San Diego Criminal Defense Lawyers

Have Questions About What Happens in a Criminal Case?

We recommend calling to schedule a consultation. Every case is different, but the sequence of key events is often the same. You should assemble the best defense team you can as early in the process as possible. Here are some of the key phases of a case and where McKenzie Scott PC can help.

Do I need an attorney during the investigation phase of a criminal case? If charges haven’t been filed yet, how can an attorney help me?

The simplest and often best way to win a criminal case is to prevent one from ever being filed.

Criminal cases almost never start in the prosecutor’s office. Instead, an investigating agency like the local police, sheriffs, or FBI discover what they believe is a crime and do their best to piece together the details so that they can later recommend charges to prosecuting attorneys. Aggressive defense attorneys, like the McKenzie Scott team, can help limit the early risk by interacting directly on your behalf with law enforcement to mitigate your exposure and possibly help you avoid charges altogether.

The best defense attorneys know the tools local and federal investigators use to dig up evidence. Some of the tools law enforcement can use include: grand jury subpoenas, administrative subpoenas, search warrants, and wiretaps.

Law enforcement agencies use these and a variety of other legal (and illegal) methods to collect information about the public. If you or someone you love is contacted by law enforcement, you should consult with an attorney before participating in their investigation in any way. Law enforcement agencies sometimes lie (both legally and illegally) and they are not required to tell you if you are the target of the investigation. The attorneys at McKenzie Scott can advise you on how you should deal with law enforcement before an investigation spirals into a major problem in your life or results in formal charges.

What does the grand jury do?

A grand jury is a group of people from the community who meet and review evidence to decide whether the prosecutor has enough evidence to charge a person with a crime. A grand jury meets before charges are filed and the meeting is largely secret. The grand jury hears witness testimony and reviews some evidence, but never hears from the defense. It is entirely a one-sided presentation, and the defense does not even have the right to be present. Ultimately, the grand jury decides if there is enough evidence to charge a person with a crime. If they decide that there is enough evidence, the grand jury will file an indictment that outlines the allegations. A person charged by a grand jury is still presumed innocent until proven guilty beyond a reasonable doubt. The grand jury is different from the petit jury which is the group of people who serve on the jury at trial and determine whether a person is guilty or not guilty.

What should I do if I get a grand jury subpoena?

A grand jury subpoena is issued by the grand jury that is being led by the prosecutors seeking criminal charges. The prosecutors’ goal is to bring criminal charges against people and business entities. The grand jury has the power to issue two types of subpoenas. The first is a subpoena ad testificandum which requires a person to come and testify. The second is a subpoena duces tecum which requires a person or entity to provide documents to the grand jury. If you receive a grand jury subpoena, you should contact a defense attorney right away as you may be the target of an investigation or at risk of becoming the target of an investigation. There may be legal ways to challenge the subpoena or to limit its scope. It is important to consult with a lawyer and determine what your options are. The lawyers at McKenzie Scott understand that receiving a grand jury subpoena can be confusing and incredibly stressful. We are experienced in helping our clients navigate the challenges associated with being served with subpoenas as part of criminal investigations. We can review the subpoena and advise you about your options. Our goal is to ensure that you can make informed choices while also protecting yourself and your interests.

What happens if I ignore a subpoena in a criminal case?

While there are options in terms of how you can respond to a subpoena, ignoring a subpoena is not a good idea. Under both state and federal law, if you ignore a subpoena, you can be held in contempt of court. Contempt proceedings are independent criminal proceedings that can result in the imposition of both jail time and monetary penalties. It is understandable that you may want to avoid the stress and pressure associated with responding to a subpoena. But the best way to protect yourself and minimize the damage to your life and business is to consult with experienced lawyers who understand the subpoena process.

Why did my business get a grand jury subpoena?

If your business received a grand jury subpoena, it is likely related to an ongoing criminal investigation. Your business may be a target of the investigation, or it may have information related to the target of an investigation. It is important to review the subpoena carefully to determine what the subpoena requires of your business and what the deadlines are. If your business receives a subpoena, you should consult with an attorney to determine what your options are and ensure that you are in compliance with the subpoena. An experienced lawyer, like the lawyers at McKenzie Scott, will be able to provide comprehensive advice and guidance to ensure that you are making the right choices for your business in the long-term.

