Debbie,

It's not looking good here either. Although the PD has accepted my letter about my son's history and he has told me to start working on character references, his words were "this case is new and the process of getting this worked out has only just begun".

I think that my family and my son have all been very naive in thinking that this was going to be resolved in a short amount of time.

J:-(

I can’t speak to your son’s specific situation, but here are some common reasons for hearings.

1) Revision of Bail: often, bail is first addressed quite soon after an arrest is made, and at that point the attorneys have had little opportunity to undertake the kind of investigation that would assist in presenting a bail case. For instance, the details of the crime might not yet be certain. Perhaps the attorney wants to have his client examined by a psychologist to determine risk of harm if released.

2) Probable Cause: depending on how a person is charged, there may be a need to conduct a probable cause hearing. For instance, when police arrest someone, it may be that only the police have determined that a crime has been committed and that the person they’ve arrested is the person who committed it. However, the police are neither lawyers nor impartial. Thus, a judge might conduct a hearing to determine if there is probably cause to believe that a crime has occurred, and that the defendant is the one who committed it. Probably cause does not mean that one is guilty—it only means there is enough basis to warrant the arrest. It is not uncommon, however, for defendants or their attorneys to waive probable cause hearings.

3) Charges/Plea: once the charges are finalized, a hearing may be conducted so that the charges can be read to the defendant, who has a constitutional right to know what he is accused of. Sometimes, at this hearing, a defendant will be asked to make a plea, and typically enters a not-guilty plea.

4) Status Conferences: there are a number of concerns within the criminal context that warrant sometimes frequent conferences. First, the constitution entitles any defendant to a “speedy trial.” This means that the government cannot, without good reason, drag out proceedings indefinitely. Judges want to be sure that the case is moving along so there is no violation of the right to a speedy trial, and thus they may want to have regular conferences to see that there is no unnecessary delay. Frequently, however, the prosecution and defense will voluntarily agree, at these hearings, to extend the time, to give each side time to negotiate and prepare. Second, there are requirements that each side divulge to the other certain evidence and information, and these conferences are a good way to ensure that such disclosures are made.

There are other possible reasons for hearings, and I’d definitely check with your son’s lawyer to determine the precise reason for this one.

Adam

Adam,

You continue to be an amazing source of information. A few days ago the PD told me in an e-mail that the process of getting this started has just begun, I think that it must be # 4 in your post-both sides have asked for more time

My son has hinted that he would like to be bailed out now that his hearing has been postponed. However, it is too risky with his mood problems, the chance that he could run, etc. If anything happened, not only would we be devastated, but I would be held accountable for the total bail amount..

To be able to bail him out and not do it...it's a terrible decision.

J

crushed- I have to agree that your process is just beginning. My husband was charged with CP charges as well. Our ordeal started late January 2012, that is when the FBI raided our home. My husband was not arrested that day, and we heard nothing more concerning it all until late June, indictment took place mid July. Here we are in December, and we are at the presentence investigation stage, once that is complete I've been told we will get a sentencing date. So, it really is a lengthy process. Our lawyer didn't have us begin collecting character references until October, which was after a plea deal was reached. We actually didn't even begin to start telling people about everything until June, when my husband was served his summons. Since it was an ongoing investigation, we were actually told by our lawyer to not talk to anyone early on, so you may want to hold off on saying too much until you have to.

My piece of advice would be to talk to your son's lawyer and ask if he has talked with the prosecuting attorney yet and if he has any plans to do so. Our attorney was in touch with the prosecuting attorney from the beginning, well it was about 3 weeks after the FBI raid when we hired our attorney. Our attorney immediately got in contact with the prosecuting attorney and made arrangements for upcoming situations. For example, an agreement was made early on that the prosecutor would contact our attorney when the indictment came, allowing my husband to only be given a summons to appear, rather then a warrant for arrest. Our attorney also arranged a meeting prior to indictment with my husband and pretrial services so they could meet my husband, find out about his job, local support, etc... So, going into the indictment my husband was charged, but not arrested, and was allowed to go on his own recognizance, with very few restrictions. Our attorney has made sure to take measures to keep up with this whole process, which has kept my husband from not having had to go through an arrest up to this point.

