Tales from the Brown Desk – Episode 10 – Commonly Asked Criminal Law Questions… Answered.
Weekly Criminal Law Podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised.
Episode 10 – Answers to commonly asked criminal law questions, The distinction between types of crimes: felony, misdemeanor, & infractions, Do police need a warrant to conduct a search, What to do if there is a warrant for your arrest, Can an arrest warrant be recalled, What is bail/bond and how does it work, If convicted, how sentencing works, Most important right of the accused, Can police arrest you without evidence of guilt, What is a grand jury, and current events such as the Indianapolis Metropolitan Police Department filing criminal charges against dozens of people for threats, and Florida Man.
Jacob Rigney – It’s Friday afternoon. We’ve locked the door so we can reminisce about back when only weird fear mongers and crazy people wore face masks in court, and also because it’s time for another edition of our weekly podcast Tales from the Brown Desk. I’m Jake Rigney of Rigney Law LLC. With me as usual is my law partner, wife, and the angriest happy person ever, Kassi Rigney. Our host is Teri Ulm. Friendly reminder, Tales from the Brown Desk is a free-flowing conversation involving two foul-mouthed attorneys.It may include graphic descriptions of sexual activity violence and nature’s purse. It may not be suitable for children, adults, humans, aliens or anyone else. We basically just do this to give Google more work to do. Listener discretion is advised. Here’s Teri.
Teri Ulm – Hello Everyone. Hi Jake. How are you today?
Jacob Rigney – Oh I am okay. How are you Teri?
Teri Ulm – I’m pretty good. I’m happy it’s Friday. Hi Kassi. How are you today.
Kassi Rigney – Hi Teri. Fine. Thank you. How are you?
Teri Ulm – I’m good.
Kassi Rigney – Good.
What is the distinction between the types of crimes; Felony, Misdemeanor, and Infractions?
Teri Ulm – Yeah. Thank you. So in this episode of Tales from the Brown Desk, we are going to talk about commonly asked criminal law questions. Questions that you’ve probably been asked many times over the years of being defense attorneys and prosecutors. The first question is: What is the distinction between the types of crimes; the felony, a misdemeanor, and an infraction?
Kassi Rigney – Those are the categories in Indiana that where the government can basically interject themselves into your life and try and guide your behavior. And the first distinction is civil versus criminal. Civil are like ordinance violations for not mowing your lawn, traffic tickets… Those kind of things. And those are civil. And you know civil from criminal because civil you cannot go to jail for civil. It’s a fine. You might lose your license if you build up do the wrong thing too many times. But that’s an administrative thing, and again it’s you’re not facing jail. Criminal distinctly means you can potentially lose your freedom and that’s why you get the protections there. Because that’s the ultimate precious thing that we all have is our freedom. And then for within the criminal side of it you have misdemeanors and felonies. And misdemeanors are things that are punishable by less. Up to a year. A year or less. 365 days or less. And felonies are above. And then within each of those there are categories.
Jacob Rigney – Yeah. Typically felonies are what you would consider more serious offenses. They range from sort of the minor serious stuff like theft. Which could be not very serious but also could be pretty serious depending on what was stolen and how much it was worth. Whereas misdemeanors tend to be often more sort of quality of life type crimes. You know, for people who need to be taken out of the public for a day or so while they sort themselves out but are not the kind of people that you need to behind walls and keep away from everyone else for years.
The Right to an Attorney
Teri Ulm – Do you have the right to an attorney in all of these different types of crimes? Or, like a you mentioned infractions as a civil… So I know you can go and hire an attorney, but could an attorney be assigned to you if you have an infraction?
Jacob Rigney – So let’s start with the easier part. So with felonies and with misdemeanors yes, because you’re you can potentially receive a jail sentence. You have the right to an attorney. That’s guaranteed to you in the Constitution, and there’s case law sort of interpreting that. Gideon v. Wainwright was the the big case that guaranteed the right to counsel for everyone. So even if you can’t afford one, the court or the government will appoint an attorney to reepresent you for free. So we make sure that everyone who can potentially have their liberty restrained, has the right to an attorney, and has an attorney to look at their case. With infractions, because they are civil, you do not have the right to an attorney. You certainly can hire one. You have the opportunity to get an attorney if you want one to represent you, but you cannot go to the court and say I can’t afford an attorney. Please appoint one to represent me. Because it’s not a criminal matter. Gideon v. Wainwright doesn’t extend to infractions, which commonly include traffic tickets. So because of that, you do not have the right to an attorney, in that situation.
Do the police need a warrant to conduct a search?
Teri Ulm – Do the police always need a warrant to conduct a search?
Kassi Rigney – No. There are a number of different ways police can lawfully conduct a search. One of the biggest ways to avoid having to do a search is consent, or having to obtain a search warrant, was consent. You know, people can waive their rights, and they commonly do. So they oftentimes will try to get consent. And if you consent, than you waive a challenge to that. Now an attorney later can challenge the lawfulness of that consent. Was it obtained properly and that kind of thing. But on the side of the road, yeah. You can consent, let them get that. Then there are other things. You know there are exceptions to the search warrant. A vehicle is a common practice where the law is established that if police officers find certain things they can search that vehicle without having to go get a warrant first. And that goes down to technicality. I mean I hate to throw situations out because I don’t want someone on the side of the road, you know, trying to fight with police about whether or not they can get in their car. Because as I’ve said before, those kinds of legal battles are for the courtroom. And that’s the best place for them.
