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Arizona Criminal Defense Attorney Procedure in Detention and Preliminary Hearings

The client of a criminal defense attorney in Arizona is usually brought to federal criminal prosecution by indictment, although occasionally, law enforcement officers will initiate the process through a criminal complaint. For his/her initial appearance before a judge, the client and his criminal defense attorney must be brought before the US Magistrate Judge in the district where the offense is alleged to have occurred, or in the district where the defendant was found and arrested. This must be done without “unnecessary delay,” which is generally within 5 days or less. The magistrate informs the client of his rights and sets the case for bail hearing and preliminary hearing.

The Preliminary Hearing

When a complaint is filed, the client of a criminal defense attorney is granted the right to a preliminary hearing, which must be within 10 days if the defendant is under government custody. The detention hearing is often consolidated with the preliminary hearing, allowing the judge the judicial economy of hearing testimony regarding the weight of the evidence in a single hearing, rather than stretching it out between 2 hearings.

Frequently, a federal indictment will arise out of a case that originally started at the state level. In these cases, a preliminary hearing was already likely held at a state court. The testimonies of these hearings are of critical importance to the criminal defense attorney in defense of the federal indictment. Whenever a criminal complaint is filed at the federal level, defense counsel has a similarly excellent opportunity to gather information that may prove useful to the case.

Detention Hearings

The prosecution may request pretrial detention and a hearing for that purpose in the event of:

  • An alleged crime of violence;
  • An alleged drug offense carrying a potential of 10 or more years in prison;
  • An alleged felony if the defendant has prior violent or drug felonies carrying 10 or more years
  • An alleged crime with a punishment of life imprisonment or death;
  • Cause to consider the defendant a flight risk;
  • Or may obstruct justice.

If the government requests the defendant to remain in custody, it may seek up to a 3 day continuance of the detention hearing. A criminal defense attorney may also request continuance to obtain witnesses or to prepare for the detention hearing. If the prosecution seeks pretrial detention, the defendant is usually held in detention pending the bail hearing. A removal hearing may even precede the detention hearing if the defendant is an illegal alien.

A defense attorney appointed according to the Criminal Justice Act is frequently arranged immediately following the defendant’s appearance before the magistrate judge, with the detention hearing being only a few days away. This time will be spent with the criminal defense attorney speaking to the client and his or her family and discussing options in the steps of the legal process ahead of them.

The felony case stages of the legal process are scheduled according to a time line designed to be expedient while allowing the defense plenty of time to consider its case. Both prosecution and defense need to prepare to make their case. Time is of the essence, as an extensive trial can be considered cruel and unusual punishment.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona criminal defense attorney, visit our site.

Arizona Sex Crimes Lawyer and the Interstate Commerce Element of Child Pornography

A sex crimes lawyer in Arizona defending clients charged with receipt or possession of child pornography faces unique challenges. Aside from the mental health issues their clients may be facing, as well as the visceral reaction judges and juries have to these types of cases, many pornography charges are fraught with damaging admissions, forensic reports from government computer experts, as well as garner draconian penalties. However, a sex crimes lawyer can gain leverage by focusing on the frequently overlooked interstate commerce element of the receipt and possession statutes.

It is important to understand that the interstate commerce defense a sex crimes lawyer can make has nothing to do with the power of Congress under the Constitution interstate commerce clause to criminalize receipt or possession of pornography, as that authority cannot be easily disputed. Rather, the defense can make an argument based on the interstate jurisdictional elements in the statutes themselves.

For example, the prosecution must prove that the pornography crossed state lines. In the case of Internet pornography, proving that is open to debate. It is in this blurred area of distinction that a sex crimes lawyer can use to his advantage.

Congress’s narrow jurisdictional element
It is important to recognize that by requiring that elicit images were moved or transported across state lines, Congress enacted a relatively narrow jurisdictional element that is of interest to the sex crimes lawyer. If Congress was chiefly interested in extending federal authority to prosecute as far as possible, it would have adopted wording that merely required proof that the defendant used “an instrument of interstate commerce” while committing a receipt or possession offense. If this had been the wording, merely downloading the images on the Internet would have been enough to prove the interstate element.

Congress probably realized that most states already had child pornography statutes in place, and only sought to create legislation that covered pornography cases across a large region that involved a multitude of states and jurisdictions where interstate activity is clearly involved.

Nevertheless, regardless of Congress’s intentions, the court is required to interpret and construe judicial elements in a narrow light. When it comes to proving interstate activity, prosecutors often offer no proof that the visual depictions were transmitted onto the defendant’s computer from a different state or other location in the country.

