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I'm having a problem with my red attorney and it's…

I'm having a problem with...
I'm having a problem with my hired attorney and it's causing me a crippling amount of stress. When I had a consultation with him before hiring (one of 5 consultations I had with various lawyers) I hired him primarily for the reason that his strategy for my domestic battery case, which I'm accusedof, was to create a very strong affidavit of non-prosecution signed by the alleged victim with her cooperation, which would "create overwhelming inconsistencies with the police report." The alleged victim has been extremely cooperative and willing to basically sign whatever she needs to keep me out of jail and prevent this case from getting filed at all. The affidavit that he drafted up yesterday has created virtually no inconsistencies with the police report. It was basically a bland statement that the alleged victim did not want to prosecute with one additional statement about me being "good-natured" and about her being an "alcoholic." There was nothing that mentioned her being intoxicated at the time. Now, my wife, the alleged victim saw just how deathly stressed I was over this last night, barely being able to sleep and not being able to get out of bed this morning until now, almost 1 PM, and she woke me with a new affidavit that she hand wrote herself, which included statements that she suffers from "bipolar disorder," which is true and that she is often and easily "confused and easily scared and paranoid." She goes on to say that she "believes at times I cannot easily tell between reality and confused thoughts" and that she is now "seeking out the help through medication and rehabilitation." She closes with saying that "through counseling and healing all of this will guide me into goodness and sobriety."1) Please tell me if you believe that my lawyer has been negligent up to this point. I have a suspicion, because of the way the retainer of payment was spelled out, that he is trying to make this go to trial so that he can procure another $2,500 from me in addition to the $4000 I've already paid him.2) Also, I would like to know if you believe this new affidavit that my wife drafted up will have a significantly greater impact.Thank you very much in advance.
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Answered in 18 minutes by:
3/4/2016
Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 600
Experience: Attorney at Law Offices of Khaled Issa
Verified

Good afternoon:

Thank you for requesting me.

Now, let me begin with your second question first, regarding the impact of the letter. First and foremost, it will be impossible for me to provide any information regarding that as I am not privy to the discovery (the police reports, statements, etc) that your retained attorney is (or will be) allowed to see and read. So, regarding inconsistencies, etc., I would simply be in a possession to speculate, which will not do you any good.

As to your first question, affidavits are a somewhat common occurrence in criminal proceedings. You may have a victim or witness state one thing to the police then, for whatever reason, supply an affidavit to the defendant (or his or her attorney) which is a complete 180 from what was initially stated to the police or in any complaint.

Because this is common, prosecutors deal with it on a daily basis almost. Over the years, prosecutors know that sometimes the affidavit was coerced, or the victim simply changed their mind about bringing charges against a person (a common occurrence when the victim and defendant are in a relationship and domestic battery charges are filed).

So, because of this, prosecutors give very little weight to the affidavit and will generally disregard the affidavit in the determination of whether or not to continue prosecuting. So, when there is a disagreement between the prosecutors and defendant about certain evidence and the accuracy and veracity of that evidence (i.e., an affidavit), then the matter must be submitted to a tier of fact (either a judge or jury) to determine which "version" of the story occurred (the version contained in the police reports initially reported or the version contained in the affidavit which occurred sometime after the incident giving rise to the charge). This determination of credibility comes only at a trial where the judge (or jury) actually gets the opportunity to observe the witness' demeanor and behavior, her testimony and cross-examination of the witness by opposing counsel.

So, if the affidavit route is the route one in your situation would want to proceed with, it should be expected that the affidavit will only play a role at trial and not a role of persuading the prosecutors to dismiss charges, based on what I have provided. above.

Any follow up questions or requests to clarify based on the general information provided?

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Customer reply replied 2 years ago
Ok. That is consistent with all the research I did on affidavits, which leads me to believe that my lawyer was using this skewed logic to convince me to hire him. My lawyer filed the affidavit yesterday and they already attempted to reach her. By the way of bad police work, the number I supplied the cops at the time of arrest for my own phone was given to the state's office as the alleged victim's phone. So, I answered the phone, but did not reveal my name yesterday shortly after the affidavit was filed and they asked for her. If they can't reach her by phone, how will this affect the chances of the case being filed? How unlikely will it be that they file? By the way, there were no injuries and I did not admit to anything at the time of the arrest.

Just to be clear, in your example, charges have not been filed yet. Would that be correct?

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Customer reply replied 2 years ago
it's only been about 1.5 weeks since the arrest occurred.

Ok. Generally, when there is a domestic battery or ordinary battery case, the victim must appear in Court to testify on the date of trial as that is the only way the State can introduce evidence about the incident in compliance with the Rules of Evidence.

Some State's Attorney's Office (the larger ones) will dismiss the case on the date of trial if the victim fails to appear. Other offices (the smaller ones) will ask the Court to hold the victim in contempt and force the victim in to Court to testify about the incident. The contempt route is an extreme route that many offices will not pursue as it takes too much of their time and resources, which can be spent on more pressing matters.

The reason this is being brought up is because if a victim is not cooperating with the State in the early phases, the State may foresee them not appearing in Court on the day of a trial. So, to cut out the middleman and move on to more pressing matters, the State may not file charges at all. Or, they can still file charges and hope that the victim, at some point, begins to cooperate. Every office is different and every case is different. This is why it would be difficult to throw out a "number" regarding the chances that no charges will be filed at all. However, with no injuries and no direct evidence of guilt (i.e., police admission during questioning), an office may be more inclined to not file charges if they have a feeling that the victim is not/will not cooperate in the prosecution of the offense.

Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 600
Experience: Attorney at Law Offices of Khaled Issa
Verified
Legal-Kal and 87 other Criminal Law Specialists are ready to help you
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Customer reply replied 2 years ago
Thank you for the extremely thorough and clear response! 5 stars!

You are very welcome and thank you for the rating! I wish you the best of luck moving forward and should you have any follow-up questions, feel free to request me!

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