Jacob Rigney – Yeah. What Kassi’s describing is called the “automobile exception” to the warrant. There are a lot of different exceptions to it that have developed from case law mostly. Supreme Court case law over the years. And then there are also questions about… I mean there are also situations where they don’t have to get a warrant just because the Fourth Amendment doesn’t apply to it. For example, things that I don’t have a reasonable interest and privacy rights over. So, for example, if they decide to search… Teri, if they decide to search your house. Because they think that I have there’s evidence that will tend to prove I committed a crime. I don’t have an expectation of privacy in your house. So they can still use whatever they find against me even if they didn’t get a search warrant. Because I don’t have any standing to complain about them violating your rights. I can only complain when they violate my rights. So that’s another example. There’s also a search incident to arrest. Whenever the police are arresting you for something, they have the right to search your person to make sure you don’t have weapons or other contraband that you’re gonna sneak into the jail. So and there are several other exceptions. We probably don’t need to go through all of them today. But they don’t always have to get a warrant. No.
How long does it take the police to get a warrant?
Teri Ulm – How long does it take the police to get a warrant? Say that someone didn’t consent and they’re refusing… They’re not being compliant with the search. If the police needed to get a warrant to conduct the search, what’s the turnaround time?
Kassi Rigney – I think this ultimately is jurisdiction to jurisdiction. This day and age, it’s fairly quickly. And that’s because, particularly with OWIs, they do warrants so much that it’s established. There’s a procedure established for officers to get in contact with a judge 24 hours a day, and get those things signed. I can tell you in Marion County, a couple three hours maybe? You know… then there are other, you know. So it just kind of depends. But a couple hours. But I mean if they think that they have probable cause, they’re allowed to freeze the scene and hold the scene until they get an answer from a judge. They don’t have to let you go or let the suspected item they want to search go while they’re waiting for that. They can freeze it while they’re trying to get that… get permission.
Teri Ulm – So does that mean there’s a judge on standby at like 2 a.m. in the morning in Marion County just issuing warrants when the police request them?
Jacob Rigney – Yes. Absolutely. There is either a judge or a commissioner. Which in Indianapolis is the, I don’t want to call them assistant judges because they basically do everything that a presiding judge does. But… back when we had elections they were the ones that weren’t elected. But they are sort of an additional judicial officer that the court system keeps. And I think there’s 15 or 20 of them. And there is typically one of them on duty. Or an actual presiding judge on duty pretty much 24/7 to deal with officers warrant requests.
Teri Ulm – I never heard of a commissioner. From what you just said I’m assuming they have law degree?
Jacob Rigney – Yes. I’m fairly certain they do. The Indiana Code for judicial qualifications suggests that any person who’s selected to serve as a judicial officer should have a law degree and five years of experience before they’re selected to the bench.
What to do if there is a warrant for your arrest?
Teri Ulm – So if somebody out there knows that they have a warrant for their arrest, what should they do?
Kassi Rigney – Consult with an attorney first. There are a number of different ways that that can be dealt with. Ultimately you could end up having to surrender yourself to the police. But there are a couple maneuvers that an attorney may want to try before you get there. And then they can help guide you of, you know, don’t turn yourself in on Friday of Memorial Day weekend. You know. Maybe do it on Monday or you know coordinate the surrender with the court. Those kind of things. So I would say consult with an attorney first.
Can an arrest warrant be removed/recalled?
Teri Ulm – Could an arrest warrant be removed?
Jacob Rigney – They can be recalled. That’s the appropriate terminology. So, and you got to remember what a warrant actually is. It’s technically it’s just a court order. And the court order is to the police to arrest this person when you find them. To bring them before the judge. And just like any other order, the judge can rescind that order if they’re persuaded that it’s, you know, reasonable to do so. So, that’s kind of how that happens. Occasionally, they’re rescinded on somebody’s promise to show up, if they set a date, or or something like that. But sometimes they aren’t either, and sometimes the person just has to turn themselves in.
Teri Ulm – When the police received the receive the warrants from the judge, do they go out looking for the person?
Kassi Rigney – Again this is not something that’s gonna be a hard line rule. I know, for a fact, Marion County has a warrant team that goes out and looks for people. I’m not aware that the other counties have that. But then certainly, you know, I think maybe a county that normally doesn’t do that, if they get an arrest warrant for a murder, you bet they may prioritize that, and send people out to track them down. It’s not an order for them to go out and search for you. But different police departments may have a procedure for that. But it’s ultimately as Jake explained, when they come across you.
