On Jun 1, 7:11 am, Chris <Electric.Skep...@gmail.com> wrote:
> This post is further to a previous post as a result of which a number
> of people advised that more detail was required before they could
> address my questions.
Chris, I am not a CA lawyer but I used to live there, if that helps. I also read a lot of detective novels and watch classic noir crime thrillers a lot. You may find answers to most of your questions on this plain-English, layperson-oriented site summarizing California criminal procedure, which I found by "Googling" the keywords "speedy trial right California" (or, go to one of the many other sites that pop up on doing a similar search):
http://research.lawyers.com/California/Criminal-Process-in-California.html
That site is run by Lexis/Nexis, one of the largest online legal research providers.
> I'm a writer, and a current project has a subplot in which a man is
> accused of murder. Not being legally trained, I am concerned that what
> I write is correct as far as the legal procedure goes. The following
> are the basic plot points concerning the accusation and its legal
> aspects:
>
> 1. A woman is found by her housekeeper, dead, in her California home.
> A single bullet wound is identified as the cause of death.
Of course, the cops' crime lab reps will show up at the scene and, depending on how the scene initially appears they may dust for fingerprints, check the doors and windows for forced entry, test for presence of any "protein samples" of various kinds (hair, skin flakes, semen) and, if present, try to retrieve bits for DNA testing; look for and retrieve any slugs or shell casings to be found (other than the one still in the victim), and will be given the embedded slug (properly marked and tagged as evidence with a chain of custody) by the coroner when it is retrieved in the autopsy. Then they will try to identify the caliber and try to match the rifling marks on the slug with those of the suspected murder weapon, if and when that is retrieved. And the detectives will try to reconstruct where everyone (perp and victim, and any others present) must have been located, and their relative closeness and posture, based on where and in what position the body was found, the angle of the entrance and exit wounds, the pattern of bloodstains and the presence or absence of any gunpowder residue on the body, walls, or furniture, etc. The autopsy will also rely on various forensic factors such as presence or absence of rigor mortis, gravitational pooling of blood in the body, the extent of decomposition, etc. to determine an approximate time of death (expressed in hours, or days, before the autopsy was performed).
Depennding on where the bullet hit her and its caliber and speed, they can also figure out whether she was killed instantly (e.g. blew her brains out) or merely bled to death over a period of time, with opportunity to dial 9-1-1 or such before she passed out (if the perp hadn't ripped the phones from the wall, or hidden her wireless...)
> 2. Later the same day, police interview the woman's husband.
I assume he was distraught and didn't call his lawyer at that time because he didn't feel he was a suspect and wanted to be cooperative to help them catch his wife's killer.
> 3. Three days later, police arrest the woman's husband, charging him
> with the murder.
You didn't say what the evidence was that connected him to the crime. I won't ask, but note that before the cops can arrest him, in a non-exigent situation as here, they need to have sufficient probable cause to convince a judge to issue a warrant for his arrest. Did hubby have an alibi? If so, did it not check out? Did he have a motive to kill wifey? Did they ever fight or argue violently before? Did he own a gun? Did it match the slug? Did he make possibly incriminating, although innocent, statements in his initial interview? Don't tell us here, but you will need a believable scenario that would make your reader say, "boy, it sure _seems_ like this guy is the one who dun it."
> He calls a lawyer who is with him as the police
> interrogate him.
If the lawyer is smart, he would instruct the husband not to say anything further, even in an effort to clear himself. His statements could provide missing pieces of the puzzle the cops need to e.g. place him near the scene, or show that he has knowledge of certain things, or certain skills or habits that could tie him to the already known evidence and fill in the gaps sufficiently to make a case against him even if he is innocent.
But if this was the "family lawyer" who did their wills or managed their real estate investments, he may not have been too sharp on his criminal defense skills. I don't know how that plays into your plot.
> 4. A few days later, the husband appears at the arraignment, where he
> is formally charged, and enters a plea of not guilty. Bail is granted
> and set at one million dollars.
That's pretty high; it means the family must be fairly wealthy. Not surprising, if they have a housekeeper and a lawyer already on retainer.
> 5. The husband's lawyer organises and pays the husband's bail.
I'm assuming you mean the lawyer, acting as his client's agent, accessed the client's own assets (or friends' or relatives') to do this. No lawyer in his right mind is going to put up his own money as bail for a client. If the client can't afford high bail, the lawyer will ask the court to take that into consideration and set a lower bail, or the client will just have to sit there in jail until trial.
> 6. The husband is released on bail and immediately begins to hunt for
> his wife's killer (the police aren't looking - they believe they have
> the killer (the husband)).
Right, you don't keep investigating if you think you've solved the crime already.
> 7. The husband finds the killer
I won't ask how -- that's probably where a lot of your original creative writing comes in.
> and his lawyer calls in a favour to
> have a police officer present but hidden at a confrontation with the
> killer.
Although the way you put this may serve your plot better, it makes a lot more sense to me that the husband would tell his lawyer what evidence he had found or learned re: identity of the real killer, and then his lawyer would take that information to the police and/or prosecutor above the table, in his role as an advocate for his client, hoping to get the charges dropped. There is no reason to "call in a favour" and have it done surreptitiously by a cop willing to bend the rules. Especially if the husband (and the cops) hope to be able to use the evidence they gather against the real killer at trial to convict him and not get that evidence thrown out as improperly obtained, they will have to scrupulously observe the rules, get proper warrants for taping the conversation, etc. before the confrontation takes place.