A. Should I talk to law enforcement if I’m arrested? If I don’t talk, won’t that hurt me?

No. If you are arrested, you should ask for a lawyer before answering any questions. Once you ask for a lawyer, law enforcement must stop questioning you until you have a lawyer present. A lawyer may not be available to meet with you immediately, but you should wait until you have an opportunity to talk to a lawyer before you answer any questions after arrest. If you have been arrested, it means that law enforcement believes that you committed a crime. Any questions that they ask you will be focused on obtaining more evidence to prosecute you for that crime. The goal of the questioning is to get a confession or incriminating evidence from you. Law enforcement officers receive extensive training in how to interview and interrogate people who they suspect of criminal activity.

When you have a lawyer with you during law enforcement questioning, you have an advocate with you at the table. Having a lawyer to consult with and get advice from is invaluable and can protect you from saying things that can be misunderstood and that will hurt you down the line. Do not make the mistake of thinking that you do not need a lawyer. The Fifth Amendment right against self-incrimination affords you the right to counsel during an interrogation because the stakes are so high when your freedom is on the line. The lawyers at McKenzie Scott have decades of experience representing people charged with crimes. Our mission is to protect our clients and get them home to their families as quickly as possible. Before you agree to speak with law enforcement, get the advice of a lawyer that you trust.

Are law enforcement officers allowed to lie to you?

Sadly, yes. Federal law and most state laws make it clear that law enforcement officers are allowed to lie and use false claims during interrogations to try and get a confession. This practice is allowed despite the knowledge that false confessions are a leading cause of wrongful convictions in the United States. What does that mean for you? It means that you should never answer questions asked by law enforcement without a lawyer present. There is no doubt that law enforcement techniques are psychologically coercive and that what you say during questioning can never be unsaid. While law enforcement officers are allowed to lie to you, it is a crime to lie to law enforcement. But, it is not a crime to remain silent, refuse to answer questions, and ask for a lawyer. It is entirely normal to want to explain or defend yourself when being questioned by law enforcement, however, it is not the best option. If you or a loved one are under investigation or charged with a crime, it is imperative to consult with a lawyer before talking to law enforcement and answering questions.

What are search warrants? – These are court orders authorizing law enforcement to search for evidence, seize evidence, or both. To get a warrant, investigators must convince a judge that there is probable cause to believe they will find evidence of a crime in a particular place. Everyone in the United States has a Constitutional right against unreasonable searches and seizures and there are a lot of legal rules protecting us all from improper search warrants. However, government investigators do not always follow the rules. McKenzie Scott attorneys have successfully challenged search warrants in both state and federal court – proving repeatedly that law enforcement agents at every level (from the police to the FBI) continue to mislead judges and abuse search warrants to get evidence in violation of the Constitution. When you hire McKenzie Scott to help defend against an investigation, you know you are getting attorneys at the cutting edge of litigation to protect your rights under the Fourth Amendment.

Do police or law enforcement need a warrant to search cell phones?

Yes, under most circumstances law enforcement officers need a warrant to search your cellphone. In today’s world, cellphones hold access to our most personal information. Family photos, calendars, banking information, call history, text message history, and location data that shows where our phone was or was not on a particular date and at a particular time are just a few types of information that can be stored on a cellphone. As Chief Justice John Roberts made clear in the Supreme Court’s decision in Riley v. California, “Our answer to the question of what police must do before searching a cellphone seized (during) an arrest is simple – get a warrant.” In that case, the Court found that a person has a legitimate privacy interest in the contents of their cellphone. For that reason, the contents of your cellphone are protected by the Fourth Amendment against unreasonable search and seizure. Law enforcement must have a warrant or a recognized exception to the warrant requirement to conduct a search of your cellphone. The exceptions to this warrant requirement are few. If law enforcement searches your cell phone without a warrant, any evidence found on the cellphone should be excluded from consideration in determining your guilt at trial. The lawyers at McKenzie Scott are experienced litigators and routinely file motions to suppress evidence where law enforcement officers violated the constitutional rights of our clients during their arrests including in circumstances where law enforcement conducted forensic searches of computers, cellphones, and other personal devices.

Should I allow law enforcement into my home without a warrant?

