What is an indictment?
Interviewer: What is an indictment?
California Does Not Commonly Indict People by the Grand Jury System
William Kroger: In Los Angeles county or the state of California, they don't really use indictment. Indictment is where they gather evidence against you. The prosecution will gather evidence against you and then they'll take that evidence to a grand jury and they'll present it to the grand Jury. The grand jury is comprised of people that work full time for a year as grand jurors. So they present the evidence to a grand jury and if the grand jury feels there's enough evidence against you to take you to trial, then they will indict you.
It Is More Common to Have a Complaint Filed against You
In the state court, what they do is file a complaint against you. A complaint is where the District Attorney believes there's enough probable cause or there's enough of a reason to arrest you and to charge you with a crime. So, they'll file a complaint against you. You will have the preliminary hearing, and if you lose the preliminary hearing when you go to the trial court, you are charged not a complaint, but it's then called information.
It's a little complicated, but if you're indicted, you don't have a preliminary hearing, you skip the preliminary hearing part and go right to the trial court arena. It's the same thing with the federal court, magistrate court and district court.
If they file a complaint, you go to the magistrate court and then waive the preliminary hearing and they indict you and then you go to the district court.
The Role of Miranda Rights
Interviewer: How about in terms of Miranda, do you have clients say, “Oh, they didn't read me my rights?”
The Rules Regarding Miranda Have Evolved over Time
William Kroger: Unfortunately, the Miranda Rights don't apply anymore. There's a case that came down a couple years ago that states that if you want your Miranda Rights, you can specifically ask that they be read to you. It's not like it used to be where the officers would have to read them to you, and then they would get you to sign a little admonition saying that they read it to you.
They still do that to protect themselves, but now the Supreme Court has ruled that you don't really necessarily have that right to have Miranda read to you.
Do You Have Any Options If You Weren't Mirandized?
Interviewer: What do you do if someone complains they weren't read their Miranda Rights?
William Kroger: Sometimes there are still things you can do, but typically, there's not much you can do. It seems that the police still follow procedure. The police still have people sign the Miranda admonitions that say that they've had their rights read to them. Typically, there's not much you can do when somebody doesn't get their Miranda Rights read to them.
How is Bail Set?
Interviewer: How does the bail system work for most of the crimes that you work with? Do people usually get let out on their own recognizance or is there always bail?
Los Angeles County Usually Follows the Bail Schedule, Which Determines What the Bail Will Be Based on the Crime
William Kroger: There is typically bail. I have a couple of clients right now that have very high bail, so they're not going to get out, but typically, bail is set. We work together with a really great bail bondsman who can get most of our clients out within a couple hours. Many times if you go to court, you can try to get the bail reduced, but for the most part, in Los Angeles, they use what's called the bail schedule.
Essentially, it's a schedule of what the bail should be. If you're charged with X crime or arrested for X crime, your bail is going to be X dollars. It's a chart they use to determine the amount of bail.
Your Attorney Can Argue to Have the Bail Amount Modified
Interviewer: Are you able to get bail modified? Is that part of the work that you can do?
William Kroger: Yes, we get bail modified and a lot of times we try to get our clients released on their own recognizance so they don't have to put up bail.
In State Court, You Can Usually Pay 10 percent of the Bail, in Federal Court, Cash Bond Is Required
Interviewer: Are most of the bonds that you see all cash bonds or can the people put down 10%?
William Kroger: In state court, they could have put down 10 percent and in federal court, it's typically cash bond or they have to put up property.
Bonds Can Be for Any Amount; the Average Is Usually $30,000 – $50,000
Interviewer: What amount is a bond usually for?
William Kroger: In the last couple of months, I've seen anywhere from a few hundred dollars to 7 or 8 million dollars, so it ranges all across the board. I would say the average is probably $30,000 – $50,000 or close to that.
What Events Happen after the Arrest and Bail Bond Process?
Interviewer: What is the general case process once you get bonded out of jail? What's the sequence of court events?
The Next Court Appearance Is the Arraignment, Where You Will Hear the Statement of Charges
William Kroger: The typical process is, if you're arrested you get bailed out, and once you're bailed out, you have your arraignment.
