Right to a Fair Trial, with Exceptions

The right to a fair trial, is a fundamental right guaranteed by the United States Constitution under the Sixth Amendment.  This right is extended to states through the Fourteenth Amendment.  In Missouri, Article I, Section 18(a) of the Missouri Constitution applies to this right.

Although this right is “guaranteed”, there are restrictions and exceptions, depending on the circumstances.  In essence, there are no absolutes.  These rights include:

  • To Appear and Defend in Person or By Counsel
  • Notice of “Proper/Valid” Charges
  • “Effective” Assistance of Counsel:  Strickland v. Washington, 466 U.S. 668 (1984), is the case establishing the standard used when an accused has received inadequate performance by his/her counsel.
  • Speedy Trial
    1.   See Barker v. Wingo, 407 U.S. 514 (1972)
    2.   Strunk v. U.S., 412 U.S. 434 (1973)
    3.   State v. Kirksey, 713 S.W.2d 841 (Mo. App. 1986)
      Courts look at the following factors to determine if the right to a speedy trial has been violated:

      1. Length of the delay
      2. Reason for the delay
      3. Defendant’s assertion to his right to a speedy trial
      4. Prejudice to the defendant resulting from the delay
  • Public Trial  (not always guaranteed, Sheppard v. Maxwell, 384 U.S. 333 (1966)
  • Right to a Trial
    1. 6 or More – Unanimous Verdict
    2. Impartial
      1. Unbiased jurors
      2. Fair cross-section of the community
      3. Jury of Your Peers
    3. Sentencing with restrictions
  • Confront Your Witnesses:
    Hearsay testimony is allowed in some cases.
  • Use of the Compulsory Process:
    In certain situations, the judge could refuse to compel certain witnesses to appear on your behalf.

Historically, in a criminal trial, a jury consisted of 12 members who must return a unanimous verdict.  If there are less than six members, a unanimous verdict is not necessary.

A jury panel, when selected, should be composed of people who could be fair, impartial, listen to all of the evidence and not be swayed by whether they like the prosecutor, police officers and judges, more than the accused and/or their attorney.

In the past, women and people of color were denied citizenship, the right to vote, equal access to education, own property, among others and the ability to serve as jurors.  Supposedly, the jury should be taken from a fair cross section of the community and composed of a jury of your peers.  In the case of Strauder v. West Virginia, 100 U.S. 303 (1880), for the first time, this court reversed a state court on a constitutional violation of criminal procedure – categorical exclusions of black men from serving on juries.  The court held that black men were allowed to serve on juries, because a composition of the panel should consist of “[his] neighbors, fellows, associates…trial by the peers.”  Unfortunately, this case still allowed the exclusion of women as jurors.  In 1870, Wyoming allowed women to serve on juries and Kansas in 1912.  Missouri lagged behind and still inquired about the right of women jurors in 1927 in the law review article by E. M. Grossman and George A. McNulty, “Right of Women to Serve on Juries in Missouri”, 12 St. Louis L. Rev. 138 (1927).

Who are considered the peers of juveniles certified as adults or those accused individuals suffering from mental health issues?  Is an all male jury or female jury fair as in the case of State of Florida v. George Zimmerman? Should the composition be based solely upon the accused’s race, gender, sexual orientation, employment, upbringing, economic status, etc.”  These are questions that can be posed to the jurors during voir dire (jury selection), sure, but is that enough?

Is a trial fair when the accused does not have enough arsenal in resources (attorneys, investigators, law clerks, legal researchers, doctors, and other experts) to defend themselves against the army (United States, police officers, detectives, FBI agents, labs, experts) led by attorney generals and prosecutors?

Regarding the right to a trial during sentencing, in Missouri, it depends on the type of case and the prior offenses of the accused, in determining their right to a jury trial during the sentencing phase.

A fair trial is a fundamental right with numerous exceptions.  It is our duty to protect and defend our rights and the rights of those who lack the voice to be heard.

Dorothy L. McClendon
Attorney and Counselor at Law
SAVORY MCCLENDON, L.L.C.
www.savorylawfirm.com
www.facebook.com/savorymcclendon
www.linkedin/in/DorothyLSavory
Office: (816) 353-4268

Benefits of More Amnesty Days for Traffic Warrants

What is Amnesty Day for Traffic Warrants?

Each year, various courts in Missouri organize “Amnesty Days”.  During this time, people are free to attend court, get warrants lifted and a new court date, or resolve the cases, without fear of being placed in jail.