No, under almost every circumstance the law requires that law enforcement officers have a warrant before they enter your home. The Fourth Amendment’s protections against unreasonable search and seizure are strongest at a person’s home. If law enforcement officers knock on your door, you should ask if they have a warrant before opening the door. A search warrant should include the correct address and a description of the place to be searched. It should be signed by a judge. If law enforcement does not have a warrant and asks for your consent or permission to search your home, you should refuse. You are not required to allow law enforcement into your home. Law enforcement cannot get a warrant solely based on your refusal to agree to let them search your home. Law enforcement cannot punish you if you refuse to agree to a search. Even if officers have a search warrant or an arrest warrant, you do not have to answer any questions.

Saying no to law enforcement can feel overwhelming. Criminal investigations can be intimidating and scary, and many people do not understand their rights. Other people may understand their rights but not feel comfortable standing up for themselves in the face of such significant authority. At McKenzie Scott, we take pride in standing up for people who are not able to advocate for themselves. If you or someone you love is under investigation and you have questions about how to navigate challenges with law enforcement, we are here to help and offer advice built on decades of experience.

Should I consent to a search of my car?

No, agreeing to allow law enforcement to search your car does not help you in any way. If they are asking for your consent, it means that without your consent, they do not have the legal authority to search your car. If for no other reason than to save yourself the time and frustration of having law enforcement searching through your stuff, you should not consent. Make sure that you clearly state that you do not consent to the search. It is not uncommon to hear that a person consented to a search because they feared what would happen if they did not consent. While being afraid of law enforcement is understandable, it is also important to remember that law enforcement cannot punish you for refusing to consent to a search of your car. Law enforcement cannot use your refusal to agree to the search as a basis to search. If law enforcement threatens to get a warrant, call their bluff (because it may be just that) or let them go through the effort of obtaining a warrant if they can.

It is important to remain calm and respectful during interactions with law enforcement, but that does not mean that you must agree to give up your constitutionally protected rights. If you agreed to a search and now you are charged with a crime, the lawyers at McKenzie Scott may be able to help. There are ways to challenge searches that occurred after consent. Do not lose hope. We fight for every one of our clients as we would fight for our own friends and families. Our mission is to ensure that each of our clients gets the kind of zealous representation that they deserve.

Should I consent to a search of my cell phone?

No, absolutely not. Your cellphone is full of information about your life. Cellphones hold massive amounts of data. There is information on your cellphone that you don’t even know is there. Law enforcement can perform in-depth searches using special tools that help them get access to not only the information that you can see on your cellphone but also information that is not visible but is stored on the phone. Allowing law enforcement to search your phone gives law enforcement an enormous investigative advantage. Your phone holds information about your location on any given date and time. Through your phone, it is possible to gain access to your email account, your bank account, and any other applications that you use on your phone. Your phone stores all of your text messages, call logs, and voicemails. Even if you think that you deleted certain information, law enforcement has tools that can recover deleted content. For the same reasons that you should not consent to a search of your home or your car, you should not consent to a search of your phone. If there is information in your cellphone that you think may assist you in your defense, you should consult with an attorney first before providing the information to law enforcement.

Won’t it look suspicious if I refuse to talk or don’t consent to law enforcement searching me or my car?

The Fifth Amendment to the United States Constitution gives you the right not to talk to law enforcement and the right to refuse to consent to a search of your person and/or your property. It doesn’t just give you the right to refuse, it also ensures that your silence and your refusal cannot be used against you in a criminal prosecution. While it may seem suspicious to an individual law enforcement officer, it is not going to be evidence against you.

The criminal legal system is often not fair nor just. The benefit of a having a lawyer is that you have an advocate with education and experience in the legal system who can provide you with advice about the best choice among difficult choices. During an investigation, the choices that you make can impact the outcome of your case and make your situation better or worse. A lawyer can empower you with knowledge about the legal system and enable you to make those difficult decisions with full and complete information about the different possible consequences of each decision. Being the subject of a law enforcement investigation and prosecution can have long-term consequences for you and your family even without a conviction.

At McKenzie Scott, we understand how overwhelming criminal charges can be. We pride ourselves on our commitment to our clients and their families. Every lawyer at our firm is an aggressive advocate who understands the many challenges faced by our clients navigating the criminal legal system. Our representation comes from a place of compassion and humanity. We work hard to empower our clients to make the best decisions for themselves and their families. Providing sound, reliable counsel to enable you to make informed decisions is the core of what we do.