Why would the state want to do all this, instead of just going ahead with the sufficient evidence they had against the husband? Probably because once the lawyer tells them what _he_ knows about the real killer, they know the lawyer will bring that stuff up in making his defense case at trial, and will likely raise sufficient reasonable doubt to get the husband acquitted, at which point the cops will have lost the element of surprise they would need to get the last essential bit of evidence (a confession) from the real killer. The cops would cooperate so they don't blow the case.
> The idea is that the husband will get the killer to admit to
> the crime (which the killer will do because it's just his word against
> the husband's).
That does happen sometimes in real life and sounds like a good (if somewhat overused) plot device.
The killer will only do so if it appears to him that it is in the course of a natural conversation with the husband whom I presume is someone who already knows and has a relationship with the killer. If the husband of your victim walks up to you, and this is someone you never met before this incident, and he asks you "Did you kill my wife", would _you_ give him a truthful answer? Even if it's your-word-vs.- his-word as to admissible eviidence, wouldn't the killer be thinking about the risk that the vengeance-seeking hsuband would want to kill the killer as well as the lesser risk he was just wearing a wire for the cops?
> 8. The husband and killer meet, with the police officer concealed. The
> killer admits to the crime, and the police officer leaps up and
> arrests him.
If the cop is close enough to hear what is said, he is too close for his own safety IMO; and besides, resort to that plot element seems to overlook the invention of conveniently small electronic recording devices in about the mid-20th century. It's much more likely IMO that the cops would rig the husband with a wire for his conversation with the killer. But if you still want to make this an unoifficial, under-the-table conspiracy between the husband and the crooked cop, I suppose it would work. Especially if the family lawyer is a not-too-sharp criminal defense guy so that it doesn't occur to him to do this the "right" way.
The only reason I can think of _not_ to jump thru all the right hoops is if hubby/lawyer fear there is some corruption in the police department or the prosecutor's office that would "tip off" the real killer and thereby endanger the "good guys", forcing the "good guys" to bypass officialdom and do this on their own. I mean, we all hear about how the average Joe gets little effort from the cops to investigate a routine mugging, but when a millionairess gets murdered in her own home, the cops generally do a pretty good job of trying to find out who really did it.
> 9. With the killer in custody and his confession on record (as heard
> by the police officer) the police further investigate and confirm that
> the killer really did it.
One would think the cops would investigate further _first_ to confirm whatever evidence it was against hte real killer that the husband's lawyer brought to them, and _then_ try to obtain a confession to cap it off. But I suppose they wouldn't, if you are relying on the underground efforts of the husband and his lawyer's cop buddy to dig this up.
> 10. The District Attorney's office drops all charges against the
> husband.
A happy Hollywood ending. Boffo.
> I have a number of questions about the scenario:
>
> - Are there any glaring errors in the scenario?
Not really, but see above.
> - How long would typically elapse between steps (3) and (4) (ie., the
> arrest and the arraignment)?
The above-cited website indicates a bail hearing generally occurs within 72 hours after arrest in CA, if not sooner.
> - To whom is bail actually paid (as in step (5))?
To the Clerk of Court's cashier's office. If approved by the Court, bail can also be in the form of putting up collateral (e.g. the deed to the house), not just cash. A rich defendant is more likely to do that than to get a paid bail bond since the collateral is returned intact if the defendant keeps his promise to show up for trial under which he is released from pretrial detention, whereas the bail bondsman typically charges a nonrefundable cash fee of 10% or so of the actual bail amount, and then puts up his bond to the court as the collateral to guarantee the defendant's appearance.
> - Until bail is paid (as in step (5)) where would someone charged with
> murder be held? A local police station? An actual jail?
Generally in the lockup at the local police, or in a county jail. State and federal prisons are only for those already convicted and serving a sentence.
> - How long would the husband have to find the killer - that is, how
> long (typically) between his release on bail (on the day of the
> arraignment) and the trial?
The Lexis websdite says CA has a 60-day speedy trial rule, but that can be waived by defendant, which would make the time longer.
> - Is the idea of the husband and his lawyer getting a police officer
> to hide and watch a confession realistic? How else could they
> accomplish the same end (of getting the police to realise that
> somebody else was the killer)?
See my embedded comments above after item 8.
> - When (as in step (10)) the District Attorney's office decides to
> drop the charges after the suspect is arraigned, how is this notified
> to the defendant? Would the DA's office phone his lawyer?
Most likely.
> Or contact
> the defendant himself?
That would be unethical, if he has a lawyer.
> Or would there be a court hearing of some sort
> to dispose of the charges?
Not necessary. If the prosecution decides they don't want to prosecute, that is within their discretion. You may be mixing this up with cases where a _complaining_witness_ (victim) decides she doesn't want to prosecute, but the state wants to go forward anyway. Then, the defense would typically ask for a show cause hearing to dispose of the case on grounds of insufficient evidence to continue to trial, over the prosecution's opposition.
> Many thanks to anyone who can help with any of the above questions :)
Sure, this was fun. Good luck with the book.
--
This posting is for discussion purposes, not professional advice.
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For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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