Jacob Rigney – Yeah. And I think that varies pretty wildly from jurisdiction to jurisdiction too. There are some jurisdictions where the police, you know I’m not gonna say they’re bored, but they don’t have a lot of hi-pro… high priority tasks in front of them. And sometimes serving warrants sounds a lot more fun than sitting with a radar gun trying to get people for speeding. So in some places they will attempt to track down and serve every warrant they have, as soon as it’s issued. But in a larger place where the ratio of citizens to police officers is a lot higher, the police simply don’t have the manpower to chase down everyone who doesn’t show up for a misdemeanor. And in those situations people often go months or years without encountering the police. Again and there’s just a warrant out for their arrest all that time. I’ve seen them go as long as 15 years without catching people who had warrants out for their arrest. So it that happens too. And yeah. It’s just really different depending on where you live and how bored the police are in your particular neck of the woods.
Kassi Rigney – Well and this brings up a good point, you know. If you have an active more in one jurisdiction and you move across the country, especially on some of the low level warrants, they may not bring you back. But you could get in this loop where your local police pull you in on the warrant, and they’re allowed to hold you for 15 days, and then they could be told well we’re not bringing you back. Well until that warrant is dealt with, that could potentially keep happening every time you encounter the police. So, it’s very… Consult with an attorney, right away to deal with it. Because it’s got to be dealt with. And it could it could, as Jake said, hang around and haunt you 15 years down the road.
Is there a national database of arrest warrants?
Teri Ulm – So is there a national database of warrants, so police in Florida know if somebody in Indiana has a warrant?
Jacob Rigney – Yes. There is a national database. All the states cooperate with each other to provide the information, I believe to the FBI, who keeps everybody’s information. And so that way wherever you are in the country they will be able to run you and see if you have a warrant at any place else. That does not mean that that other place will come get you. But as Kassi mentioned, it creates a problem if you keep getting arrested on a warrant that they won’t come pick you up for. Because you keep having to sit in jail over and over again waiting for, Marion County for example, to say you need to tell people in Idaho, yeah we driving all the way out there on a driving while suspended to come get him. Because that happens. People move away. They get arrested on the warrant someplace far away, and the sheriff decides it’s just not worth the trouble. But the warrant doesn’t disappear just because the sheriff won’t go serve it. They eventually let you out of jail, but the warrants still there.
Teri Ulm – Interesting. You could be let out of jail and still have a warrant?
Jacob Rigney – Yeah. Absolutely. Just in that sort of situation that I’m describing. If I got a driving while suspended here in Marion County, and then I moved to California, and I get stopped in California, and they run me they see that I have a warrant. They’ll take me in the custody. They’ll take me to the jail. They’ll tow my car. They’ll keep my car if I don’t pay the toll I fees. And then they will contact the Marion County jail in Indianapolis and say, hey we’ve got Jake Rigney out here in Oxnard California. You guys gonna come out get him? Because we arrested him on your warrant. And Marion County will say, no thanks. We’re not driving 2,000 miles to go get Mr. Rigney for that misdemeanor driving while suspended. And they’re like okay well thanks. And then they let me go.
Teri Ulm – With the warrant?
Jacob Rigney – Absolutely.
Teri Ulm – So there’s this website that I know you two are well aware of, mycase.in.gov. It’s a like a public database of many of the cases filed in the state of Indiana. Now there are times when I’ve searched on there for a particular person who is incarcerated and they have a warrant, an active warrant. Why do they have an active warrant yet they’re in jail?
Kassi Rigney – It’s kind of like a way for them to get in line. Like if someone’s serving a sentence like out of another county, and Marion County has a warrant, well they’ll leave it active so when he gets done with his sentence, and that other counties done with him, they know Marion County wants him. It’s a way to keep it active. Because the courts not gonna go back and periodically follow up on these people. They’re not gonna mark their calendar, Oh John Smith gets out in 2027. So we better come back and you know issue him a summons. No. They’ll put the warrant in, so it’s kind of like already in place. They don’t have to worry about it when that jurisdiction is done. They’ll… he’ll come and be under the jurisdiction of this.
What is a grand jury?
Teri Ulm – What is a grand jury?
Jacob Rigney – A grand jury is a panel of citizens chosen from a larger random group who sit and listen to the preliminary evidence, and the investigation that the police have done about something, and potentially testimony from possible witnesses so that they can determine whether or not charges should be filed. Now Indiana is a information jurisdiction. So they don’t have to do a grand jury. They can simply file a piece of paper charging a person with a crime and it’s… and the person is charged that way. But sometimes the prosecutor decides they don’t want to do it that way. Either because they want to force someone to come in and testify so they can collect their version of the events. Sometimes people won’t cooperate with the police, and so if you impanel a grand jury you can force them to come and answer questions. Or in other situations and this is just my opinion and me being honest… Elected prosecutors might tell you differently, but sometimes when a case has a particular… has a large spotlight on it due to media coverage or some other type of controversial subject, the prosecutor will impanel a grand jury to decide whether charges should be filed or not, so that nobody blames him for filing the charges. Right. Because that way he could just say look we just… we put it in from the grand jury, and the grand jury decided to charge. It wasn’t me. I didn’t do it. I’m just I’m just doing what they said to do. So those are sort of the two functions that it generally serves. And they can also issue subpoenas to make people produce things. So… But that’s part of the prosecutor’s office, the grand jury function. The gray jury itself is just a group of people who sit and listen to evidence and decide whether there’s probable cause to charge a person with a crime or not. Is there a specific number of people that make up a grand jury? You know it’s funny because Kassi’s like, don’t ask me. I don’t know. And she’s waving her hand… And the truth is, I don’t know either. Because neither of us have seen a grand jury. They are secret. They are closed to the public. You cannot go watch one. So I actually don’t know how many people are supposed to be in a grand jury either. Only the people who worked in the grand jury division of a prosecutor’s office, or maybe the prosecutor themselves would know. Although I… it is likely all statutory in nature. So I’m sure I could figure it out if you wanted to give me 20 minutes to look it up. But having never attended a grand jury session, I couldn’t tell you. It’s probably 12.