How can I find out if someone is in jail in San Diego County?

The first question to ask is which law enforcement agency arrested your loved one. The answer to that question will help you determine if your loved one is in state or federal custody. For example, if your loved one was arrested at the California-Mexico border, it is most likely that the person is in federal custody. To find out if your loved one is in federal custody in San Diego or Imperial Counties, you can contact the United States Marshal’s Service at (619) 557-6620. If your loved one was arrested during a traffic stop, they may be in the custody of the San Diego County Sheriff’s Department. The Sheriff’s Department maintains an online inmate locator available here: https://apps.sdsheriff.net/wij/. If someone was arrested by the Chula Vista Police Department, you can look to see if they are in the custody of CVPD by going here: https://www.chulavistaca.gov/departments/police-department/cv-city-jail.

What is bail?

Bail is the collateral required to be released from custody pending resolution of a criminal case. Bail can come in many forms: money, a promise by the defendant to return for all future hearings, a promise to abide by certain conditions, etc. While out of jail and on bail, a person will have to follow certain rules. If a person complies with the rules related to their release, appears in court as required, and reports to serve any sentence that is ordered (if relevant), any money or collateral put forward as bail should be returned at the end of the case.

What is a personal appearance bond?

A personal appearance bond is a type of bond used by some courts. It may have a variety of conditions associated with it including the signature and/or deposit by a surety. Some personal appearance bonds may not require a surety and may allow a person accused of a crime to be released on their own recognizance (sometimes referred to as “OR”) or to act as their own surety.

The bail process is a critically important step in a criminal case. It is the way that a person accused of a crime is released from custody during the case. A person who is not in custody during the case can continue to work/attend school, take care of family, and is better able to make decisions about the case without the stress of being incarcerated. A person who is not in custody is also better able to assist in the preparation of the defense. If you or a loved one is facing criminal charges while in custody, it is important to ensure that you understand the conditions of the bond and that you are actively working towards pretrial release.

What is a surety?

A surety is a person who comes forward to sign a bond for another person (the accused in the criminal case). The surety signs the bond and agrees that if the accused does not follow the rules related to the release from custody, the surety may be liable to the court for the amount of the bond. The bail system in federal court differs from the system used in state or county court. In state or county court, a person can provide a deposit to a bail bondsman who then posts bond with the court. But that practice is not as common in federal court. In federal court, the court often sets a bond that requires one or more people to act as sureties and sign the bond. For example, the court may set a bond in the amount of $20,000 secured by the signature of one surety. The surety must show the court that they have assets or income in the amount of the bond. Once that is done, the surety signs on behalf of the accused. The person is released from custody with certain rules to follow. If the person follows the rules, the surety will not be required to give any money to the court. If the bond requires a signature and a deposit, the deposit will be returned to the surety at the end of the case provided that the accused follows the rules of release.

How long will it take to get to trial?

Every case is different, so it is difficult to provide a precise estimate of the time it takes to get to trial. However, there are certain steps that occur in nearly every case. After a person is charged with a crime, the prosecutor must provide the person with copies of the evidence against them. This is the discovery process. Once the evidence is provided, the defense lawyer must review it and come up with a plan for the case. The defense will likely want to conduct their own investigation. This investigation may include interviewing witnesses, visiting specific locations, and collecting records. The defense may want to hire experts to contradict evidence presented by the prosecutor. This stage is very case specific and depending on the complexity of the case may take more or less time.

While investigating, the defense lawyer also will decide whether there any pretrial motions to file. Pretrial motions are usually legal challenges to the prosecution’s case. A motion to suppress is a pretrial motion as is a motion to compel discovery. It is possible that winning a pretrial motion can resolve the entire case in favor of the defense. After pretrial motions are filed and decided, the case is set for trial. The average time between being charged with a crime and set for trial is usually several months. The lawyers at McKenzie Scott understand all the ways that being charged with a crime impacts your life and work diligently to ensure that there is not unnecessary delay in our cases.

What is discovery in a criminal case?