For this very reason, a sex crimes lawyer should focus on the sufficiency of proof related to the interstate elements. Most interstate evidence, or lack of, that is offered by the government is typical. In more cases than not, the shaky evidence won’t stand up under scrutiny in court.

The challenges of a sex crime lawyer in Arizona are great. Often, there is little to work with as the evidence presented can be quite conclusive. In addition to the stigmatized nature of sex crimes, the client faces increased prejudice from the jury as well as the bench. It is only in the interstate commerce clause that an attorney gets much leverage to give his client any favor. By hiring a lawyer specialized in sex crimes and the unique issues involved, a client can get a better judgment from the court that results in a more desired outcome.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona sex crimes lawyer, visit our site.

How an Arizona Sex Crimes Attorney Client Can Be Affected by the Adam Walsh Act

Ask any sex crimes attorney in Arizona. The Adam Walsh Act, enacted in 2006, is the most complex, progressive and punitive sex offender law ever enacted. It was done in response to the public outcry as well as political outcry over sexual offenders and the threat they present to society. The law was grounded in conception by several noteworthy child sexual homicides, and in fact, names a handful of these children. In essence, the statute enhances penalties for already existing sexual federal offenses as well as creates new federal sexual offenses that the client of a sex crimes attorney may be charged with.

Most importantly, the act establishes the Sexual Offender Registration and Notification Act, creating a national registry of sexual offenders that law enforcement officers may use to access information about sexual offenders in order to efficiently track them throughout the country. The law delineates risk levels for community registration and notification on a 3 tiered system that is offense based rather than risk based.

Essentially, the AWA requires stricter juvenile sexual offender notification elements that can conflict with the rehabilitative process of the client of a sex crimes attorney. The law also restricts the ability of a sex crimes attorney to access evidence regarding computer pornography crimes, which can affect their ability to prepare for trial.

AWA Sexual Offender Civil Commitment Statute

The AWA also created the Jimmy Ryce Civil Commitment Program that established civil commitment procedures for federal sexual offenders. This may be in fact the most castigating feature of the law, considering the reality of life commitment for some sexual offenders. The commitment clause had 2 primary objectives: assist funding for states that don’t have such legislation, and mandate the civil commitment of sexually dangerous federal offenders.

About 20 states entertain civil commitment statutes to confine sexually violent predators. Many states reject such legislation, primarily for funding reasons. The AWA provides grants for states to meet these financial needs.

AWA Limitations

The AWA managed to leave many areas unresolved, much to the frustration of many a sex crimes attorney in Arizona. It failed to establish a standard or burden of proof for risk to reoffend and does not permit a jury trial. The law does not conclude whether the respondent has the right to remain silent, nor does it compel him to participate in a court ordered examination. It also does not provide for a provision that compromises the possibility that disclosures about sex offending behaviors during treatment will not be used against the offender by the government to procure more commitment.

The AWA also fails to resolve discovery procedures related to the client of a sex crimes lawyer.

Most civil statutes include a “likely to reoffend” component. The AWA fails to have such a distinction. Instead, the law incorporates a volitional mandate. The definition only calls for a “serious difficulty restraining from sexually violent conduct or sexual molestation if released.”

The AWA is a harsh law that can impose significant confinements on the client of a sex crimes lawyer in Arizona. Most importantly, it presents roadblocks in the road to rehabilitation. Punishment becomes the solution while rehabilitation becomes an impossibility.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona sex crimes attorney, visit our site.

The Advantage of a White Collar Attorney in Arizona

Ask any white collar attorney in Arizona. Ever since the Enron Scandal, prosecutors have become more sensitive to white collar crimes and have begun to prosecute them more vehemently. While your average district attorney may not prosecute cases as complex and far reaching as the Enron debacle, even straight forward white collar cases can present defense challenges for the white collar attorney.

While public defenders and private defense firms may cover a broad spectrum of crimes, the experience of a white collar attorney is dramatically different from that of any other. The defense counsel are often overwhelmed by the amount of paperwork a prosecutor can produce, especially if the counsel typically deals with narcotics, violent crime or other criminal specialties. Ideally, it’s best to go with a white collar attorney who knows the ins and outs of white collar criminal cases and can handle the sheer amount of paperwork that’s involved.

