Author Archives: alance

The Attorney General, Sentencing Reform, and What Went Wrong with Edward Alemany

Sunday at the American Bar Association’s annual meeting in San Francisco, Attorney General Eric Holder announced his plans to reform Justice Department sentencing policies in an effort to stem the epidemic of mass incarceration. Among his proposals were avoiding minimum mandatory prison sentences for nonviolent drug offenders without gang or cartel affiliations, considering release of individuals who are not a danger to the public, and increasing drug treatment and diversion programs as alternatives to incarceration.

I first heard the Attorney General speak of his intentions last year at a JFK Library forum, when a member of the audience asked him what he hoped his legacy would be as Attorney General. He answered easily and with certainty: “prison reform.” This caught my attention. As a prosecutor in Miami, I saw firsthand the effects of the “War on Drugs”:  defendants with pages upon pages of priors completely devoid of violent crimes; directives from my chiefs to offer credit time served (usually the one night spent in jail before appearing before the judge) for a defendant’s first few drug possession offenses before increasing jail time in increments for subsequent arrests (so they knew We Were Serious); and courtroom dockets so overwhelmed with nonviolent drug cases that a substitute judge would periodically preside in our courtroom to offer one-day-only lowball pleas in a “plea blitz”, which shielded the regular judge from possible  accusations of vindictive sentencing if a defendant was “launched” following a conviction at trial.

I also saw defendants request to serve straight jail time instead of probation pleas with conditions to attend Narcotics Anonymous, undergo drug testing, or complete community service. The threat of a probation violation was too great in the face of conditions they knew would be difficult for them to complete.

And yet, the public has overwhelmingly embraced the idea that being “tough on crime” is synonymous with incarceration, which is why I found the Attorney General’s announcement Sunday incredibly bold and refreshing. Alternative sentencing and drug courts remain among the first programs sacrificed to budget cuts, and the topic stays out of the political conversation – in the most recent election cycle, neither President Obama nor Mitt Romney addressed the War on Drugs in their campaigns. Only the third party debate discussed the need for reform.

Meanwhile, last month in South Boston, Edward Alemany, alleged to have murdered South Boston resident Amy Lord as she left her home in broad daylight, was revealed to have been a suspect in an attack on another young woman last September. Everyone is asking how he could have remained in the community even then given his lengthy (and at times violent) priors, and why the assigned detective failed to return calls to the crime lab regarding evidence in the September attack. Taken in isolation, it certainly sounds like the detective was the problem. But the bigger question is, why did he abandon the investigation? Could it be that most such investigations lead to a dead end, and work on cases that don’t get solved is not valued by the police department? When the police get more recognition for making a sweep of drug arrests instead of hunting down evidence in investigation of violent crimes, and the glut of those drug arrests prevent prosecutors from properly evaluating cases, human error can be just a contributing factor in a broken system.

The Attorney General said that “we cannot simply prosecute or incarcerate our way to becoming a safer nation.” Minimum mandatory sentences and similar laws proclaimed as “tough on crime” may be exceedingly harsh for an individual offense, but do nothing to deter crime on a wider level and obscure the true threats to the community.

The Attorney General’s proposals are needed measures to allocate resources away from incarceration based on fear, allowing for more focus on known violent offenders – the ones who leave their driver’s license behind at the scenes of their crimes.

What To Do If a Restraining Order is Filed Against You

If you have been served with notice that a restraining order or abuse prevention order has been filed against you, often the court has issued a temporary order on an emergency basis, and the notice you received is for a hearing to extend the restraining order for a full year. Although the issuance of a restraining order is civil in nature, violation of a restraining order is a criminal offense that can result in jail time. An experienced restraining order attorney can stop this momentum by presenting your case in court with the benefit of every advantage available to you under the law.

As the restraining order extension hearing is usually scheduled for very shortly after the issuance of the temporary order, it is critical to contact an attorney immediately to secure representation and allow your attorney time to prepare your case.

You should not try to defend yourself at a restraining order hearing without an attorney knowledgeable about restraining order law. In many cases, the plaintiff’s reasons for filing for a restraining order do not meet the required statutory grounds. Plaintiffs often file restraining orders under pressure from family and friends, because they’ve heard about restraining orders on TV or in the news, or to gain an advantage in divorce proceedings. Having an experienced restraining order attorney cross-examine the plaintiff to elicit the shortcomings in his or her case can be the difference between the judge allowing the temporary restraining order to expire, or issuing a permanent order for a full year. And if the plaintiff has filed for the restraining order for improper reasons, often he or she will not hesitate to falsely accuse you of violating the restraining order, subjecting you to the possibility of imprisonment.

It is also important to be represented by an attorney so that you do not need to speak to the judge or the plaintiff yourself. This avoids the risk that you could unknowingly say something that will make the judge more likely to issue the restraining order, and that your participation in the proceedings may cause the plaintiff to become upset and seem more sympathetic. Your attorney will be able to speak on your behalf, relay your side of the story to the judge, and manage the plaintiff’s portrayal of what happened.

As a family law and criminal defense attorney and former criminal prosecutor, I have extensive experience conducting restraining order hearings. The fact that someone you know has filed for a restraining order against you does not mean that the judge will extend the temporary order after you appear in court to defend against the plaintiff’s accusations. The consequences of a permanent restraining order are severe, as it will appear on your criminal record, can be used as evidence against you in probate court matters such as child custody determinations, and the violation of a restraining order can result in imprisonment. Do not miss the opportunity to prevent the legal repercussions from escalating. Contact an experienced restraining order attorney who will protect your rights.

What Will Happen In My Family Law Case?

Many of my family law clients quite understandably ask whether they will “win” or “lose” their case. Fortunately, family law cases are different than lawsuits. The court’s objective is to approve a plan that accounts for the interests of each family member. Where ongoing family relationships are involved, often the better question is how closely the court-approved agreement or court order will resemble what you ideally would like to happen.

Getting answers to the following questions are essential for an effective attorney-client relationship:

1.     How realistic are your expectations for the outcome? I explain the legal standards the court will apply in evaluating my clients’ case and how the facts of their case can support their position. Often, the points that will help you the most in court are not the ones you expect. Developing a plan for presenting your case and explaining the range of possible outcomes are crucial aspects of attorney-client communication.

2.     What evidence can corroborate your position? Family court judges hear disputes between family members all day, every day. They don’t know the individuals involved, so evidence supporting what you say makes a huge difference. I advise my clients as to what evidence to gather, such as emails and other correspondence, financial documents, police reports, and phone records.

3.     What resources would you like to employ in the investigation and preparation of your case? An investigator or expert witness may be able to add valuable evidence and testimony to your case.  While this will come at additional expense, the time and effort expended in family law cases is an investment in your future. Once the issue has been litigated, often the court requires evidence of a “change in the circumstances” to reconsider previous decisions.
Zealous legal representation and cooperation between you and your attorney should happen from your first meeting. Attorney-client communication is critical to setting expectations for the course of the case, which will guide the investigation, preparation, and presentation of your case in court.