Discovery is the word used to describe the process where the prosecutor and defense lawyer exchange information and evidence before trial. The discovery process continues from the time the case begins through the time of trial. Because the prosecutor is required to prove that a person charged with a crime is guilty beyond a reasonable doubt, most of the information and evidence provided in discovery in a criminal case is provided by the prosecutor to the defense. The amount of discovery depends on the case. Each case is unique and different. Some cases may have only a few hundred pages of discovery whereas other cases may have millions of pages of discovery. A person charged with a crime has a right to the disclosure not only of evidence that points towards guilt or innocence but also evidence that could affect sentencing.

Can prosecutors hide evidence?

No, the prosecutors are not allowed to hide evidence. In 1963, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence if material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83 (1963). In California, Rule of Professional Conduct 3.8(d) requires the prosecutor in a criminal case “make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence.” This rule is broad and sweeping and applies to all lawyers working as prosecutors in California. The lawyers at McKenzie Scott work hard to independently investigate your case but also routinely face off against prosecutors in court to demand full and fair access to all evidence in your case. It is hard enough for the accused to combat the many challenges that come with defending against criminal charges, to do so against prosecutors who play games with discovery or attempt to use the discovery process to impede the accused’s right to defend themselves is simply unacceptable.

What is the difference between a district attorney and an Assistant United States Attorney?

Both are prosecutors, the difference is their employer. A district attorney is a prosecutor who works for the County and brings criminal cases in a state or county court charging violations of state laws. An Assistant United States Attorney is a prosecutor who works for the federal government and brings criminal cases in federal court charging violations of federal law. Some crimes are violations of both federal and state law. In that case, it is possible to be prosecuted in state and federal court for the same conduct. When picking a lawyer to represent you, it is important to make sure that the lawyer has experience in the court where you are charged. There are many differences between federal and state court. The lawyers at McKenzie Scott appear frequently in both state and federal courts, and have deep experience in both arenas. Our breadth of experience gives us the confidence and knowledge to advocate for our clients regardless of who is prosecuting the case.

My loved one was arrested by the Sheriff in San Diego. How can I find out where he/she is?

If your loved one was arrested by a San Diego County Sheriff, it is most likely that they are being held in a county jail. The San Diego Sheriff’s Department runs the county jails and there is an online tool to locate people who are currently in custody. The tool can be found here https://apps.sdsheriff.net/wij/

Does the jail have to give you medical care?

Yes, the failure to provide adequate medical care violates a person’s constitutional rights. In Estelle v. Gamble, the United States Supreme Court explained that “deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” While the constitution requires that a jail or prison provide medical care to the people in its custody, the standard of care is often not what it should be. Because it is difficult for people to successfully challenge the care that they receive in prison, many people do not get the help that they need. The emotional toll that not getting adequate care takes on incarcerated people and their families is extremely severe.

One of the reasons that prisons continue to avoid accountability is the Prison Litigation Reform Act (PLRA). The PLRA placed requirements on incarcerated people before they can file a lawsuit related to treatment in prison. One of those requirements is that an incarcerated person must exhaust all administrative remedies by navigating through the maze of a correctional facility’s internal grievance procedures. Unfortunately, the internal administrative systems in prisons and jails are often extremely complicated and difficult to understand. The PLRA also caps the amount of fees that a lawyer can recover for representing incarcerated people in these types of lawsuits which makes it challenging for incarcerated people to find qualified lawyers to help them. As a result, many incarcerated people needlessly suffer from inadequate medical and mental health care while in custody. Our mission at McKenzie Scott is to expand access to justice for people whose rights are routinely violated. We recognize that incarcerated people are often the least powerful and most disenfranchised of anyone in our communities. If you have a loved one denied access to adequate medical care, reach out to our team so that we can help you explore your options.

What is a 1381.5 demand?

Every person charged with a crime has the constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution. A delayed trial can negatively impact a person’s life in a variety of ways. It can also make a case difficult to defend as evidence and witnesses may not be available due to the delay. If your loved one is serving a term of imprisonment in federal custody in California and has other charges pending in state court in California, it is possible to make a demand for a speedy trial under California Penal Code § 1381.5 to resolve pending charges. Once a demand is made, the state prosecutors must seek permission from the federal authorities to bring the person to trial and if permission is given, that trial must occur within 90 days. If the state prosecutors fail to act as required under the statute, the person can seek dismissal of their state charges.

