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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91776
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Hello, My name isXXXXX am in need of legal guidance. I

Resolved Question:

Hello,

My name isXXXXX am in need of legal guidance.

I believe my husband was wrongly charged for a crime as a result of a criminal complaint filed in Kalamazoo, Michigan, May 12, 2012. I also have done a fair amount of research about the claimant/plaintiff in the matter and have discovered the identity of the individual making the claim seems obviously to be a faked/stolen identity. My husband is a very sick man with a serious heart condition. He has been on total disability since 12/2000. As a result of the complaint filed, he was recently arrested, and today he entered a plea of not-guilty to the offense. I think I have enough evidence to file a counter complaint of "Filing a False Police Report", but I am distrustful of local law enforcement and I have little confidence in their ability to take this matter seriously.

When my husband was arrested (a road officer just "happened" to run his plate) it was a complete shock. Then, I had to plea with the Sheriff Department to get him bonded out due to his illness; I feared he was in a critical situation due to his health. I had no ability to get to the Jail and the Jail nurse actually asked if I could bring his 14+ medications to the jail (it was time for his evening medications). Not only was he treated poorly, he was not ever afforded a phone call for over 4 hours. Had it not been for my persistence on the phone and with the assistance of a bail bondsman, I fear what would have happened if he had to stay the night in jail.

So, as far as my questions go, I need to know if the jail staff treated my husband fairly as a person with a disability?

I need to know if before the pre-trial date of 4/9/13 I have any recourse to speak with the prosecutor to amend/dismiss this charge and request further investigation?

Because the Plaintiff has identities which span the entire globe, which would be the appropriate agency be to investigate my suspicions?

Is there any type of pro-bono legal counsel available for persons with disabilities? I also am disabled (SS application is in appeal right now). We have very little income. So, the $250.00 cash bond was an extreme hardship.

We also had to sit in the court room for 2 hours today, which was clearly uncomfortable for my husband; he has suffered strokes which has caused short term memory problems. He also takes diuretics, which for obvious reasons made this time extremely unbearable for him. I realize now I could have asked for special assistance for him. What type of special assistance should we expect at the Pre-Trial?

I have many more questions, but these are the basic issues.

Thank you greatly for any advice/assistance you can provide me.

Sincerely,

Denise M.
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Legally, a person who has a disability and is arrested is treated no differently than someone without a disability. The Constitution guarantees a right to a phone call in a reasonable time after arrest and after booking. Thus, as long as they gave him the opportunity to make a call in a reasonable time after they processed him, they did not violate his constitutional rights.

The prosecutor has no obligation to speak to you, unless you are your husband's licensed attorney. Anything you tell the prosecutor could come back to be used against your husband and you could even be compelled to testify because of you approaching the prosecutor. The prosecutor will speak with your husband's attorney regarding this matter and your husband's attorney's comments to the prosecutor cannot be used against your husband.

As your husband cannot afford counsel, he would be entitled by the Constitution to a public defender and you need to go to the public defender's office in the court house to seek to arrange representation for him. His attorney will take the information you have on this alleged victim and will present it to the prosecutor.

Furthermore, for your husband to be convicted on anything, the alleged victim has to appear in court and testify and when he does your husband's attorney would use that information on the multiple identities to impeach his credibility and this raises reasonable doubt needed to get your husband found not guilty if the prosecutor even takes this to trial after they see your evidence.

You can seek reasonable accommodations from the court, such as allowing your husband to wait outside of court where he could be more comfortable and allowing him to use the bathroom as frequently as required.


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Customer: replied 1 year ago.

Thank you for your quick response.


My husband was not offered an opportunity to make a phone call at all. What is a reasonable time period?


Would it be advisable to file a counter complaint before the outcome of my husband's case or after?


We heard in court that the only time a court appointed attorney would be offered would be if the judge thought there was the possibility he could face jail time.


This is extremely stressful for him and is causing him undue stress which is complicating his medical condition. He has only 17% infraction rate as most of his heart muscle is dead. It seems we should be able to speak with someone or counsel before the Pre-Trial date.

Expert:  Law Educator, Esq. replied 1 year ago.
Generally, the court has held that the time to make a phone call would be upon booking or shortly thereafter. Thus, if he was taken to jail and not yet booked by the offices in the jail, they could make him wait to make a phone call until after booking.

If you have evidence of identity theft and fraud, then filing the claim now would be helpful to his case.

The only time an attorney MUST be offered is if there is a "possibility" of jail time associated with the charges against him, not whether or not the judge thinks there will be jail time. You need to go to the public defender's office and arrange for representation.

The only one who could speak for him at this point is going to be his attorney, which is why you need to arrange to get him representation.
Customer: replied 1 year ago.

Thank you very much for your information; it has cleared up many grey areas for me. I worked at this particular courthouse several years ago, but in Probation....a lot of their procedures have changed as have the judges and court staff. I found the staff's demeanor callous and unfeeling at best; it was all very rote behavior with no consideration for the defendants' being arraigned - now I know why I don't work there anymore! My husband also was treated very rudely at the jail.


 


He was held in holding, in an overcrowded holding cell (while there were several available and empty); they held him for four hours - he was only booked when the bail bondsman showed up with the bail money; then he was printed/pictured and given his belongings back. I understand according to what you're saying it seems like they were playing by the rules. There were pay phones in the holding areas but they were out of order due to a change over in the system with the opening of a new facility. No one conveyed this to my husband or any of the other inmates, he only learned of it from the woman we hired to post bond. Another excuse for the wait was that the jail was on "lock down", again with no further explanation. I am also checking into false arrest and civil rights advice.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.

Unfortunately, there is no law saying the staff in court or jail have to be courteous to defendants or arrested subjects. In fact, we get this complaint all of the time, but the only thing you can do about that is complain to the director of the Jail or to the court administrator about the court personnel.

I am afraid that the jail was playing by the rules, even though they know how to push those rules to the limits, they were within those rules. The courts will not require an explanation of the lock down as that is a determination wholly on the discretion of the director of the jail facility. The officers who arrested him have what is known as qualified immunity, meaning they cannot be sued for the arrest based on their investigation of the complaint from this alleged victim.

If the charges are dismissed and you have evidence the alleged vicXXXXX XXXXXed and has committed identity theft, then it is the alleged victim you have to file suit against for malicious prosecution and abuse of process to seek your damages, not the officer as the qualified immunity protects them from suit in the performance of their duties.
Customer: replied 1 year ago.

Thank you Paul for your timely and informative clarification of the process. I do know the officers and officials are protected under governmental immunity. I am confident this will be dismissed; then, we will definitely file a complaint against this alleged victim.


 


May I call on you again if I have more questions?


 


Sincerely,


 


Denise M.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you. I am glad I was able to address your concerns and provide you the information you were seeking.

You are certainly welcome to call on me again and ask for me specifically if you would like to do so.

Please do not forget to leave excellent service feedback as that is the only way we get any credit for spending time working with you.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91776
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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