Post-Arrest FAQ: Know the Courts, Occupy the Courts

by Chris O’Connor and Stu Sugarman

Many resources are available to explain your constitutional rights when you are facing arrest. But what happens after you have been arrested? The Occupier recently asked lawyers Chris O’Connor and Stu Sugarman to answer some “Frequently Asked Questions”.

Arraign-what?

An arraignment is the first hearing in many criminal and violation-level cases. It is a time when a defendant is informed of the charges, told of their rights, and enters an initial plea to any charges. While the underlying constitutional provisions and statutes are the same throughout Oregon, actual courtroom practices and procedures vary by, and within, counties, as well as from judge to judge. In criminal cases, arraignment is also an opportunity to figure out if you get (or need) a lawyer and who that lawyer will be. In order to lessen anxiety and and make better decisions, anyone contemplating an arrestable action should understand arraignment and how they may be treated during the initial arraignment process.

Why Are There Arraignment Hearings?

The Oregon Constitution guarantees that a person accused of a crime shall be informed of “the nature and cause” of the accusations against them. In order to carry out this constitutional mandate, the Oregon Legislature has instructed through statute that “[t]he arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and endorsements thereon, including the list of witnesses endorsed on it or appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to the charge.”

To put things in more common language, the Oregon Constitution requires that you be told exactly which laws you are supposed to have violated and what actions you took to violate those laws. In order to fulfill this constitutional requirement, the legislature has instructed the court to:

1. Read you the charges–unless you or your lawyer asks them to skip the reading.

2. Give you a written copy of the charges, including information about who signed the charges (either an officer or district attorney, depending on the type of case), as well as the witnesses who testified at the grand jury (if the indictment is a felony).

3. Ask you how you plea.

if you are charged with a misdemeanor or a felony, the arraignment hearing is typically the time when you can apply for a court-appointed attorney.

Heck Yeah, I Want A Lawyer! How Do I Get One?

There are three main ways you can end up with a lawyer representing you.

1. If you are charged with a felony or misdemeanor you can apply for court-appointed counsel. You will need to provide financial information about your assets, employment, income and debts (or lack thereof). If you qualify, you will be appointed an attorney working under court contract. Meaning: the court pays the lawyer to work for you for free. Be aware that a $20 application fee may apply, and, if you qualify with some ability to pay, you might also be on the hook for several hundred dollars in fees.

2. You can hire your own lawyer on any kind of case.

3. Some lawyers do pro bono work and may represent you for free, even if the court has not appointed an attorney to you. If you’re a May Day protester, have gone through arraignment, and want a lawyer to help you with violation-level charges, contact Stu Sugarman, 503.944.9779. Stu will match folks up with the six lawyers (while supplies last!) who have volunteered to help May Day protesters. You are also more than welcome to attend the protester law class, every Friday from 5:30 to 7:00 pm at Stu’s office, 838 SW First Avenue, Suite 500 in Portland.

So What Specifically Happens In Multnomah County Arraignment Courts? What Do I Need To Do EXACTLY?

1. Go to the Justice Center at the time given on your citation or release paperwork.

2. Check in at the window at the end of the hallway to let them know you are present. They will tell you if the case is a felony, misdemeanor, violation or ‘no-complaint’. If you are charged with a misdemeanor or felony you can apply for a court-appointed attorney.

3. They will tell you to go either to Courtroom 3 (felonies) or Courtroom 4 (misdemeanors).

4. Go to the courtroom and grab a seat.

5. If your case is ‘no-complaint’ed you can get information from the sheriff’s deputy, or deputy DA or public defender n the courtroom.

6. If you have been charged with something, wait around. It may feel like forever– proceedings inevitably start later than you’d like and take longer than you hoped. Consider it an opportunity to watch other cases and learn how the courtroom works.

7. Eventually they will call your name. Go to the front of the courtroom and talk to the judge (and maybe the public defender).

8. If you are going to have a court appointed attorney, get the name of the lawyer and their contact information (usually a business card)

9. Be sure you have a written copy of the charges.

10. Verify that it is your true full name in the top left portion of the charging document.

11. Tell the judge or the lawyer if you do or do not want the charges read to you in full.

12. If the case is a misdemeanor or felony, enter a plea of not guilty and get further court dates. (See below for more information on felony or misdemeanor charges.)

13. If the case is a violation, decide if you want to plead guilty on the spot and take a fine, or demand a trial date to challenge the charges. In some cases you can go to Community Court to enter a guilty plea on a different day (see below).

Um… My Charges Don’t Match What The Cop/The Jail/The Newspaper/The District Attorney Initially Stated. What Gives?

When a person is arrested, the arresting police officer or Sheriff’s deputy may file particular charges. These charges might be listed on a police report, noted on a citation to appear, or appear on the jail booking logs. At that point the District Attorney’s office will review the officer reports and decide how to proceed. In theory, they are determining whether they think it is more likely than not a particular crime was committed, but in practice they are evaluating matters to determine whether they can prove their case at trial. Based on this evaluation they may add or subtract charges, or reduce the case to a lower charge.