This section also applies to persons who are serving time in federal custody in California but who have a pending sentencing in a California state court. The same demand can be made that prosecutors bring the person for sentencing. The advantage of seeking sentencing in state court while still in federal custody is the possibility of having any state custodial sentence run concurrently to the federal custodial sentence.

What is a 5150 hold?

A 5150 hold is a commonly used, informal way of referencing California Welfare and Institutions Code § 5150. A hold under this section allows an adult who is experiencing a mental health crisis to be involuntarily held for up to 72 hours in a psychiatric hospital. To be held under § 5150 a person must be: 1) a danger to others; 2) a danger to themselves; or 3) gravely disabled, meaning unable to take care of their basic needs. It is possible that the hold can be extended up to 14 days under California Welfare and Institutions Code § 5250. If you or a loved one is held under § 5150, there is a right to a certification review hearing. An involuntary mental health hold will appear in medical records, but it will not show up on a criminal record background check.

How do I know if the prosecutor will charge me?

Just because investigators think they have a case, does not mean the prosecutors have to file charges. McKenzie Scott often engages, negotiates, and disputes the facts of a case with prosecutors before charges are filed and before anything becomes public.

Those accused of crimes are presumed innocent, but people accused of crimes still face serious consequences in their lives – even when they win their cases through dismissal or through a favorable result at trial. Once charges are filed, the publicity, possible arrest, bond conditions, and court procedures all take a toll on the life of the accused. It is not unusual for people to experience the shame of suspicion, lose their livelihoods, lose trust with friends, family, and colleagues, and suffer a variety of personal and professional consequences whenever charges are filed.

At McKenzie Scott PC, we understand the devastating toll a criminal case can have on anyone suspected and accused of a crime. Wherever possible, we strive to prevent charges from being filed and to minimize the fallout and collateral consequences if charges are eventually filed.

What happens when you get to court in a criminal case?

Almost every case, whether it is in state court or federal court, will require you and your attorneys to appear before the judge several times. Since each case follows a different path and calls for a different strategy, we’ll try here to describe some of the major events in most cases and where McKenzie Scott PC fights for clients to get the best possible results. Of course, each case is unique and the processes and procedures in any particular case may vary depending on the individual facts and circumstances of that case.

What happens at the arraignment?

Different courts follow different procedures at the beginning of a case, but they all have a few things in common. The prosecutors have to file a document describing the crime they believe you committed, the court has to ensure you know the charges, and the judge has to decide if you will remain out-of-custody and under what conditions. Although these initial steps are sometimes handled quickly and with little effect on the remainder of the case, they can be immensely important. For example, if the prosecutors or investigators have made mistakes in drafting the charges, the judge can dismiss the case completely before it even really begins. McKenzie Scott attorneys have successfully had major cases dismissed by meticulously combing over the charges and understanding the legal complexities each charge creates for prosecutors. Additionally, McKenzie Scott attorneys will tirelessly fight for you to remain out of custody during a criminal case. We understand that even if you lose the case later, staying out-of-custody to defend against the charges can have a major effect on the final outcome. No one should be stuck in jail, unable to handle their affairs and be present for their loved ones, just because they are accused of a crime.

What happens during the investigation and discovery phase of a criminal case?

Regardless of whether you are innocent or guilty, intimate knowledge of the facts is key to a good defense strategy. “Discovery” is the legal process of exchanging records with the other side in a case. In criminal cases, we use it to investigate the prosecution’s case. It is the government’s obligation to prove any charges beyond a reasonable doubt, so we always aggressively search for weaknesses in the evidence – often going to court to demand documents the government is trying to bury or refuse to turn over. Meanwhile, we conduct investigations of our own with trusted, experienced investigators who can help us find evidence and witnesses that law enforcement may not even know exist.

What happens in a criminal case between arrest and trial?

Whether it is necessary to ensure a client’s rights are protected, gain leverage in negotiations, or to keep bad evidence from coming out, the best trial attorneys know that pretrial litigation (and the credible threat of litigation) can give you the upper hand in many cases. McKenzie Scott has earned a reputation for aggressive litigation and motions practice. We know the value of making the government work to prove their case-you have essential, constitutional rights that you are entitled to assert and we work tirelessly to litigate at all stages of your case to ensure your rights are steadfastly protected at each stage of the proceedings.

What happens at a criminal trial?