How is a criminal sentence handled in Indiana?
Teri Ulm – Now if somebody is convicted of a crime how is sentencing handled?
Kassi Rigney – Well, you know, the easy way, if it’s if it’s a plea, if someone has made an agreement, and they’re admitted, there is often times what they call a plea agreement. And that often time lays out what the sentence is. So what I think you’re referring to maybe more so is like an open sentencing, a post trial conviction… Now the outside structure of this also controls what would be available to you in a plea. But generally we’re talking about an opening sentence. The first place you start is what were you convicted of? You know, if you were convicted of an a misdemeanor, you’re not going to the Department of Corrections. So the first thing what level of offense is it? Second thing, when you go to open sentencing, the lays out mitigators and aggravators. It says, okay judge. You know, what level of offense it is. It sets out what we call a presumptive sentence. And that’s like judge, this is your starting point. And then it’s lists mitigators. Which are say, these are good things you need to think about. And aggravators. These are bad things you need to think about to move that from the starting point. Higher or lower depending on the individual case. And then the judge would decide based on weighing those. And the lists and the law are not exhaustive. They’re just kind of a basic list. But anything that the attorneys can think of being relevant could be brought in for consideration. But the big controlling is, what were you convicted of.
Can you modify a sentence in Indiana?
Teri Ulm – And can you modify your sentence?
Jacob Rigney – Sometimes. It depends on several issues or several factors including what you were convicted of to begin with. There are certain crimes where you can only ask for a modification in the first year of your sentence. After that then you would be required to get the prosecutor’s office approval to file that request. So, it’s a list of crimes, that I think are commonly known as the violent crimes. Although not all of the crimes on it are actually violent. For example, carrying a handgun as a serious violent felon is not technically, I mean, under the normal understanding of the word violence, it’s not a violent offense. Right? You just possess the firearm when you weren’t supposed to. But it’s on the list of violent offenses. So if you were convicted of one of those, it’s difficult to get modification. The other time it is impossible to get a modification, I believe, is if you have if you pled guilty and it was a set term plea agreement. So you need… To understand the difference, you have to understand there’s different ways to plead guilty. For example, you could plead guilty and everyone agrees to just change the sentencing range. Right. If you’re convicted of a level 4 felony, usually the range is 2 to 12, but you could agree to change the range to 2 to 6 right and let the judge decide within that 2 to 6.
Teri Ulm – Can you bring it under two?
Jacob Rigney – No. Because well… Yes and no. Technically you can because there’s case law that says if you screw that up you’re stuck with it, but the judge isn’t supposed to. Because the minimum sentence for a level 4 felony is two years. So the judge isn’t allowed to give you a one-year total sentence on it now if they did, the Court of Appeals has said they’re not going to go back and fix it. That it’s just what it is and okay that happened. Too bad. Because that it came up, and what was kind of a really funny… Well, not funny, I should say, but ironic case where a person, I think, plead guilty to a C felony. Back in the old days, the C felony carried two to eight. And the judge only gave him one. And then suspended the one to like probation. Now that’s an illegal sentence. The judge shouldn’t have done that. The prosecutor should have pointed out to the judge that the judge can do that. But, I think, actually the prosecutor agreed to the one-year sentence too. So everyone agreed to it at the time. But then the defendant violated his probation, right? And so he comes back and he’s like well wait you can’t because this whole sentence was illegal to begin with judge. So you can’t give me the one year now on my suspended time because this whole sentence was illegal. You should have to throw the whole thing out. Start over. And the Court of Appeals is like, no. I mean it is an illegal sentence, but it’s what you bargained for, so you’re with it, Chad.
Kassi Rigney – Chad seemed to fail to realize that if they kicked it out he would have been required to get a worse sentence.
Jacob Rigney – Only if they convicted him again.
Kassi Rigney – Right….
Jacob Rigney – Who knows what their evidence… Where their evidence had gone by then, and whether they can prove it or not.
Kassi Rigney – True.
What is a plea agreement?
Teri Ulm – What is a plea agreement?
