misdemeanor

Does Trump’s Executive Order affect my criminal case?

PRESIDENT TRUMP’S EXECUTIVE ORDERS

On January 25, 2017, President Trump signed two executive orders (EOs) on immigration policy. These orders directed the Department of Homeland Security (DHS) to enlarge the deportation dragnet and further militarize the southern border of the U.S.  The administration expanded the group of people who will be priorities for deportation, specifically noting “removable” immigrants who have been accused or convicted of committing criminal offenses. The EOs also reflected a focus on having local law enforcement agencies perform the functions of immigration officers through formal agreements and by denying federal funds to “sanctuary jurisdictions” that do not comply with requests to help Immigration and Customs Enforcement (ICE) detain and deport immigrants.

Do the EOs change who is legally subject to deportation “removable”?

No. The existing immigration laws dictate who is legally “removable.”  Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions.  The President cannot redefine who is legally “removable” without an act of Congress.  However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.

Do the EOs change whom ICE will seek to detain and deport?

Yes.  Some individuals who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction.  Of note, any “removable” person who has been previously accused or convicted of a crime is now a priority for deportation.

Immigration authorities will prioritize deporting the following categories of “removable” people:

  • Those with any criminal conviction(s);
  • Those with previous criminal charges – even if such charges have not been resolved;
  • Those believed by immigration officers to pose a threat to public safety or national security;
  • Those who have a final order of removal; and
  • Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.

For those currently in the criminal legal system, it is important to note the EO makes no distinction between the types of crime or level of offenses that will make a person a target for deportation.  Also, it is likely ICE will prioritize people with prior convictions regardless of how long ago the conviction occurred or the level of the prior conviction.

Should I bother hiring a good Criminal Defense Attorney?

Yes! The executive orders confirm that immigrants with convictions will be targeted as a top priority for deportation.  It is crucial to not just negotiate dispositions, but fight them to dismissal in order to minimize immigration consequences and exposure to enforcement agents. This applies to immigrants with and without lawful status!   Make sure to hire a Criminal Defense Attorney that understands that any conviction even one that includes a deferred sentencing, probation, and expungement can still make you a priority for deportation.

Am I safe if it is a Municipal case?

No!  Dispositions considered to be minor or even “non-criminal” can make your client a priority or deportation. For example, DHS considers municipal violations to be misdemeanor convictions. It is important to hire a attorney who is well versed in criminal law and understands that the only way to keep you in the United States is to fight your case and have it dismissed.

What does this mean?

Whether you are documented, or are here without papers, it is important that you stay out of the legal system.  Don’t drink and drive, stay away from illegal controlled drugs, walk away from fights, and don’t carry a gun.   But, if you are arrested, your first call is to a highly qualified criminal defense attorney who is not afraid to fight your case, because the only chance you may have to stay in this country is to challenge the charges and get them dismissed.

Brian J. Boeheim, Esq. --- Boeheim | Freeman PLLP --- 918-884-7791

 

The Police Can Lie to You

The law allows a police officer to use deception in an investigation.  This means that during an interview by police, they can make false claims about what witnesses have seen or evidence they have recovered.  They can say just about anything they want in order to get a confession as long as the deception does not result in what would be considered coercion sufficient to make someone confess to a crime they did not commit.  Let’s be clear, this means that they can get away with almost any lie just short of telling you a loved one has died.

For instance, a detective might tell a burglary suspect that they have a witness who saw them enter a house, or that they found the suspects fingerprints inside the house.  If the suspect knows he had never been in the house, then you might think there is little chance of getting a confession.  But, recent studies have shown that suspects often confess to crimes they did not commit under the false impression that cooperating, even by admitting to something they did not do, will benefit them in the long-term, only to realize that they have created far greater problems for themselves.

Here is another example of how this might play out: A detective might tell a woman that her children will be taken from her and placed into foster care if she does not confess to a crime.  The threat of losing her children is sufficient to make some people admit to doing something they didn't do.  This borders on coercion, but once you have confessed it is hard to put that genie back in the bottle, because the police will begin to look through your life with a fine tooth comb trying to find anything to corroborate the confession they believe they just got.  Also, the confession will be used against her in any hearings to take away her children.

Should police be allowed to blatantly lie to suspects?  On the one hand, it is a very persuasive and efficient method to motivate a guilty person into confessing.  It would also seem that an innocent person would see through these lies and quit talking to the police immediately.  On the other hand, people who have something to fear can be intimidated and potentially pressured into confessing to something they did not do.  This is especially true of non-residents without papers, people with difficulty speaking English, and those who have little or no education.

What should you do?  If the police are interviewing you, they probably are looking at you as a suspect.  Politely tell them you have nothing to say, and that you want an attorney.

Understanding Deferred Probation

If you are charged with a crime, there will be one of four results when you go to court.  Dismissal is the best of all results because your charges have been dropped and you are free.  Jail or Prison time is obviously the worst result because it means you will be incarcerated for some period of time.  In between these two extremes are two forms of probation: Suspended Sentence and Deferred Sentence.  Let’s focus today on these two forms of probation.

If it is your first offense, your attorney may be able to get you deferred sentencing and probation instead of jail time.  This alternative sentencing solution is the best possible outcome other than an outright dismissal.  A deferred sentence allows you to have your court record sealed after successfully completing all of the court-ordered probation.  This means having all of your fines and DA supervision paid, as well as, completing any special orders like Drug and Alcohol Assessment, DUI School, or Batters Intervention Program, and obviously, you must not break any federal, state, municipal, or tribal laws.

Having your record expunged is a tremendous advantage since a criminal record can limit your job and licensure opportunities.  So how does this work?  It starts with you pleading guilty to the criminal charge.  However, instead of accepting the plea and rendering judgment, the judge delays judgment and sentencing, giving the defendant an opportunity to complete probation instead.

For example, a first DUI offender may plead guilty to DUI, but instead of convicting the defendant and ordering him or her to jail, the judge would defer sentencing and order the defendant to drug and alcohol treatment, community service, participating in a victim’s impact panel, and similar terms of probation.

If you were to violate probation or commit other crimes, the prosecutor will likely file a Motion to Accelerate sentencing. The judge may then accept the guilty plea and order you to serve a jail or prison sentence.  If the you successfully completes your probation, the court records are updated. Your guilty plea is changed to reflect a plea of “not guilty,” and the case is dismissed. There is no criminal conviction, and through expungement, your name is stricken from court records.

A suspended sentence is different from a deferred sentence. While both types of sentencing allow you to serve probation in lieu of all or part of the jail or prison sentence, a suspended sentence results in criminal conviction, which will stay on your record.  It isn’t jail or prison, but a suspended sentence pales in comparison to the benefits of a deferred sentence.