Some felony cases, such as heroin or cocaine possession, are frequently reduced to misdemeanors. And many misdemeanor cases are reduced to violation-level offenses. The DA’s office has its own policies about charge reductions, often based on the nature of the charge and a person’s prior criminal and arrest history.

So What Happens If I Am Charged With A Violation?

A violation (also referred to as an ‘offense’ or, more commonly, ‘a ticket’) is an accusation that the accused violated some law, the maximum penalty for which is a fine. No jail time is possible.

At a violation arraignment you do not always get the assistance of an attorney, though sometimes the on-duty public defender may help you out. The judge will inform you of the charge and advise you of the possible maximum fine. The judge may ask the DA’s representative what fine the DA seeks. The judge will give you a list of your options and ask how you plead.

On a violation you can always plead guilty (“I did what I am accused of doing”) or no contest (“I’m not saying I did anything wrong, but I expect a judge might later find I did it and I’d rather skip to the penalty part”). If you plead guilty or no contest, the court will impose a penalty fine and give you instructions on how to pay it.

Some cases are eligible for Community Court, a program in which you can perform community service or access social services. Upon completion of your assignment, the case will either be dismissed or result in a guilty finding without any further penalties (depending on your prior history). You will know the ultimate result before you sign up for Community Court. If you choose to proceed, be prepared to be given a future date to return to the Justice Center (Courtroom 1). You will never get to enter Community Court the same day as your arraignment.

You can always plead ‘Not Guilty’ to a violation and demand a trial. The court will gather some contact information for you and give you a date and time to return to the courthouse for your trial.

Many Occupy-related violations are being heard on the ‘Occupy Docket’ by Judge Albrecht. If you plead not guilty on an Occupy case you almost certainly would want to go to that docket, because there are many common legal arguments and motions being made. You may be able to access the services of volunteer legal counsel for these cases. Again, contact Stu Sugarman, 503.944.9779.

What Happens If I Am Charged With A Misdemeanor?

A misdemeanor is an allegation that the accused has violated a statute, the maximum penalty for which is one year or less in jail. In Oregon, a DA can initiate this charge on their own based on police reports, or their belief that you have committed a misdemeanor crime.

In Multnomah County, misdemeanor arraignments are held in Courtroom 4 of the Justice Center.

The first issue in a misdemeanor arraignment is the question of who your attorney is going to be. There are three main options:

1. You can apply for court appointed counsel if you cannot afford your own. When you check in at the Justice Center, the staff will offer you a chance to fill out a counsel request. In the courtroom the public defender will tell the judge which attorney is available for your case and give you the attorney’s contact information.

2. You can hire your own attorney. If you have an attorney prior to arraignment, that attorney may be able to appear for you. If you arrive at the arraignment without an attorney but intend to hire one soon, you may request more time and the court will give you a future date (within 1 to 3 weeks) to return with your attorney.

3. You can represent yourself. The court will require you to fill out a form stating that you understand the risks you are taking in doing so.

After the attorney issue is addressed, the DA will hand you a copy of the charges. The court will verify that your true name appears on the document and then you will either be read the charges aloud, or waive that right and read them later on with your attorney.

In a misdemeanor case, the public defender will assist you with the arraignment and make sure that you enter a ‘not guilty’ plea. The court will not accept a guilty plea until you have had time to review your case and the police reports with your attorney.

The court may address release conditions. If you are in custody at your arraignment, you can ask for various kinds of release. If you are out of custody at your arraignment, the judge may impose additional conditions of your release, such as a no contact order with complaining witnesses or a no intoxicants condition.

The court will give you a later date and time to appear at the courthouse to address the charges.

What Happens If I Am Charged With A Felony?

A felony charge carries a maximum penalty of more than a year in jail or prison.

The basic procedure is similar to a misdemeanor case, except that felony arraignments are held in Courtroom 3 of the Justice Center. One major difference is that the District Attorney cannot charge you with a felony on their own. An initial arraignment on a felony charge is often on what is called a District Attorney’s ‘Information’–a temporary document that informs you of the charges and possibly helps hold you in custody. The information is given to you at the initial arraignment and a follow up date in the Justice Center will be set within 14 days for you to return to court and learn of the ultimate charges.

In the meantime, the DA will go to the body known as the Grand Jury that will review all allegations, hear from limited witnesses and secretly decide if it is more likely than not that the case should go to a regular trial. The Grand Jury will then either issue an indictment formally charging you with a felony offense or report ‘No True Bill’–meaning that no felony case will go forward. Be aware that your charges can change in the indictment. Even if the Grand Jury does not indict on felony charges, the DA may still file misdemeanor charges against you. Be sure you understand which of your charges are felonies and which are misdemeanors.

I Was Expecting To Get Charged With Something, But The Person At The Justice Center Said ‘No-Complaint’ – What’s That?

A no-complaint occurs when the DA reviews the material brought in by the officer that arrested or cited you and decides not to press any charges against you at all. This can be because they believe there is a flaw in the case, or because they don’t believe the acts described by the officer meet the criminal statute. This may also occurs when the DA has failed, for whatever reason, to review any of the material. A no-complaint does not guarantee that you will not be charged in the future, so remember to be cautious when talking about the case.