What is the Problem with Amnesty Days?

The problem in some of the urban areas of Kansas City, Missouri is that Amnesty Day is purely one day.  There are thousands of people who have outstanding warrants for various reasons.  Having one day, with only selected courts participating, is not beneficial to those who may need this opportunity the most, the disadvantaged.

Amnesty Days are not always highly publicized.  They leave as quickly as they appear.

Possible Solutions to this Program

Some of the possible solutions to have a greater impact and reach more people, include:

  • Using more social media and not just the website to inform the community about this opportunity
  • Contact local newspapers and request that this information is placed there for at least one month prior to the Amnesty Day
  • Lengthen the time for the Amnesty Day, to possibly one week, month, or once every quarter
  • Encourage courts to post postcards in their courtrooms at least one month in advance of the scheduled Amnesty Day
  • Create a calendar on the State of Missouri’s webpage with all each participating court and their scheduled Amnesty Day

What Can Missouri Attorney’s Do to Participate?

Attorneys can use this day as an opportunity to give back, providing pro bono representation.  Corporate attorneys could use this an opportunity to gain experience dealing with an area of law different from what they normally practice.  More Missouri Bar Associations could follow the footsteps of the Association for Women Lawyers of Greater Kansas City’s “Step Up for Women” annual program.

How to Learn About Other Amnesty Days?

Contact the court that you have warrants pending in.

As of the writing of this blog, the next Amnesty “Week” will be at the Claycomo Municipal Court from January 25 – 29, 2016.

Dorothy L. McClendon
Attorney and Counselor at Law
SAVORY MCCLENDON, L.L.C.
www.savorylawfirm.com
www.facebook.com/savorymcclendon
www.linkedin/in/DorothyLSavory
(816) 353-4268

 

 

 

Benefits of Missouri Senate Bill 5 to Defendants in Municipal Courts


 

The goal of Missouri Senate Bill 5 was to reform the municipal courts and modify how traffic fines and court costs are distributed.  What brought on this effort of reform?  This bill is not just the result of the criminal system in Ferguson, Missouri, but the lack of oversight of the operations of courts throughout the state of Missouri.  (See Governor Jay Nixon’s Address to the Missouri Bar Spring Committee, March 6, 2015).

Were municipalities really enforcing justice or violating the constitution by imprisoning people for failure to pay a debt?  I believe courts were doing both.  I have, unfortunately, witnessed judges confining the poor for the inability to pay an old fine or court costs.

Missouri Senate Bill 5 has required municipalities to put into effect the some of the following standards, giving any resident the ability to request an investigation of the practices, by affidavit, if they deem that the standards are not being met:

-Cap amount of revenue municipalities can receive on traffic citations

-Auditing municipalities to determine whether there are internal controls and systems in place to verify revenues and expenditures;

-Policies and procedures for police insurance coverage, safe operation of emergency vehicles (including police pursuits), use of force by peace officers, reporting all crime/police stop data, and providing accreditation for the police departments;

Each municipality has to comply within three (3) years.

Why is Senate Bill 5 beneficial to municipal court defendants?

This bill decreases the amount for (1) fines and court costs for “minor traffic violations” (a term courts are having difficulty interpreting); (2) prevents courts from threatening jail time or detaining those in custody who have the inability to pay their fines and court costs; (3) forbids jail time as a sentence for those with minor traffic violations.  Specifically, the bill outlines the following:

  • The total amount for fines and court costs for “minor traffic violations” should not exceed $300.00;
  • No jail time should be given for a person with “minor traffic violations”;
  • Defendants should not be thrown in jail to force them to pay fines and court costs (unless it is a violation of probation);
  • If defendants are indigent, the municipal court should consider this, establish procedures to allow them to present their financial status and take this into account when their fines and court costs are determined.  If they are deemed indigent, then no court costs should be assessed against them.

Courts must show that they are in substantial compliance with establishing procedures indicating the following:

  • Those in custody may appear before a judge within forty-eight (48) hours on minor traffic violations, otherwise they are to be released;
  • Arrest warrants are needed for defendants in municipal custody, within twenty-four (24) hours after arrest;
  • Courts are no longer allowed to assess an additional charge for failure to appear;
  • Procedure showing that Defendants are not held in custody to force them to pay fines and court costs;
  • Courtrooms should be large enough to hold the public, including parties, attorneys, and others;
  • Municipal court should allow alternative payment plans, including community service as an alternative.