Jacob Rigney – So a plea agreement is a contract between the state and the defendant about how they will resolve their criminal case, that’s pending. They come in lots of different varieties, including ones where, like I said, you just change the range. And sometimes where you agree to every single aspect of what the sentence is going to be. And sometimes there’s sort of ones in-between that too where you agree about some of the terms but not other terms, and let the judge decide some things but not other things. And you can get really creative. And it’s so easy to get creative that I can’t even sort of describe all of them. You kind of… Every plea agreement is a little bit different. You kind of have to talk to everyone, all your clients about them, on their own. Which is fine because that’s what’s required anyway of us. You know. But it is, at its base, a contract by which everyone, the state and the defendant, agree about how their case is going to be resolved.
If the plan is to plead guilty, should an accused hire an attorney?
Teri Ulm – If somebody committed a crime and they decided that they’re going to plead guilty, do they still need a lawyer?
Kassi Rigney – I would recommend yes. One of the things is just because you did it doesn’t mean that they can prove it. And taking the moral ground sounds good before you’re in court being threatened with jail time. And I think a lot of people, slow down you know. And even if you know you want to plea, that doesn’t mean an attorney can’t review the case and find weaknesses or what I like to call pressure points to get you the best deal. If you just go in there and spill your guts, what incentive does the state have to make you a good offer?
Jacob Rigney – Yeah. If you’re going to plead guilty, you are also likely… You’re going to have a sentencing hearing. And sometimes what happens at the sentencing hearing is more important than what would have happened during the trial. Right. Because if a person has a bunch of mitigating circumstances that the judge ought to know about. You want somebody who can present that evidence in a way that’s persuasive without being sort of mind-numbingly boring or without overdoing it. And generally an experienced criminal defense attorney is going to understand how to do that in a way that a defendant doesn’t. Because there’s not a defendant in the world who’s seen as many sentencing hearings as a good criminal defense attorney has. I’ve… Between my years as a prosecutor my years as a defense attorney I’ve probably done 10,000 sentencing hearings. Maybe something like that. I mean it’s definitely in the thousands. Maybe it’s not ten, but it… I mean, it might be at this point. Yeah that’s a few hundred… That’s several hundred a year. But when I was a misdemeanor court I had a thousand pending cases when I was a prosecutor. So no matter how many times you’ve been in trouble, no matter how many sentencing hearings you’ve gone to, you haven’t seen as many as a good as a good criminal defense attorney has. And so your defense attorney will be able to present that evidence in a way that’s both persuasive without being burdensome, and that gives you the best chance at getting the sentence you want from the judge. Because the judge typically has a lot of discretion. And it’s gotten even better for defendants in the last few years since the code section has changed… since the sentencing code has changed and there are fewer mandatory minimums. That means that the minimum sentence for almost every offense is probation. Now that doesn’t mean that that’s what everyone’s going to get. But that is for, especially for level four or five felonies down, that’s always the minimum. So it’s good to have somebody on your side who knows how to deal with a hearing like that so that you can put your best foot forward and give yourself the best shot of avoiding being locked in a cage for months or years.
Teri Ulm – Now let’s say somebody takes their criminal charges to trial and the jury finds them guilty, does the jury sentence them or is that left up to the judge?
Kassi Rigney – That’s up to the judge. The jury has one rule and one rule only, and that’s determined guilt beyond a reasonable doubt.
Jacob Rigney – There’s only… and there’s there’s one exception to that. The one exception is the death penalty or life without parole. The jury does get to decide whether that sentence shall be imposed or not, but the judge can overrule them. Although that is very rare.
What are some of the most important rights an accused person has?
Teri Ulm – What are some of the most important rights an accused person has?
Kassi Rigney – I think on an individual, I mean it’s a case-by-case basis about which right is most relevant and important in your situation, I mean, in general the Bill of Rights is, you know, that’s the cream of the crop. They’re the laws trickled down from there to carve out other rights and protections.
Jacob Rigney – Yeah. I think the most important one is the right to an attorney. But I’m an attorney, so I would say that. Because it makes me sound like super important and cool and I like feeling super important and cool. But the thing about an attorney is the the rest of the rights don’t mean much if you don’t understand them. You know what I mean? The rest of the rights don’t help you very much if you don’t know how to litigate them in a courtroom. If you don’t know how to actually fight using the Bill of Rights. And I see this more often than not in post-conviction relief situations. You don’t have the, well you have the right to counsel in a post-conviction relief proceeding, but you do not have the right to make them present whatever crazy idea you think. And so a lot of times the indigent counsel for those cases will review their post-conviction relief petition. Say yeah, there’s nothing in here that constitutes a violation. You don’t have a case. I’m withdrawing. And then it leaves them to represent themselves on PCR. And then they… so they start doing the reading. And they start trying to make arguments themselves, and they’re usually nonsensical. Because they just don’t have any experience with what these things mean and how case law works and how the rules of evidence work and the rules of procedure. And so you see them sort of making all sorts of procedural mistakes, and creating all sorts of problems for their record doing that. And that’s pretty common, unfortunately, in that arena. So that’s again sort of why having an attorney is so important. Those things just don’t… If you don’t know how to file a motion to suppress and fight Miranda issue, then you’re gonna lose your Miranda issue even if the police violated your rights. Now you get a little bit better shot with Miranda because the burden is on the state. But there are other ones where the burden is on the defendant. So for example if you’re trying to fight a warrant, the burden is on the defendant to prove that that warrants defective. A judge already looked at it signed it. And it’s very rare, it’s not impossible, but it is very rare, that you find a layperson within the kind confines of a jail or prison who has both the faculties and the resources to successfully litigate an issue like that. It’s not impossible, but it is very hard.