Typically you learn you have a no-complaint case at the check-in window. If you want to be sure, proceed to the courtroom, where eventually the deputy DA will read a list of no-complaints. The deputy DA or the Sheriff’s office employee will hand out a sheet of paper with information about the no-complaint process and suggest you check in at the phone number provided to be sure there isn’t a future case filed against you.

(Please note that in the event of mass arrest or large numbers of arraignments, the DA may have difficulty reviewing all of the material. This paperwork bottleneck may result in a no-complaint charge, that, upon review, will later develop into charges against you.)

What If I Am In Custody? How Do All Of These Things Change If I Am In Jail?

A person can only be held in jail under misdemeanor or felony charges. Many people are released at arraignment, when the DA announces a charge is being reduced. But it’s possible that other charges might result in a person being held in jail, even if a new case is reduced at arraignment. For instance, a person might have a hold from another jurisdiction, or because of a separate matter (say, they are being held on a probation violation warrant). In these instances they may not actually be eligible for release.

The major difference between arraignment in and out of custody is that you do not have to apply for an attorney in jail. If you are being held, the court will give you an attorney if you want one. You may request one at the arraignment, though many judges will automatically assign one to you.

The second major difference is that the release discussion becomes much more important. The public defender will assist you in asking for release. The attorney will want to discuss your release and will only have a minute or two to get information from you. Your friends or family in the courtroom can also assist in getting you released. The court will have prepared a ‘recog’ sheet (recognizance report) when you were first interviewed in the jail.

There are several ways of getting out of custody if you are being held on a misdemeanor or felony case:

1. Recognizance. You can get released on your own recognizance either by the judge at arraignment, or prior to arraignment by the recognizance officer in the jail.

2. Bail. You can pay 10% of the total bail. You will get most of that 10% back if you show up for your remaining court dates. If you fail to show up, you will owe 100% of the bail. Another person can bail someone out of jail, but often it is simpler to put the money on the jailed person’s account so they can ‘self-bail’. That way only the arrested person is on the hook for the full amount.

3. Released to report to Pretrial Release Services (known as PRS). Sometimes at an arraignment the court will release a person to report that day or the next day to the Pretrial Services Program. The Pretrial office monitors people until the trial date. Monitoring may be as simple as a requirement to check in by phone once or twice a week, or mean home visits and daily in-person reporting for very serious cases.

4. In some felonies or misdemeanors (such as cases of alleged domestic violence) the court will say ‘PRS if accepted,’ which means that the PRS officers will interview the person in jail and follow up their references and then release the person if they believe circumstances warrant it. This process can take up to a week or two to implement.

5. In other, generally very serious, charges, the court will order ‘PRS interview only’ which means that the PRS officers will conduct an investigation and set another hearing for the results of the release investigation. The accused can add witnesses and provide the court additional information for use in deciding release.

6. In some cases, the jail itself will ‘matrix’ people, which means some will be released due to overcrowding. Matrixing works in mysterious ways, and though it usually applies to low level offenses, sometimes those with high bail or several open cases gain release. If this happens to you, stay in touch with your attorney and be aware of your next court date.

How Can We Help A Friend At Her Arraignment?

Moral support is always helpful for anyone in court. You can do a few practical things as well.

1. Bail them out and support their compliance with any release requirements. It is always easier to make better decisions about a criminal case when out of custody. In some cases it can be quite helpful to have friends and family in the courtroom to show the court that the person has community ties, a place to reside, and supporters to appear at the eventual trial or hearing.

2. Help them get to the arraignment and provide practical and useful advice.

3. Advise them to deal only with procedural matters rather than the facts of the case.

This Is A Great Time To Tell The Court Exactly What Happened, Right?

Absolutely not. No actual facts or issues involved in your case will not, and should not, be discussed at an arraignment court unless you are pleading guilty to a violation. It is best not to say anything about your case. The arraignment hearing is being recorded and the courtroom DA will certainly note if you are making any statements that can be used against you at the eventual trial (“What? An Assault? I didn’t hit the cop that hard at all, just kinda slapped ’em!” would just the sort of statement a DA would happily play for the jury a month or two down the road). Please exercise your right to remain silent and focus on the procedural matters of receiving the charges, arranging attorney matters and securing your next court date.

This Is All Extremely Depressing. Please Tell Me Something Positive About This Arraignment Process.

You get to control some part of this. You can make the court do their complete job by forcing them to read you the entire charging document and your rights. if you are charged with a misdemeanor or felony, you can demand a lawyer at state expense. Your not-guilty plea will ultimately impel the state to bring in witnesses and conduct a trial on the allegation(s) against you.

No facts will be decided at an arraignment. The entire point of the procedural rights enshrined in the Oregon and US Constitutions is to slow down the state’s ability to label and penalize you with a criminal conviction. You can demand and force the court and the state to respect your human and civil rights of due process. The arraignment is the beginning of the case and no judgment can be made against you without an opportunity for a fight.