Why are courts concerned about this bill?

In a nutshell, courts are concerned about the possible decreased revenue and the vast amount of “paperwork” that is required to be submitted.  With this conflict, some courts in Missouri are refusing to implement this bill, they are finding “creative” ways to bypass the requirements, especially dealing with the limit on fines/court costs for minor violations, or they are having challenges understanding what a “minor violation” is defined as.

Overall, this bill is a great effort to restoring justice for the indigent, although it is a work in progress.

Dorothy L. Savory McClendon
Attorney and Counselor at Law
SAVORY McCLENDON, L.L.C.
P.O. Box 9426
Raytown, Missouri 64133
Office: (816) 353-4268
www.savorylawfirm.com
www.facebook/savorymclendon

It’s Cheaper to Pay the ticket!

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I often hear clients and prospective clients comment, “Why should I hire an attorney when it’s cheaper for me to pay the ticket?”  That could be true upon first impression.  This blog will show you why it is in your best interest to hire an attorney in some circumstances, even for traffic tickets.

Case Example
You just received a speeding ticket for driving ten (10) miles over the speed limit in Kansas City, Missouri.  The fine is about $123.00.  In reviewing your driver’s record, you paid a speeding and no insurance ticket last year, without an attorney.

Things to Consider Before Paying the Ticket
When balancing the options of whether to pay the ticket versus hiring an attorney to help defend you, consider the following:

1.  DETERMINE THE TYPE OF TICKET

  • Is it a moving or nonmoving violation?  Pursuant to Missouri Revised Statutes Section 302.010 (13) a “Moving violation” is defined as “that character of traffic violation where at the time of violation the motor vehicle involved is in motion, except that the term does not include the driving of a motor vehicle without a valid motor vehicle registration license, or violations of sections 304.170 to 304.240, inclusive, relating to sizes and weights of vehicles.”

2.  MOVING VIOLATIONS

  • How many points will I receive on my driver’s record if I “pay the ticket” without an attorney?  Take a look at the Missouri Department of Revenue website: http://www.dor.mo.gov/forms/899.pdf

3.  CONSEQUENCES, IF ANY, OF PAYING THE TICKET

  • How will paying this ticket affect my driver’s license status?
  • How will paying this ticket affect my insurance rate?

In the example above, you should hire an attorney.  Here’s why:

Last year, you paid tickets for speeding and no insurance.  In Missouri, you gained six (6) points on your driver’s record (2 for speeding and 4 for no insurance).  Both of these tickets are moving violations in Missouri.  If you pay the speeding ticket you just received, you will gain an additional two (2) points.  You will then have a total of eight (8) points on your driver’s record.

Effect on Your Driver’s License – SUSPENSION!!!!

In Missouri, if you receive eight (8) points in eighteen (18) months, your license will be suspended.  If you continue to drive, a ticket for driving while suspended will be twelve (12) points, and you will lose the ability to reinstate your driver’s license for an entire year.

Effect on Your Insurance Rate – INCREASE!!!!

Your insurance rate will increase.  The rate increase could apply for up to a year or longer, or until you correct the issues which caused the increase.

IS IT CHEAPER TO PAY THE TICKET?

So, the question I pose now, “is it cheaper to pay the ticket?”  Your fine of $123.00 for a speeding ticket, will cause your license to be suspended and your insurance rate to increase (approximately, $10.00 per month for 1 – 2 years = $240.00).  If you hire an attorney to negotiate with the prosecutors on your behalf, your insurance rate is less likely to increase and your license will remain valid.  Depending on the circumstances, your attorney may be able to assist you with point removal and withdrawing your guilty plea on the tickets you paid last year.

*This blog is for informational purposes only.  For legal advice, please contact the law office of Savory McClendon, L.L.C.*

Dorothy L. Savory McClendon
Attorney and Counselor at Law
SAVORY McCLENDON, L.L.C.
P.O. Box 9426
Raytown, Missouri 64133
Office: (816) 353-4268
www.savorylawfirm.com
www.facebook/savorymclendon

The Need for More Youth/Peer Courts in Kansas City: An Alternative to the Juvenile “Justice” System

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This gallery contains 2 photos.

I believe that one way that our youth, community, courts and law enforcement can help to deter crime in our schools is by creating more peer/youth courts in Missouri.  With youth courts, we can take a more proactive approach in … Continue reading

We Can Do This! Let’s Get Your Driver’s License Back!