I can relate on the mood problems as well. I had no fear of my husband being a flight risk, but he was suicidal for months after the raid. I did all I could just to keep my husband alive, it was probably the worst so far in this whole process. All I can say is follow your gut. My husband is prior military and a gun collector, I had the guns removed the day the FBI raided our home for fear my husband would harm himself. I 2nd guessed myself later thinking I was going overboard by having the guns removed, and even thought of going to get the guns and bringing them back into our home, to only find out my husband had loaned a gun to a friend months prior that he picked up and proceeded to drive around in his truck for 2 weeks talking himself in and out of using it. The only thing that kept him from doing it was the thought of how our kids would cope with the loss of their Dad. He also later told me that if I wouldn't have got rid of the guns that day of the FBI raid, that he probably would have ended his life that day.

When your son does bail out, I would do everything you can to get him into counseling. My husband started counseling soon after this all started and I truly believe it's going to have a significant impact on the outcome of his sentencing. I also suggest you find him a psychologist, not just a counselor. Our attorney pushed for a psychologist, and even though I didn't understand why at the time, after a few meetings with the psychologist after a few months of just seeing seeing a licensed social worker, I understand why a psychologist was the better choice. His therapy with my husband is so much more productive and I believe is going to hold more weight when it comes time for sentencing.

If I can be of any help, I would be happy to answer any questions I can, please just drop me a message.

I heard a lot of CP charges are rejected for bail. The "records" were sealed in the beginning (actually still are) and they said if he got out on bail the records would go public. So that was their strategy. Coming to an end somewhat I don't see any good from it - but what else can you do but listen to the lawyers. The lawyers would not let us talk about the charges at all to even our family. Even me and his father knew very little of the charges until just last month. They didn't want anything getting out before they can wrap things up in the plea. Do not talk about it over the phone with him and if you visit with the glass/phones do not talk about the case with him then either because they are recording all conversations. This is the difficult part....not being able to talk to him about anything....the only private conversations will be between his PD/Lawyer and him.

I've looked up alot of cases in our area, mainly cases tried by the same Judge my husband has to get an idea of how he sentences. Anyhow, I always wondered why the indictment was listed sealed, then another entry later opening it up to public. I guess the whole "records" sealed in the beginning until being released on bail explains that. Our lawyer also told my husband he wasn't supposed to talk to me early on about the case, since it took a few weeks to get our lawyer, my husband had told me everything by then. My husband talked early on to the FBI. My husband worked all night and only had maybe an hour of sleep before the FBI showed, and he figured if he was honest, well we all know where honesty leads you. My husband gave them their case, and they know it, yet the prosecution still keeps trying to play hard ball.

I will tell you "co-operating" with pros & feds got my son nothing - actually I think made the case worse. He probably revealed more than they knew - because again he was 'CO-OPERATING" which he thought was the right thing to do. Yes, they drill into you the whole "secrecy" thing...even when my son signed papers to tell me and his father everything they still did not do it. It's all an ego trip for the prosecutor and feds - another notch on their belt. They don't care whose lives they destroy getting there....
The saddest part is you can kill someone and get lots less time.....what does that tell you about our justice system! I am disheartened everyday reading all these stories about our sons and husbands and what they will face.

ND Marie and Debbie,

Thanks for writing. It seems that every case is very different. The night my son was arrested, it was all over the news and newspaper in the county he has been living in (his grandmother's house). I told three people in my county until it was time to start soliciting letters. There was never any mention of not sharing information although I told my son that we should not talk about the case over the phone because I knew we were being recorded.

