plea bargain.

That said, you have to "tell the truth"...the law does not permit you to lie to get the benefit of a plea bargain.

I have seen quite a few cases where the accused (defendant) is unable/unwilling to plea. In such cases, the judge will stop he proceeding and enter a plea of "not guilty" on the part of the accused. Then the judge will set the case for trial.

SO if you can not plea, the court will enter a plea of not guilty for you...and will set trial dates.

Now, if you can not afford an attorney, the court will appoint an attorney to represent you. But understand that the plea bargain would disappear...so you would be facing a criminal trial.

The state would have the burden to prove, beyond a reasonable doubt, your guilt. IF they can not, you will be found not guilty.

If they can, you will be convicted.

The facts you describe seem to form a "he said/he said"...so the jury would need to believe the cops version over yours...in a case like this, its key to have a good attorney to help "impeach" the cop...to try and make the cop less credible. If you can get the jury to believe the cop is lying, you may be able to beat the charge...if not, not.


Let me know if you have more questions
Customer: replied 3 years ago.
Thank you for your answer but I need clarity. I understand the other elements as you discuss but that was not my question. My question is when the judge asks was I under duress and I respond yes and explain wh yI think I am under duress, what is likely to happen. The second part of the question is when the judge asks if I have any comments before she passes sentence and I respond yes and explain what happen - what is she likely to do?

Thank you again and I look forward to your answer.
Expert:  P. Simmons replied 3 years ago.
Sure

"Duress" is a legal defense. If you were under duress then it may be your not guilty of the crime.

But its important to understand the difference between the interaction between you and the judge during the "plea" phase of the trial as opposed to the "guilt or innocence" phase of the trial.

During a plea, the judge has duty to make sure the plea is voluntary and that there is a factual basis for the plea. SO the judge will ask you questions to make sure no one has forced you to take the plea AND that you really did commit the crime.

If there is evidence you did not commit the crime, the court will not accept the plea.

So if you tell the judge you were under duress...the plea will stop. Period.

That does not mean you will be found not guilty...it just means that you will not be able to plea guilty.

Big difference

So if you tell the judge why you think you were under duress and that meets the definition of duress. Duress is an "affirmative defense"...to prove duress you must show you participated in the crime under compulsion by another who by threat or use of force created an apprehension in his mind that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and (b) such apprehension was reasonable upon his part; and (c) he would not have participated in the crime except for the duress involved.

(WA v Healy, 2010)

SO if your telling the judge you were in fear for your safety or that of your brother...that can be duress.

IF the judge finds a possible duress defense, he will stop the plea and send you to a contested trial to give you a chance to prove your defense.


For your second question...

when the judge asks if I have any comments before she passes sentence and I respond yes and explain what happen - what is she likely to do?

The judge will listen to any information you have...any evidence that tends to mitigate or reduce the severity of the crime. This is something you would want to work with your lawyer on...since typically you would want to have this practiced...you want to run by your lawyer the information you want to present...(including witnesses who can testify for you, documents you can present).

As for your statement...typically an apology is the best.


Let me know if you have more questions




P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 26883
Experience: 16 yrs. of experience including criminal law.
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P. Simmons
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16 yrs. of experience including criminal law.