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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30382
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Why am I going to a pre-trial on 3 Apr 2012 to retain

Customer Question

Why am I going to a pre-trial on 3 Apr 2012 to retain my money that was seized in a raid of my home? I went to the criminal trial on 13 Mar 2012 and all felony charges were dismissed by the state and now Paul XXXXX of Eunice who is over seizure is still pursuing charges that were dismissed. I've filed an application for seizure since November 2010 within the 30 days of arrest (15 Oct 2010). On the 28 Sep 2011, I received a summons of all charges and those charges were argued on Mar 13 and now he's using one of the charges argued to alter or alleviate the release of my money and all possessions at the time of arrest. I am getting copies of recovery from my criminal lawyer tomorrow and I really don't feel as though my civil lawyer is representing me in a fair manner because everytime I present her with facts, she replies negatively. He's asking for half of my money and I've refused on every account. All receipts and resources have been supplied to him and the state. The state has accepted the proof and dismissed the criminal charge against having the money but somehow he feels he can still pursue the matter.

Submitted: 5 years ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 5 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

Civil forfeiture and criminal charges are two different issues. To prosecute you criminally, the government has to be able to establish beyond a reasonable doubt that you committed a crime - which means establishing each and every element. Many criminal cases are dismissed because the government doesn't believe they can meet that very, very high standard.

The standard of proof for forfeiture is lower - they only need to show by a preponderance of the evidence that the money is the profits or proceeds of a crime, or related to criminal activity. A preponderance of the evidence means - "more likely than not." If you think of "beyond a reasonable doubt" as a 99.99% chance that the crime was committed, a preponderance only requires 50.01%. Because it's a much lower standard, they can proceed with a civil forfeiture action, even if they are not pursuing criminal charges. That means that they can take you to a trial, require you to show where the money came from, and let the judge decide. There is no law that requires them to dismiss the related civil action merely because they cannot prove the criminal action.

I understand that you may be disappointed by this Answer, as it is not entirely favorable to your situation. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Good luck.
Lucy, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
I've supplied all the necessary documents for proof of possession of the money, the state accepted and the charge was dismissed. What's puzzling me more about the pre-trial is why can't I be in on the discussions. My lawyer told me that the judge doesn't want me in while the matter is being argued.
Expert:  Lucy, Esq. replied 5 years ago.
Is the judge trying to mediate some sort of settlement? Has he specifically told you to stay out of the hearings?
Customer: replied 5 years ago.
He hasn't told me specifically but it was conveyed to me by my attorney and I don't know if what to believe at this point in time. Do I have the right to attend or the right to submit an application or form to attend?
Expert:  Lucy, Esq. replied 5 years ago.
If they're holding hearings in open court, you have a right to be there, yes, because you're a party. You can waive that right and choose not to attend, but it's very unusual for the judge to simply decide to keep you out. You may want to ask your lawyer to expand on why he's saying the judge doesn't want you there. Unless you're talking about a situation where you've been at hearings in the past and you've been disruptive, talking over the judge, interrupting, and things like that, I can't think why he would say that you couldn't go.