Interviewer: That's where you make your plea, guilty, not guilty, or any of that?
Most Often, You Are Counselled by Your Attorney to Enter a Plea of Not Guilty
William Kroger: That's where your arraignment is. They can read to you what the statements of the charges are and you can waive that reading. Typically we waive it; we don't like everybody to know what our clients are charged with so we waive reading the complaint in court and enter a plea of not guilty.
Felony Charges Follow a Different Court Process
Now, it's a different process for felonies than it is for misdemeanors. On a felony, after the arraignment you have 10 court dates to have your preliminary hearing and then once you have your preliminary hearing, it's two weeks from that date to go to your new arraignment in a trial court.
Interviewer: Then you'll either negotiate with the prosecutor or you'll go to trial on a felony?
There Is a Pre-Trial Motion Where Your Attorney Files Any Motions and Negotiates with the Prosecution
William Kroger: Typically what happens at the arraignment in trial court is you'll set a 30 day date, which would be your pre-trial where you come in and file any motions and negotiate the case with the District Attorney. Your trial would be 30 days from that date if you decide to go through trial.
To Prepare a Defense for a Felony Charge, Your Attorney May Not Request the Court Follows the Rules for a Speedy Trial
This is what happens if you're going by the speedy trial rules: 10 court days to have a preliminary hearing, two weeks to have the arraignment and the trial court and then 60 days to have the trial. Typically, we don't follow those timetables because we like to make sure we have all investigations about the case complete.
So after the arraignment, we will usually set a date about a month to 40 days out to have the first hearing in court. The first hearing is called a preliminary hearing setting date, so it's a date where we actually go and we try and negotiate the case before the preliminary hearing.
We try to go in there before the preliminary hearing, before any evidence is presented and we try to negotiate the case. If we are not able to negotiate it at that time, then we'll typically go forward with the preliminary hearing.
Misdemeanor Cases Do Not Have Preliminary Hearings
Interviewer: What is the criminal process for misdemeanor?
William Kroger: On a misdemeanor, you have your arraignment. It's a little different because you don't have a preliminary hearing, but you have your arraignment and then you have the right to have a speedy trial. Again, we usually give up the right to have a speedy trial. We set the court date for about 30 days and we try to negotiate with the District Attorney.
In Los Angeles, many District Attorneys won't deal with you unless they're in court, so most of the discussion takes place in court. A lot of our clients don't understand that.
In Los Angeles County, You Will Not Have to Post Bail for a Misdemeanor Charge
So with a misdemeanor, typically in Los Angeles, if you are arrested you are going to be released without even having posted bail and you'll have to go back to court about 30 days after you're arrested. It's probably the maximum, but it could be two, three, or even four weeks after you're arrested that you'll have your first court date.
As with a Felony Charge, Prior to Going to Trial, Your Attorney Will Negotiate with the Prosecution to Reduce the Charge
In the arraignment you waive reading the complaint because you don't want everybody knowing what you are charged with. Then you set up for a pre-trial date, about 30 to 45 days out and you try to negotiate the case with the District Attorney. If you don't negotiate it at that point and you are going to file any motions, you file the motions and you set the case for trial and the trial will happen within 60 days of the arraignment. If you do what is called waiving time, it will happen on a date that you pick.
Consenting to Police Searches in California
Interviewer: Are there any other big misconceptions people have about the criminal process or mistakes that they make that you have to remedy?
When Is a Search Warrant Required to Search Your Home or Vehicle?
William Kroger: Frequently, people will consent to searches and they don't understand why police are allowed to search their house or their cars. Unfortunately the 4th Amendment has been whittled away quite a lot by the Supreme Court. The police can really use plain view or plain smell if they think criminal activity is going on.
There Are Exceptions to the Search Warrant Requirement Which the Police Will Use to Their Advantage
There are certain exceptions to having a warrant that they can use to go into a residence. If they drive by a house and they can see something illegal in it, they can go in that house. If they think a crime is being committed or if they think there is a fleeing felon, if somebody is running from the police, and they use this to run into your house and you have something illegal in your house, they can go right in after this fleeing felon. Lo and behold if you have something illegal there they can get you too.
