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RobertJDFL, Attorney
Category: Legal
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Experience:  Experienced in multiple areas of the law.
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My NC resident, black, poor, mentally disabled, 17 year old

Customer Question

My NC resident, black, poor, mentally disabled, 17 year old nephew was arrested and charged for social media communications (cyber-stalking, false report re a school bomb threat) in a school chat room, for which the "school" indicated that they have "no" evidence or proof that "he" did these crimes. My nephew is intellectually "simple," and has no prior criminal record.
According to a 2014 law symposium, this is a often common place occurrence with the most vulnerable of our population, poor, minority, disabled, etc. I now understand this more clearly.
A) He was the subject of "bullying" at a high crime/violent act school, where months later another 17 year old committed suicide seeing no way of escaping it. He was set up by gang members, who in the school chat room admitted that they had stolen the phone numbers & other info on his phone, created fake id's and accounts. The gang member also threatened with death and rape, those other students who could identify them.
We have "substantial" proof: A) of my nephew's historical mental disability since birth, B) that due to his "low" IQ, that he does not have the ability or comprehension to write at the level that the gang members did, C) the time period of the "felony charged incidents" occurred when his phone had been confiscated by his mother, and he had NO internet, phone, or social media communication access, D) the testimony of those who used his "alias" clearly indicate that they were the culprit, and E) testimony by the school during his suspension meeting that they had NO PROOF that he wrote the communications.
How is it possible that these charges were even allowed? How do we get these charges dropped?
Submitted: 2 months ago.
Category: Legal
Expert:  RobertJDFL replied 2 months ago.

Thank you for using Just Answer. I look forward to assisting you.

I'm sorry to hear about what happened. While I of course cannot speak for the people making the decision to arrest and charge your nephew, in order for police to make an arrest, they only need "probable cause." This is a very, very low burden of proof, which basically means they have a "reasonable belief" that a crime was committed, to make an arrest. Many times, investigations will continue and more information will come to light after a person is arrested.

Once a person is arrested, the police report and their findings is forwarded to the prosecutors office for review. It is the prosecutor's office who makes the decision whether to formally charge someone. A prosecutor must be able to prove their case "beyond a reasonable doubt", which is much higher burden, so prosecutors tend to look at cases with a much more critical eye. Still, even they may not have all of the details and information when deciding whether to charge an individual and what to charge them with (think of th cases you hear about where a person is arrested by police and then the case is dropped). For example, they may not know anything about your nephew's lower IQ, or that he didn't have access to the internet and social media because his mother had taken his phone away. They're going by the reports that the police gave them.

Your nephew's best chance is to have an attorney gather up all of the evidence/facts you've laid out briefly here and get it in front of a prosecutor and put pressure on them to drop the case. Legal aid only handles civil cases, not criminal matters, which is why they were unable to help you. If your nephew cannot afford private counsel he is entitled to a public defender. Public defenders are some of the most skilled lawyers given the heavy caseloads they have, and because they work with prosecutors all day, often have very good relationships with them. The downside to a public defender is also their heavy caseloads. They often are in court all day long, do not have the time to "handhold" clients, and some of them come off as wanting to simply plea out cases or wrap up cases quickly without necessarily doing what may be in the client's best interest.

If a defense attorney isn't able to work something out with the prosecutor to get the case dropped, then his lawyer could file a pre-trial motion to dismiss, which would end the case without it having to go to trial.

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