At the time of his arrest, my son (only 20) told the police several pieces of information that I know that he shouldn't have, but he didn't know to ask for an attorney first. The affidavit including the info my son told the police was on the internet! I think this is really going to hurt him.

The worst part of this is, my ex is an attorney and outside of one conversation with the PD (that I know of as he out of town for a week with his wife), I don't know how involved he is as he will not communicate with me. I believe that he is the one that should be following things closely with the PD, but I don't think that he is. The PD is nice but very young and inexperienced, and I am quite worried about that as well. At this point, the only thing I'm sure of is that we need to let our son stay in jail for his safety. After that, I don't know....

J

To respond to a few of the points raised in the last few posts:

1. In the federal system, a docket—essentially, a file—is created for each new criminal and civil matter immediately when it begins. This docket is accessible on the internet, with a paid subscription, via the federal courts’ PACER system (it’s an acronym). Lawyers access this site to monitor a case, but journalists, and anyone else, can do so as well. It is public.

The reason why indictments and warrants are often initially listed as sealed is that, at the time they are issued and posted to the docket, the defendant may not yet be aware of them. The government does not want to issue an indictment or obtain an arrest warrant only to find that, before executing the warrant, the defendant has fled. Thus, while these items are posted to the docket, they are sealed—rendered inaccessible to all but a few parties (court staff, prosecutors). Once the arrest warrant is executed, these items are then unsealed.

2. Bail practices vary from judge to judge and district to district. In New York, for instance, it is not at all uncommon for a CP defendant to be granted bail. However, in some more conservative districts, it is less common. Some judges never give it, others always do.

3. Some CP cases go unnoticed by the media, while others don’t. In part, this depends on the media practices of the local prosecutor’s—the United States Attorney. Each judicial district has its own U.S. Attorney, and each has its own website where it can post press releases. In New York, CP cases are not typically considered newsworthy because the U.S. Attorneys are trying to get press coverage for juicier cases—political corruption, terrorism, white-collar crime. A CP case might be considered noteworthy if the defendant is, for instance, a teacher or has access to children. However, in other judicial districts, CP cases are almost always considered press-worthy—especially in rural or conservative areas—and thus it is likely that the U.S. Attorney’s press officer will issue a public press release. Journalists at local papers often check these websites daily, and turn any press release into a story.

4. I know how awful it is that all of this horror that you are enduring is open to the public. When our country was founded, the judicial system was used as a means of oppression by the monarchy in England. Thus, it was thought, the only way to prevent abuse would be to make all proceedings public—no more secret trials. That worked well in our nation’s infancy, but, as you can see, can have serious repercussions now.

5. The wheels of justice turn slowly. Some CP cases are resolved in as little as 8 months. Others take years.

6. I strongly recommend that, where possible, counseling for everyone (defendant and family) be sought. Of course, with respect to the defendant, this should be coordinated through your attorney. I also strongly recommend that you visit http://www.atsa.com. This is a well-respected group of mental health professionals that address the needs of sex offender populations. I can’t speak for all of its members, but the few I know are very understanding and experienced. The association can help you find local therapists that have specific experience with these issues.

Adam

Crushed...you would think his dad being a lawyer would of drilled that into him - saying nothing without an attorney present. And yes, he is the experienced one that should be dealing with the PD. He might not be a criminal lawyer but he does know where to go to check on the laws for that crime. He also should be communicating with you at all times - even when he is away!
Adam...actually the records were still sealed until just months ago and my son was arrested and in county prison since May. I guess all cases are different. Thank you for all the time and input you have been giving to all of us. Helps greatly with the laws - crazy as they are!

Thank you, Adam and Debbie. I am already in counseling and I don't think my ex or other son (18) will go. I have asked for my son to have long-term counseling but will also check the site that you have recommended.