Life happens.  You forgot about the speeding ticket you received in St. Louis, Missouri in 2005 and the no insurance ticket in Atlanta, Georgia in 2010.  You just received a speeding ticket in Kansas City.  This time, the officer also issued a citation for Driving While Suspended.

So now, what do you do?  To make sure you have no other issues keeping you from obtaining your license, take a look at your driver’s record first.  Read the Benefits of Reviewing Your Driver’s Record.

The tickets in St. Louis, Missouri and Atlanta, Georgia will need to be resolved.  You can go the cheaper route (on its face) by paying the tickets in St. Louis and Atlanta or hire attorneys who practice in those areas.  Can you afford the additional points and higher insurance rates if you pay the tickets without an attorney?

After the tickets are resolved favorably, you will receive a Notice/Letter of Compliance from those courts.  (Some courts may release the compliance letters before you have completely resolved your tickets.)  This notice is a release of the hold on your license from the other cities.  Once received, you will need to take those documents to the local driver’s license bureau or mail them, along with a reinstatement fee, in order to get your license reinstated.  Additionally, due to the lapse of time since you have had a valid license, you will need to retake the driver’s test in Missouri.

In the alternative, if it is unlikely that you will be able to resolve the tickets in St. Louis and Atlanta, attempt to get a hardship license.

Take a look at this website: Missouri Department of Revenue Reinstatement Requirements.

MISSION ACCOMPLISHED….ALMOST

Green Check Mark Symbol Photo Cutout

You have stayed focus and have handled two out of three of your cases.  Now that you are reinstated, your attorney can negotiate on your behalf to have your tickets in Kansas City possibly dismissed with/without diversion, reduced to no points with a reasonable fine, or probation.  Great job!  You’re a legal driver again!

Dorothy L. (Savory) McClendon
Attorney and Counselor at Law
SAVORY MCCLENDON, L.L.C.
P.O. Box 9426
Raytown, Missouri 64133
www.savorylawfirm.com
www.facebook.com/savorymcclendon
www.linkedin/in/DorothyLSavory
www.twitter.com/DorothyLSavory

Benefits of Reviewing Your Driver’s Record

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I have a high volume traffic defense practice.  I also engage in other areas of the law.  Many of my clients have never seen their driver’s record.  Most of them are confident that they do not have a “bad” record or they have no idea why their license is suspended.

What is a driver’s record?  Your driver’s record is like a credit report.  It shows your good and bad actions/inactions as a result of your privilege to drive.  Your driver’s record is a snapshot of your history as a driver.

What does the driver’s record show?

  • Status of License:  Is your license valid, expired, suspended, or revoked?
      1.   Is your license suspended because you received too many points in a short period of time?
      2.   Are you behind in paying your child support which is causing your          license to be suspended?
      3.   Do you have any alcohol related suspensions?
  • Number of Convictions/Points:  Paying your tickets, moving violations, without representation, increases the possibility of obtaining more convictions/points on your record.  You should review the record to determine how many points are already on your record.  You may be in a position to have some, if not all, of the points removed.
  • Places of Failure to Appears and Convictions:  What court did you miss court in or when did you fail to pay the ticket for the moving violation (i.e. speeding ticket)?
  • Judgments:  Is a judgment keeping you from obtaining your license?  A judgment would be shown if you were in a car accident and were later sued.
  • Identity Theft:  Your wallet/purse was stolen and now someone has used your identity.  Do you remember obtaining certain tickets in certain jurisdictions?  If not, your identity may have been stolen.

The benefits of knowing what is on your driver’s record could make the difference in whether you keep a valid license or whether it is or will be suspended.

How can you obtain a driver’s record in Missouri?
You can obtain your driver’s record in person at any local Missouri license office, by fax or by mail.  Go to the Missouri Department of Revenue website to learn about how to request your driver’s record.

It is to your benefit to check your driver’s record at least every six (6) months.  Make sure that your address is always updated with the driver’s license bureau so that you will receive any notices regarding the status of your license.

Dorothy L. (Savory) McClendon
Attorney and Counselor at Law
SAVORY MCCLENDON, L.L.C.
P.O. Box 9426
Raytown, Missouri 64133
www.savorylawfirm.com
www.facebook.com/savorymcclendon
www.linkedin/in/DorothyLSavory
www.twitter.com/DorothyLSavory