So people have misconceptions that they're safe from unwarranted searches and seizures, but there are so many different exceptions to the warrant requirement that you really aren't. That's why I think the police can manufacture reports to establish that there was some kind of probable cause or some reason to go into that location or that car or to stop that car.
Usually when it's a car stopped, they'll have some kind of tangible evidence, like the license plate wasn't there, or it wasn't registered, that is something they can back up and prove to show probable cause.
Interviewer: So that gives them probable cause to stop you and then once they've stopped you, they figure out other ways to implicate you?
California Law Permits Police to Search Your Vehicle, Including Any Closed or Locked Containers
William Kroger: Once they can stop you and they can establish probable cause, they can search you. Under the California Law they can search anywhere in your car if you're in your car, including any closed or locked containers.
Interviewer: Really, so if you have a locked glove box or a locked trunk, they can search those areas?
William Kroger: Yes, absolutely. Under California versus Acevedo, they can search any container or compartment in your car once they establish probable cause. It used to be they could only search within your wingspan; somewhere you could easily grab a gun, but that's now changed with California versus Acevedo, which was about an 18-year old case. They can search any part of your car that they want.
Interviewer: What's the typical scenario with a car search that you hear from clients, how does it flow from the stop all the way through the search?
After Stopping a Driver, the Officers Observation Leads to a Search
William Kroger: Typically what happens is somebody will get pulled over, possibly for following too closely or their registration is expired or they make a lane change without a signal or they're swerving in the lanes. They'll get pulled over and law enforcement will come up to the car and sometimes they'll smell marijuana; for this example we'll illustrate what happens in marijuana cases.
The officers will say, “We smell marijuana.” Once they smell that marijuana and because marijuana possession is still an infraction, meaning it's illegal, you get a ticket for it. Once they smell marijuana, they can search any part of your car. Alternatively, if they approach your car and they see you have a knife or a quantity of money on your passenger seat, they will initiate a search.
Common Scenario That Leads to a Police Searching a Vehicle
The Police Are Well-Versed in Ways to Look for Evidence to Show Probable Cause to Justify Their Search
I've had clients come to me with different scenarios. I had a client who had money in the floorboard of his car, but somehow the officers could see it when they were on the outside of his car even though it was probably impossible. But they claimed they could see it and based on that they believed that he was transporting a large amount of currency for illegal purposes. They established probable cause and searched his car.
Can You Prevent the Police from Searching Your Vehicle?
Interviewer: What happens if you're pulled over and the police want to search your car, will they just ask you or do they tell you they are searching your car? What if you say, “No”?
William Kroger: I was pulled over when my wife was driving. We were pulled over because we didn't have a license plate on her car, so the officer pulled us over for not having a license plate. When he pulled us over he stood out of the car with his flashlight and he looked all in the car with his flashlight while he was asking for her license and the registration.
If the Police Cannot Establish Probable Cause, You Must Give Your Consent to a Search
So they pull you over, and they know what they're doing, they're trained to do that. They're looking in your car, but no, to add to your question, as far as consent, you have to give them consent if they don't have probable cause.
The Police May Allege That You Gave Your Consent
So they'll say, “Can I search your car?” quite a few times, when we go through reports and this comes up, my client will say, “No, I told him he couldn't search my car,” but the report will say that he did give his consent.
It will indicate he said, “Yes, it was okay to search the car,” and in this example, they had marijuana in the trunk that was completely sealed in bags that nobody could smell, and my client said, “No, you can't search my car.”
The police said, “Well, we're going to search it anyway,” and then they uncovered the marijuana and the report indicated, “Oh, when we pulled them over we could smell marijuana.” So they would fabricate the probable cause.
After an Arrest
Interviewer: How do people tend to handle being arrested? What's their emotional state when you work with them? What have you learned?
Being Arrested Is a Traumatic Experience
William Kroger: It's very traumatic. A lot of times when people are arrested they put these handcuffs on them and they put them on too tight. I've had so many people tell me that they've lost sensation in their hands and their hands are numb. It's very traumatic in the way you're treated when you are arrested.