Kassi Rigney – I’m convinced the most important right you have, is the right to an attorney.
Bail and bond. Are they the same thing?
Teri Ulm – Bail and bond. Are they the same thing?
Kassi Rigney – Yeah. There are two words for the same thing. It’s what you have to pay to get out of jail basically.
How does bail work in Indiana?
Teri Ulm – And how does bail work here in Indiana?
Kassi Rigney – Well the law outline, so if you get picked up, you know they don’t want people, you know, low-level misdemeanors or something getting stuck waiting to have to see a judge. So there are local county rules. There’s a lot of rules set up that say, okay, you know, kind of run through this checklist. You know, low-level offense and they will go ahead and set a bond based on those rules. Just as due course so that’s… you know, covers people so don’t get stuck over a long weekend or something like that. All these, you know, Covid things, you know, people get just processed out. But then if you have a higher level offense, you will be held until you see a judge. And then a judge will set it, and then you’d have to pay your produce. You know, they have… You can pay cash to the clerk or you can get a bondsman. But to higher level offenses, you generally have to see a judge.
What determines the amount of bond?
Teri Ulm – What determines the amount of the bond?
Jacob Rigney – There are a lot of factors that play into that. Typically the biggest ones are how many times you’ve been arrested before, and whether or not you’ve ever failed to appear for court when you were out of custody, And the reason is because bond exists to ensure that a person returns to court and that the public remains safe while the case is pending. That’s the two main reasons why bond exists. And so if you have a history of either not coming back or committing new crimes while you’re out on bond, then the court tends to place a much higher bond on you. Either to give you a stronger motivation to stay out of trouble or understanding that you won’t make it, and you’ll be held in jail while your case is pending.
What if you live paycheck by paycheck? Is this taken into consideration when setting bond?
Teri Ulm – What if you live paycheck by paycheck? Is that taken into consideration when that amount is set? Like what if you can’t afford $100? You don’t have $100 to spare. Is that considered?
Kassi Rigney – It’s one of the factors that would be considered, but your inability to pay does not trump the requirements that you return to court and the community stay safe.
If released on bail, do you have to go back to court?
Teri Ulm – So if somebody is released on bail, they have to return to court? It’s kind of like a promise that I will come back to court. Is there ever the time where someone is released on bail and they may not have to go before a judge?
Jacob Rigney – That does happen sometimes. Because what happens when you’re arrested is the police write down what crime it is they think you’ve committed onto a form and they give it to the jail. And the clerk’s office in Indiana will review that and set your bail based on what the police arrested you for. Even if you haven’t been charged with a crime yet. Okay. And you can pay that bond and then get out before the state decides whether they will or will not charge you with a crime. If the state then reviews the report that the police made and determines that they are not going to charge you with a crime then you end up either going back to court just to find that out, or if you’ve hired an attorney, your attorney may find out ahead of time that you haven’t been charged. Or that you’re not going to be charged. And then you never end up going back to court. So it is possible if you’ve paid a cash bond, you get that back when they decide they’re not going to charge you with a crime.
Can the police arrest someone without evidence of guilt?
Teri Ulm – Can the police arrest somebody without any evidence of their guilt?
Kassi Rigney – No. They have to have what’s called probable cause that can be anything from testimony to video to DNA. But a credible witness could be enough for probable cause.
Jacob Rigney – So I do see this from time to time where people just have a misunderstanding about what actually is evidence. Right. Because it could include just what one person says the to the police. It could include just a video. It could be all sorts of things. And some people have a tendency to assume that, you know, just one person saying something happened isn’t good enough. There’s sort of the common refrain that that’s just he-said she-said. Or that’s just hearsay. And the truth is, that he said she said cases and hearsay are allowed to be considered when it comes to probable cause. So if I tell you that I just got robbed, yes. That’s just hearsay. You didn’t see it, but that’s good enough, if you’re a police officer to arrest somebody for robbery, if I identified that person as the robber. Now the thing is you… if you’re the police officer, you’ve got my name, you’ve got my phone number, you’ve got my identity … If it turns out I’m lying later, you can charge me with a crime. So it’s not like there is no safeguard against people lying about things like that. But that is… It’s really good enough. It’s not a terribly high standard. It’s not real complicated. And there’s a good reason for that. Right. Because most people don’t commit crimes in front of a big crowd of people or on video, if they can help it. And we don’t want to discount victims just because they were alone when the crime happened. And that makes sense when you’re talking about every type of crime. Right? It makes sense when you’re talking about robbery. It makes sense when you’re talking about women who’ve been sexually assaulted or men who have been sexually assaulted for that matter. And it makes sense, you know, when you’re talking about police brutality too. It works both ways. Although I would expect the police don’t take those claims quite as seriously as they do whether he said she said type combo type claims. But I haven’t ever worked in internal affairs. So I couldn’t tell you for sure one way or the other. But the level of evidence that they need is low, but they do need some evidence.