There have been times when my ex and I have had to communicate and we did. I don't know why he is ignoring me, but of all times, this is the time when he should.be communicating. If this goes to trial, I will just walk in and sit right down next to him! It is vital that we demonstrate to a judge that we are all there to support our son. I have always thought that he was an excellent attorney... until now.

Today, I have been thinking about hiring a private attorney. I would have to borrow the money. I am very concerned about the PD's lack of experience. I do not know what to do........

J

Crushed....make sure he is the "right" attorney - knowing all about the CP laws. Hard to tell you what to do - my son is getting screwed and we have already paid 37,000 to our "high powered" attorneys. If the mandatory maximum kicks in there isn't much they can do. If it's federal chances are you won't go to trial - very few wins in federal cases. Maybe Adam can advise a little more on this. Again I am only in 7 mos so don't have all the answers or advice.

Some things to consider:

1) Even if the PD himself lacks experience with these cases, his office does not. The federal public defender represents more CP defendants than probably any other lawyer or law firm. Thus, there is a lot of institutional knowledge that is available to even a young PD.

2) If there is not a serious issue in your mind that your son actually did commit the crime, you should consider whether it pays to hire a lawyer with significant experience dealing with forensic computer issues. Such lawyers--they can be pricey--are great if you think that a virus downloaded the images, that the computer has been tampered with, or that the government's claims are otherwise factually wrong. However--and this is the case for many federal CP cases--the issue is typically not the truth of the allegations, but the proper charge and sentence. If that is the case, you probably do not have to hire someone with tons of computer and technical experience.

3) Before you spend lots of money, another thing to do is find out about the practices of the prosecutor and judge that will handle the sentencing. For instance, if I know that the prosecutor's office has a policy that it will never lower a charge to possession when there is receipt or distribution, or that the judge routinely disregards what the lawyers say and gives a sentence consistent with his own uniform policy, I will be less inclined to spend great sums of money on an attorney, realizing that there may be little he can do that a PD can't. Sometimes any lawyer faces sever constraints in what he or she can obtain. So much depends on what the prosecutors and judge are willing to do, as federal CP cases rarely go to trial. Prosecution determines whether the ultimate charge is going to trigger a mandatory minimum (receipt or distribution will, possession won't). Judge determines the sentence within those confines. Some judges routinely give low or high sentences regardless of what the attorneys say, others don't. Thus, there is never a guarantee that an attorney can do much.

My own tendency in a case that I know won't go to tria and in which guilt is fairly certainl, unless there is some highly complex factor, is to hire an attorney not rigidly based on his experience, but instead based on his ability to negotiate and advocate effectively--that is, does he command the respect of the prosecutor and judge, and does he know how to advocate forcefully. Why is this my own personal focus? Consider this example. Imagine if you could hire Bill Clinton or Ronald Reagan, neither of whom has never represented a CP defendant, or instead a local lawyer who has handled thousands of CP cases. Bill Clinton and Ronald Reagan command so much respect, and are such effective speakesr and negotiators, that they might get the better result. This is because many cases are not won on the law, they are won on negotiation and advocacy of personal or emotional characteristics. That is not always true, but you get the point. I need to stress, however, that it is important that the lawyer have a reasonable knowledge of CP sentencing guidelines, as they can be complex and there are a number of fairly-recent cases suggesting that the guidelines are flawed. The attorney must be familiar enough with these developments to raise them with the judge. However, it is not necessary that the lawyer specialize in CP cases.

If it were up to my, I'd hire a local attorney--preferably a former prosecutor--that had handled a reasonable number of CP cases and was known to command the respect of prosecutors and judges. I know this can be difficult for non-lawyers. As an attorney, I have a decent idea--based on reputation and industry knowledge--of who the best attorneys in my area are, so I have a sense of who has the best chance of doing a decent job.

I note, however, that my decision is colored in part by my ability to pay for an attorney. Also, I should note, many people do exactly as I recommend and end up no different than they would with a PD.

Adam

Sorry for the occasional type.

Typo! It's been a long day...