At trial, the government has to burden of presenting evidence (witnesses and records) to try to prove beyond a reasonable doubt that you committed a crime. The defense has an opportunity to contest their evidence, present evidence of our own, and argue the case to the jury. All twelve jurors must unanimously agree on a verdict, otherwise the case results in a mistrial.

Where other attorneys pick and choose a handful of results to advertise on their websites, we post every trial result online, win lose or draw (with client information redacted). Thankfully, we’ve won a lot more than we have lost over the years, and we believe our results are second-to-none. And by retaining McKenzie Scott, you get the benefit of our trial experience and reputation for success even if your case never goes to trial. Prosecutors know our reputation for aggressively litigating cases before, during, and after trial. No prosecutor wants to be our next victory.

What happens at sentencing?

From the moment someone fears they are under investigation, most people are afraid of a potential criminal sentence. If you are ever convicted of a crime – whether a jury found you guilty or you pled guilty – the potential sentence is probably one of the most stressful and important things in your life. When you’re facing time in prison, at risk of losing time with loved ones, or concerned about your life and liberty, you want to know that you have lawyers who you can trust to fight for the best outcome possible. For those clients who must face sentencing, we always fight to keep clients out of prison, to mitigate the consequences of a conviction, and to help clients navigate our broken American system of incarceration. When prosecutors argue that a person should spend years in prison, we’ve repeatedly succeeded in persuading judges otherwise. We never want to see a client sentenced at all, but when it happens, we tirelessly work to get the best outcome possible.

How do federal criminal sentences and the Federal Sentencing Guidelines work?

The Federal Sentencing Guidelines are the starting point for any federal judge at sentencing. The law requires that the judge properly calculate the applicable Guidelines range before imposing sentence. The Guidelines take information about the offense and information about the criminal history of the defendant and provide a sentencing range measured in months. The base offense level is determined by certain circumstances related to the offense and the criminal history category is determined mostly by the length of prior criminal sentences. The law requires that after calculating the Guidelines, the judge also consider a variety of factors laid out by Congress in 18 U.S.C. § 3553(a). A criminal defense lawyer should be an advocate at sentencing just as she is an advocate during the litigation phase of a case. The sentencing phase of a case involves developing mitigation, conducting investigation, and crafting legal and equitable arguments. Every person deserves individualized advocacy that not only tells the story of the person’s life but also offers evidence-backed alternatives to a custodial sentence. The art of sentencing advocacy is the ability to develop these arguments effectively to receive the outcome that benefits our clients.

What are mandatory minimum federal sentences?

Congress created mandatory minimum sentences that can apply under certain circumstances. When a mandatory minimum sentence applies, the judge cannot sentence a person who has been convicted below that minimum amount of time in custody, with rare exceptions. Mandatory minimum sentences do not apply in every federal case or to every federal crime. Even if a mandatory minimum sentence does apply to the crime, you or your loved one is charged with, a skilled lawyer may be able to negotiate a resolution in the case that does not involve a mandatory minimum sentence. It is also important to remember that if a case does not result in a conviction – meaning the jury does not find guilt and there is no guilty plea- the case does not go to sentencing and the mandatory minimum sentence does not apply. With that said, we understand that facing a mandatory minimum sentence can be extremely overwhelming and can lead to a lot of anxiety and stress. The lawyers at McKenzie Scott are skilled in aggressive advocacy that benefits our clients charged with all types of crimes including those with mandatory minimum penalties.

What is the First Step Act and can it help me?

The First Step Act (FSA) is a federal law passed in 2018. The FSA includes many changes to federal sentencing law aimed at reforming the draconian system of punishment and mass incarceration in America. The FSA includes many provisions that may apply to you or your loved one. The FSA aims to shorten federal prison sentences by expanding the application of a “safety valve” provision that allows people to avoid mandatory minimum sentences. The FSA also expanded the ability to apply for and receive compassionate release from federal prison. There are also parts of the FSA that are aimed at prison reform. The FSA now requires that a person be placed within 500 driving miles of their primary residence. This change ensures that family visitation is prioritized and helps to improve the transition back into the community after release. The FSA also expanded funding for job training and educational programs for people while they are incarcerated. While increasing opportunities for rehabilitative programming, it also added the ability to earn time credits off a sentence. Eligible people in federal prison can earn approximately 10 days of time credits for every 30 days of participation in certain rehabilitative programs. The credits can result in an earlier release date to a halfway house, home confinement, or community supervision. The FSA was a bipartisan effort at criminal justice reform and includes many provisions that may apply to you or your loved one.