If someone lies to a police officer, what type of crime was committed and what are the penalties for it?
Teri Ulm – If someone lies to a police officer, what type of crime is that, and what kind of consequences can come down on that person?
Jacob Rigney – False informing is the name of the crime. If we’re just talking about talking to the police. It is a B misdemeanor on its own. Essentially telling a lie to a police officer. It is an A misdemeanor if you told a lie to the police and it substantially interfered with an investigation. So it goes up a little bit depending on how big of a lie it was and how it affected the police. If you lie in court under oath that’s called perjury. That’s a felony it’s a level 6 felony. So, it depends on exactly how you did it, and exactly what you said. Like I’ve mentioned several times before, ever every case is a little different. And every defense is a little different too. So it’s difficult to say exactly what would fall and into what range it just depends on the type of investigation.
Kassi Rigney – Assisting a criminal could end up there too if you’re not one of the people, you know. Like a parent to child relationship or something… That could get you. If you were trying to cover up for a buddy or something and they found out that you lied.
Indianapolis Metropolitan Police Department filing charges for threats.
Teri Ulm – Now moving on to current events the Indianapolis Metropolitan Police Department said earlier this week that they filed criminal charges against numerous people for making threats against officers and this is all in the wake of the fatal shooting of Mr. Reed. As a May 19th, earlier this week, IMPD reported 26 threats against officers. What do you guys have to say about this? The public’s pretty upset. Officers were getting threats…
Jacob Rigney – Well look. Here’s what I’ll say. I don’t know what happened between Reed and the officer that shot him to death. I don’t think there’s any dispute that a police officer shot… I don’t want to mispronounce his name, but I believe it’s Dreasjon Reed. Still there is a way to register your disgust, if you believe that there was police malfeasance, and that way is to protest. You can protest peacefully and reasonably, and there aren’t a lot of things the police can do to stop you from doing that. But if you threaten harm to a police officer, that is not protected by the First Amendment. The police can do lots of things in that situation. Including arrest you for a crime called intimidation. And if you threaten to commit a forcible felony against a person, it’s a felony. If you do it while you’re armed, it’s an even higher level felony. The First Amendment does not protect what you call threats or fighting words. A lot of people think that freedom of speech means that you have the absolute right to say and do whatever you want, and that’s just simply not true. There are limitations even to your First Amendment right to speak. And that’s one of them. You cannot issue threats to people. So I mean obviously I would love to know what actually happened. And hopefully one day the results of the entire investigation will be made public, and we’ll all know or have a reasonable idea of what happened that day. Until then it is not a good idea to threaten anyone about anything, and it won’t be afterward either. It’s just were a good idea to issue threats. If something really really bad happened, and Dreasjon Reed was murdered by the police, then the police should have to answer for that. But I don’t know that we have the answer to those questions yet. And based on what I’ve read, and I haven’t read everything about the case, but based on what I’ve read, I’m not convinced one way or the other at this point. And I think it’ll be that way for a while. It’s unfortunate. I wish that none of it had ever happened obviously. And I feel awful for Mr. Reed’s family, that they’ve had to endure this. At the same time, I don’t know whether the shooting was justified or not at this point. I’ve seen reasonable arguments from both sides, and I don’t know all the evidence. So that’s that’s kind of where I’m at with it. Regardless of what happened, issuing threats is just unwise.
Florida Man indited on federal terrorism charge for spitting on police officer.
Teri Ulm – So Indiana is not the only place police receive threats. Florida Man threatened the police. He was coughing and spitting on an officer’s face claiming that he was infected with coronavirus. Florida Man was later than indicted on a federal terrorism charge. Florida Man’s defense attorney says that the prosecutors are stretching the law here… a law that’s meant for terrorists to cover run-of-the-mill police encounter.
Jacob Rigney – Ha.
Teri Ulm – Yes. It’s run-of-the-mill in Florida, police encounter. The Florida Man’s defense attorney also says the United States Attorney’s position in this case would make millions of Covid 19 patients in possession of a biological weapon. Do you think this is a good stance for this defense attorney to take?