When my clients' houses are raided by the police, they will come in with 15, 20 officers with machine guns, wearing armor, and wake people up very early the morning. I've listened to tapes, and the pounding on door when they come in to announce themselves is a horrific experience. The adverse effect on people is really bad.
A number of my clients are marijuana dispensaries, and they have been raided. They come in and put guns up to them. These people are in their early twenties and it's very traumatic. One thing I always tell them is, “Look, you need to go to therapy after this and work through this, otherwise, you are going to be scarred for a long time after having a gun put up to your head.”
How Public Is a Criminal Charge?
Interviewer: In a lot of your cases, how public is the person's situation going to be and will friends, family and work find out?
William Kroger: Sometimes they do find out, but for the most part, when my clients are arrested they'll notify somebody in their family because they'll need to get bailed out. They'll want help when they're in jail and they reach out to their families.
Interviewer: How about expungements or sealments, is that available for any cases in California?
Expugement and Look Back Period
If Your Sentence Was Only Probation, You May Be Eligible for an Expungement
William Kroger: Typically an expungement is granted on most cases where the clients have just been sentenced to probation. If you have committed a crime and then you're put on probation and you complete the terms of your probation successfully, you file the necessary paperwork.
Sometimes you have to appear before the judge and you can get the cause expunged, which means it's wiped off your record. The court can also expunge the record if you've been to prison, but it's discretionary. In other words, you have to argue with the judge or persuade the judge why your client should have the case expunged even though they went to prison.
California's Look Back Period
Interviewer: Do you have clients that say, “Oh you know, I just pled to this offense years ago and now I'm facing something else and they're trying to say it's my second offense.”
A Prison Sentence Is a Factor in Determining a Second Offense
William Kroger: It depends on if it's state of federal court, and it also depends on whether or not they did prison time or not. This is because if you did go to prison then it's a prison prior. If it's just an offense, they consider it a prior-able offense like a DUI or a drug sales charge then they'll use that against you. There are a couple of different breakdowns in that, but it's usually five years and then 10 years look-back period to determine the prior-ability.
Criminal Defense Case History
Interviewer: Can you share a case history?
William Kroger: One of my favorite cases was a client who was growing marijuana in his house, in his garage. He actually had just packaged up a quantity and he put a few pounds in a closet that he was going to sell. His friend came and said, “Hey, can I borrow your truck, I've got to go to the market?” He said, “Sure.”
He let the friend take his truck and go to the market and he ended up robbing the market. Then there was a police chase and the friend drove back to my client's house and he ran in to the house and hid in the closet, right on top of the marijuana because he didn't know it was there.
The police came in and they arrested everybody. I was able to have the charges dropped against my client. That was just based on the storage and based on the circumstances of my client; we were able to get the charges ultimately dropped. I thought that case's circumstances were pretty funny.
How Long to Resolve a Criminal Case?
Interviewer: How long do criminal cases take to resolve?
Most Simple Cases Are Resolved within two to three Months
William Kroger: It depends on how complicated and complex they are. A big factor is also how many defendants are charged in the case. If it's just your normal misdemeanor case, it could take about two months to resolve. If it's a little bit more of a complicated misdemeanor case, maybe three months.
If it's a felony case it probably would take two to three months to resolve it if it's pretty simple but if it's more complex it could take any amount of time. Then depending on how many defendants, like I said, the more defendants, the more lawyers, the harder it is to schedule hearings, the more different things are going on because everybody's got a different level of culpability.
Cases with Multiple Defendants and Multiple Attorneys Take Longer to Resolve
Those cases take longer and the bigger the case the longer it could take because you want to do more thorough investigation if your client is looking at a serious prison sentence. Whereas with misdemeanors, clients usually aren't looking at lengthy incarceration, they just really want to resolve the case and get it over with.
I'd say, under the law, you have 60 days to have your trial on a misdemeanor case, so most cases could be resolved in two months. I think most of our misdemeanors go between two and three months, sometime a little bit longer and then the felonies usually go for three or four months, sometimes a little longer, maybe five or six months.
There are cases that could take a year or more. I had one client who took over 20 months to resolve his case and he was in custody the whole time.