What is compassionate release in federal sentencing?

Prior to passage of the FSA, compassionate release in federal sentencing existed, but was very rarely granted. The Federal Bureau of Prisons (BOP) had a lot of control over decisions about compassionate release and used that power in a in a very arbitrary way, denying nearly all compassionate release petitions. Because there was no right of appeal for the denial of compassionate release, people remained in prison despite being good candidates for compassionate release. The FSA changed that.

Under current law, the BOP no longer has the last word. The FSA not only expanded the types of circumstances that can qualify for compassionate release, it also created a right to present a motion for compassionate release to the district court if denied by the BOP. To ensure that compassionate release is a viable option for eligible people, the FSA also created requirements that the BOP notify a person’s family of a terminal diagnosis within 72 hours and the BOP must assist with a compassionate release request if asked to do so by someone who is mentally or physically unable to submit a request on their own.

How do I know if I should appeal?

The trial court does not have the last word in a criminal case. Unless waived, you have a right to appeal both your conviction and sentence. Through the appellate process, a person can challenge decisions made by the trial court or the jury. After losing at trial, many clients feel defeated. Going through the criminal process can exhaust every type of resource. However, it is not usually the time to end the fight. A skilled appellate lawyer is an essential part of the criminal defense team. Appellate lawyers specialize in examining the record from the trial court, doing legal research, and crafting arguments on behalf of clients. At McKenzie Scott, our lawyers are not only skilled trial lawyers, but we are also experienced appellate advocates for our clients. The same talents, experience, and work ethic that make our lawyers successful in trial also make us tenacious appellate advocates for our clients.

How long do I have to appeal a federal criminal sentence?

The most important thing to understand about your right to appeal is that there are filing deadlines and they can come up quickly. In a federal criminal case, the notice of appeal must be filed within 14 days of the entry of judgment in the case or the filing of the government’s notice of appeal. That is a very short timeline. If you have not waived your right to appeal (and sometimes even if you have), you should absolutely discuss with your attorney if there are issues in your case that can be raised on appeal. Missing a deadline in an appeal can defeat your entire case so it is important to ensure that deadlines are met.

What is a habeas petition?

Even if you’ve been convicted and lost your direct appeal, you may still have options. Our court system allows prisoners to challenge their convictions or sentences even after they have lost a direct appeal if their Constitutional rights were violated or they were sentenced in violation of law. If you or a loved one have been unjustly convicted or sentenced for a crime, the experienced attorneys at McKenzie Scott can advise whether you may be able to challenge your conviction in a new way. These types of claims require unique legal expertise and are often subject to strict time limits. We encourage you to consult an attorney without delay if you want to challenge your conviction or sentence through a petition for a writ of habeas corpus.

How long do I have to file a 2255 petition?

A 2255 federal habeas petition must be filed within one year after your federal conviction becomes final. With very limited exceptions, your petition will be dismissed if you miss the filing deadline. Because you do not have a right to counsel in habeas proceedings, no lawyer will be automatically assigned to this case. If you want to file a habeas petition, you must find a lawyer to represent you or you must file it on your own (known as filing “pro se”). Since the deadlines for filing a habeas petition can be very short, if you are interested in finding a lawyer to help you, there is no time to waste.

Can I sue if I’ve been wrongfully convicted?

The answer to this question depends very much on the specific circumstances of your case. It may be possible to recover compensation for a wrongful conviction. The best course of action is to contact a lawyer without delay to ensure that any potential deadlines are not missed. If you were wrongfully convicted and you have questions about what your options are, give our lawyers a call. We can answer your questions and advise you of potential options. Getting advice from experienced lawyers is the best way to put your mind at ease and make important decisions about your life. We encourage you to reach out and discuss the circumstances of your case with us. Our lawyers are uniquely experienced to advise you as we engage in both civil and criminal law. When you are unsure about next steps, it is critical to trust those you turn to for guidance. The lawyers at McKenzie Scott pride ourselves on being the kind of trustworthy advocates our clients need during challenging times.