A lack of statutory and case law guidance on white collar crimes issues in regards to discovery matters  presents considerable challenges to both prosecutor and white collar attorney alike. Researching federal cases law relating to white collar criminal discovery gives judges guidance at the state level. While state case law if preferable, a white collar attorney has the opportunity to educate the judiciary on discovery issues unique to white collar crime, as the judiciary may be willing to incorporate federal case law in their decisions, particularly that requiring prosecutors to disclose the documents they intend to use during trial.


How a Good White Collar Lawyer in Arizona Can Leverage “Puffery”

The recent economic roller coaster face experienced by many corporations around the world has resulted in an unprecedented numbers of people in need of a white collar lawyer in Arizona. As the director of the FBI confirmed last fall, 24 large financial institutions have been investigated for some type of alleged fraud. Whether or not these investigations will result in a filing of charges, it is clear that the current financial crisis will bring about a wave of violations and civil suits alleging violations of the Security Exchange Act of 1934 based on purported material misstatements about a public company’s performance. These companies will soon become the clients of a white collar lawyer.

While these new cases may be bigger and have a higher profile than cases in the past, the legal issues are no different than those faced by any case involving a white collar lawyer. Most of the current cases center themselves around classic securities fraud. So while they may be bigger and more extensive, they involve the same basic issues as any other white collar crime.

A white collar defense lawyer in Arizona is likely to argue that the alleged statements were in fact not material, and therefore cannot form the basis of a legal liability. What counts as a material statement? Statements are considered material when there is a substantial likelihood that a reasonable shareholder would consider the matter relevant enough to affect his or her vote. (more…)

DUI Attorney Arizona Gets DUI Case Dismissed Due to a Miranda Rights Violation

According to court records, DUI Attorney Arizona David Michael Cantor’s office was able to convince a Globe Regional Justice Court judge to dismiss a DUI case due to the officer’s improper reading of the clients Miranda rights.

In the case of State v. Gaona (Globe Regional Justice Court Case No. TR2008002096) Gaona was arrested for an alleged DUI violation. Gaona’s original stop was due to his license plate light being burned out. He participated in only one field sobriety test, on which he performed well, and the officer administered an eye test, which he was not certified to administer. Gaona was arrested and was not told that he had the Constitutional right to speak to an attorney, which is standard in all Miranda rights readings.

At the hearing the officer never identified Gaona in court as the person who he had stopped. When the State was finished presenting their evidence, an associate of DUI Attorney Arizona David Michael Cantor made a Motion to Dismiss the case based on lack of identification and improper administration of Miranda rights. The judge agreed and the entire case was dismissed.

“This is why it is important to make sure that the prosecutors and the police officers check every single box when dealing with a defendant’s rights,” said Arizona DUI Attorney David Cantor. “In this case they failed to do so and as a result we were able to get Mr. Gaona’s case dismissed.”

DM Cantor enjoy an excellent reputation as DUI Attorneys in Arizona, and throughout the Legal Community because of their aggressiveness, integrity, honesty, and professionalism. For more information about DM Cantor visit DUI Attorney Arizona.

About DM Cantor

DM Cantor feature criminal defense attorneys in Arizona who are ready to represent you. As Arizona’s premier defense lawyer, David Michael Cantor defends DUI/ DWI cases, vehicular crimes, homicide, drug and sex offenses, white collar and property crimes. David Michael Cantor is AV Rated – the highest rating possible – and was voted a Top 100 trial lawyer. David Michael Cantor has been interviewed and has appeared on Inside Edition, the CBS Morning Show, Good Morning America, CNN Prime News, Hannitty and Combs, and every local news channel including Univision. In addition, his cases have been covered by CNN, MSNBC, and even Howard Stern.

Hot to Spot a Good Assault Defense Lawyer in Arizona

A good assault defense lawyer in Arizona can make all the difference in winning your case. Knowing how to choose the right defense team and use them to their fullest potential can make or break your case. What should you look for in an assault defense lawyer?

When to investigate
Knowing the best time to investigate can be just as important as the investigation itself. A good assault defense lawyer realizes that the best time conduct investigations is always pretrial. It is unlikely you’ll be able to present new facts as evidence during post conviction proceedings. Although new evidence can sometimes be accepted, this only happens in the rarest of cases.

It is very difficult to obtain relief when an investigation is not undertaken by an assault defense lawyer until post conviction. Even in cases where exceptional evidence of innocence is uncovered, it is not uncommon for the court to refuse to grant relief.