Jacob Rigney – Well look… I don’t think his first argument is very persuasive. I would not call attempting to spit a potentially deadly disease on a police officer a run-of-the-mill police interaction. I’ve had several interactions with the police, and not once did anyone think about spitting on each other. Including the officers or me. So, you know, I don’t think that makes sense. Although his argument regarding the fact that if you say a person having Covid makes them carrying,,, means that they’re carrying a biological weapon, that is that may have a point. But in federal court it’s kind of a different story, I haven’t read those statutes, so I don’t know how broad or narrow they are. But that second argument at least is interesting. The first one is, I mean, I guess politely I’d call it puffery. You know. It’s defense attorneys have oppu… They have these weird options, right, when the media contacts them about one of their cases. And the first option is they can say things like no comment or I don’t discuss pending litigation. These are invariably, invariably that is the right thing to say, it is also extremely boring. And it does not get you any new clients. On the other hand, saying some crazy stuff like this was a normal routine police encounter, like people just spit on the cops every day. He is in Florida. Well. Look. I mean, I’ve been to Florida too. I even had an encounter with a Florida police officer once. In a DUI checkpoint. I was very drunk but not driving, so haha. But once again no one spit on anyone in this encounter. And by his logic, I apparently got real lucky. But… So that is a silly thing to say on one hand, right. On the other hand, it sounds cool, doesn’t it? Sounds like he’s trying real hard. Sounds like he’ll try real hard on my case too. Mm-hmm. Yeah. It sounds that’s what it sounds like. So I would be wary of anybody who makes comments like that to the newspaper. Because first of all you’ve broadcast your defense to the other side, right? Usually better if you let him guess about what your defense is, or let them worry about more than one thing. Now all they have to worry about is this rather silly defense that he’s proffered in the media. Or better yet, you could have proffered the silly defense and just hope it caught them flat-footed and they didn’t have anything intelligent to say about it later, and now you’ve spoiled the surprise of it by dropping it the media. So either way, it was a bad idea to do it. In Indiana, in fact, you’re not supposed to have any comment at all in the media about your cases. There are specific rules about pretrial publicity that attorneys sometimes pay attention to and sometimes don’t. And that includes, unfortunately the prosecutor’s office, sometimes. So, it is typically a bad idea, but I bet his phone rang the next day after he did it.
Teri Ulm – So Florida Man was not only threatening people with coronavirus… He was tested for the coronavirus, and it was negative.
Jacob Rigney – So he’d false informed as well.
Teri Ulm – Yes.
Jacob Rigney – Now that would be a misdemeanor, false informing. Because I bet you the police officer then had to go get tested and had to be quarantined. It probably substantially impacted their investigation. So, in Indiana you do that, that’s probably an a misdemeanor. Not cool, bro.
Florida Man finds naked Florida Man in his kitchen.
Teri Ulm – So earlier this week, Florida Man woke up at 6:30 in the morning by his dogs barking. The dogs trying to alert him to a threat… So he makes his way to the kitchen where he finds another Florida Man standing there. A complete stranger, and he’s naked. Completely naked. And when he sees the Florida Man, owner of the home, naked Florida Man grabs two knives and bolts out the door. And then the police officers find him, not far away, and he was hiding in a nearby screened-in porch under a swing. It was reported that he’s on drugs. What kind of drugs makes someone do this?
Jacob Rigney – All of them.
Teri Ulm – I don’t know.
Jacob Rigney – Acetaminophen.
Kassi Rigney – Most of them… if you take too many. I mean I’m serious, if you take enough. You know. I mean marijuana won’t kill you, but you might start hallucinating eventually.
Jacob Rigney – Yeah. And that’s the funny thing. People say that you can’t overdose on marijuana, and it is true that you cannot die from a marijuana overdose, but you can absolutely overdose on marijuana. And typically you experience what’s called psychosis from it where you become very disturbed about all sorts of things. So, look it could have been marijuana. It probably wasn’t opioids, but I suppose it could be. Look, everyone has weird reactions to these drugs sometimes. So it it’s hard to say. It’s hard to say what he was on, but on drugs is a pretty good guess. I’d say yeah. You don’t usually do that. Why the knives is what I wonder? What was he going to?
Kassi Rigney – I wonder if he didn’t maybe didn’t know where he was, cuz I mean he pulled… He grabbed the knives and fled. So, I mean it wasn’t he wasn’t taking an aggressive stance.
Jacob Rigney – Yeah. You think he thought he was in his house and he was like I’m just gonna run away I’m not gonna defend but I’m gonna take the knives.
Kassi Rigney – Well do you want to go into a fight like that? Naked?
Jacob Rigney – I don’t want to go…
Kassi Rigney – In your home or not. Whether it’s your house or not.
Jacob Rigney – I don’t what knives involved in the fight, if I’m naked. That’s a lot more likely to result in Lorena Bobbit situation.
Kassi Rigney – Here we go. We’re never gonna to… We’re trying to apply logic to the Florida Man situation. We will always lose.
Jacob Rigney – That’s right. Yeah. I’m sure he didn’t think about it that much. Or he did but it was because the the silver-back gorilla on his left shoulder told him bring the knives gummy.
Teri Ulm – Two of them.
Kassi Rigney – I like hiding under a swing. That doesn’t give you much cover.
Jacob Rigney What… I’ll just curl up in here. They’ll never find me.
Kassi Rigney – Well if I don’t move they won’t see me, right?
Teri Ulm – Right.
Jacob Rigney – How did…
Kassi Rigney – Don’t ask the question.
Teri Ulm – That wraps up this episode of Tales from the Brown Desk.
Jacob Rigney – All right. Thanks, Teri. And thank you for listening to Tales from the Brown Desk. Please remember, while we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create an attorney-client relationship with any listener. Our advice may not be applicable to some legal issues. Please consult with an attorney you have hired to review your legal situation before you attempt to apply the things we have said to your case. The attorneys at Rigney Law do not comment on their current pending cases. Nothing we have said in this podcast is a comment on a case we are currently working on, even if your name is Chad, or if you are a band from Florida. Thanks. Take care, everyone.