When an assault defense lawyer in Arizona launches a comprehensive investigation at the pretrial stage, all evidence can be presented to the jury to evaluate. This puts pressure on the prosecution during the initial trial, as jurors must return a verdict for the defense if they have reasonable doubts. After conviction, the court essentially turns against the individual, as he has already been proven guilty and innocence is no longer an issue of debate. They must prove their innocence in the narrow confines of the legal system.

Pretrial presents the best opportunities for freedom. The pretrial investigation plays a critical role in establishing a good defense that can lead to an innocent verdict.

The personality of the defense
While there are assault defense lawyers that can handle a wide range of legal scenarios, generally they tend to specialize in the particular line of questioning that they are good at. If your case involves questioning recalcitrant witnesses, an investigator that works well with people is essential. A non-threatening open conversation is the best way to engage information, putting the witness as ease so that they may feel free to share their point of view.

Often, it’s the safe comfortable approach that can elicit the information you need from a witness. The personality of an assault defense lawyer helps to set the tone.

Importance of strong organizational skills and knowledge of the law
A valuable assault lawyer not only finds and interviews other witnesses, acting as a fact finder, but also provides a detailed comprehensive review of the case as well as brainstorms defense strategies. He or she should have the legal savvy and talent to become an active participant in strategy meetings, becoming an active and integral component of the defense team. Strategy as it applies to law is what we’re talking about here. A good lawyer can apply knowledge of the law in a clear case strategy that works for the best outcome of his or her client.

The best assault defense lawyer in Arizona is friendly enough to put the court and witnesses at ease, organized and knowledgeable in the application of law to develop a legal strategy, and have the versatility to pull the plan off. Look for these qualities in your search for legal advice.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona assault defense lawyer, visit our site.

An Arizona Assault Attorney Gains Leverage by Questioning Firearms Identification Evidence

Across the board challenges to the scientific nature and admissibility of firearms and tool mark identification are important leverage tools for the assault attorney in Arizona. Prosecutor bench notes of the firearms and tool marks examiner should always be obtained and scrutinized down to the last detail in every case. In many cases, this evidence can enable an assault attorney to argue that even if firearms and tool mark identifications are not per se inadmissible; the particular identifications in the particular case should be excluded because they do not conform to the standards of the field.

Recent changes in the legal landscape make such challenges by an assault attorney substantially easier. Recent court decisions have taken major steps towards recognizing the inherent scientific problems and excluding firearms and tool marks evidence. The court has recognized in many instances that ballistic examination lacks the rigors of science, suffering from greater uncertainties than other types of criminal investigation. The court has argued that suggesting a ballistics expert can conclusively link a particular bullet to a particular gun with a reasonable degree of certainty directly misleads the jury. Ballistics statements must now conclude the opinion, “more likely than not,” but nothing that suggests anything more certain than that.

In 2008, the National Research Council Committee to Assess the Feasibility, Accuracy, and Technical Capability of a National Ballistics Database provided a report that substantially boosts the defense challenges available to an assault attorney. The committee’s mandate out of necessity precluded it from evaluating the admissibility of firearms identification evidence. Nevertheless, the committee did conclude that there are serious scientific problems in both the underlining premises of firearms and tool mark identification and the methods firearms and tool mark examiners use to make identifications.

One judge even went so far as to note that the “courts have been understandably gun shy about questioning the reliability of firearm identification evidence. Storm clouds, however, are gathering.” It’s this very shadow of doubt that can be of great use to an assault attorney.

What is firearms and tool mark identification?
Firearms identification is often confused with ballistics, which deals with the motions that firearms impart to projectiles. By contrast, tool mark identification aims to identify particular tools, such as a gun barrel or bolt cutter, as the unique source of marks on crime scene evidence, such as a bullet or piece of fence. A subspecies of tool mark identification, firearms identification deals with the tool marks that bullets, cartridge cases and shot-shell components acquire by being fired and that cartridge cases and shot-shells acquire through the action of the firearm.

The question is whether or not it can be determined that only one unique tool produced the marks, or if they could have been produced by a similar tool. This question is of great use to the assault attorney.

As the courts question the credibility of firemarks identification evidence, an assault attorney in Arizona has a good deal of tools at his or her disposal to keep such evidence out of the courtroom. All evidence related to the use of the weapon must be scrutinized for discrepancies. Question the validity of such evidence in court with the latest scientific data. Any doubt that can be inserted into the prosecution’s evidence can greatly help the accused, perhaps resulting in a dismissal of all charges.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona assault attorney, visit our site.

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