What exactly is Due Process? The 6th Amendment??

[mommy2mycutie]

What is the name of your state? Arkansas

Ok, I typed a whole long message and it didn't post, so this time I'm keeping it short. What is considered a "speedy trial"? What is the time limit??

A little background: My brother was arrested for theft (pawning his wife's belongings) and possession of drugs and later "unathorized use" of his wife's car (sold it for drugs) and violation of the Order of Protection (by writing his wife 3 letters while in jail). He has been in the County jail for 5 months and was just offered a plea bargain of the max sentence of 20 yrs which he denied and asked for a trial. The Prosecutor told my mom he would come back in a month and offer my brother 4 yrs at the Dept. of Correction facility in Texarkana, Ark, for first time non-violent offenders (he had first mentioned drug court for a yr and 5 yrs probation till my brother wrote his wife 3 letters). After appearing before the judge twice, my brother was just recently offered a Public Defender which he accepted.

The Prosecutor knows my brother won't get credited with time served while in Texarkana, is the Prosecutor purposely not letting my brother go to trial to keep him in jails for as long as possible? How long can this go on?? Thanks!

 

[seniorjudge]

...is the Prosecutor purposely not letting my brother go to trial to keep him in jails for as long as possible?...

The prosecutor has nothing to do with this. It is up to your brother and his lawyer. If your brother wants to go to trial, then he should plead not guilty and get a trial date set.

 

[mommy2mycutie]

But they haven't even arraigned (sp??) him yet...doesn't he have to be arrainged or something in order to pleas anything?

He never sees his Public Defender. My brother went before the judge twice to hear the charges against him, then he was asked if he could afford a lawyer, he said no, they appointed a lawyer to my brother and my brother has yet to see this guy/gal (and it's been a couple months).

I know my brother can fire him/her and get someone else, but my brother (23 yrs old) wants to get this over with asap cause the longer he stays in the county jail, the longer it is before he is sent to Texarkana, and the longer time it is before he can see his 2 yr old daughter again (which his now ex-wife is trying to have his parental rights taken away and my brother can't hire a lawyer to fight on his behalf).

 

[seniorjudge]

Why will he be sent to Texarkana?

 

[mommy2mycutie]

Our mom has been talking to the Prosecutor about once a week trying to get him to get my brother into Teen Challenge or some sort of rehab for his drug abuse. But the Prosecutor won't hear it.

At first the Pros. told my mom he would give my bro. drug court for a yr (tested 3 times a week for a year for drugs), and 5 yrs probation. Then he changed his mind and told my mom he was giving my brother 2 yrs at Texarkana (a Dept. of Correction facility for first time non-violent offenders). Then he offered my brother a plea bargain last week for 20 yrs (10 for the drugs and 10 for theft...it's the max). Last Thurs. morning my mom called him again and he said he was going to offer my brother 4 yrs at the DOC facility in Texarkana next month when he goes to make my brother another plea bargain. So we'll never really know what my brother gets for his illegal behavior until the actual sentencing, but the Prosecutor told my mom whatever he reccomends to the judge, he gets.

 

[seniorjudge]

...but the Prosecutor told my mom whatever he reccomends to the judge, he gets.

That is, if your brother pleads guilty.

Anyway, if you are telling me that your brother has been sitting in jail for 2 months without seeing a lawyer, then your brother (not mommy or sis) needs to ask the jailer to take him before his judge and have your brother (not mommy or sis) ask the judge to let him see his lawyer.

 

[mommy2mycutie]

Actually he's been in jail for 5 months without seeing a lawyer. And if the Prosecutor really waits another month before offering my bro. another plea bargain like he said he would, it'll be six months. But it has only been 2 months since the lawyer was appointed to my bro. He was there for 2 months before going before the judge to hear the charges against him, then sat there for another month before going before the judge again to ask if he could afford a lawyer.

My brother has tried to speak to the jailer and my brother said they are a little prejudice there and when my brother spoke up one time, he was put in lockdown for 12 hours (that's the only time my brother got in trouble while in there and the last time he has tried to speak up).

 

[seniorjudge]

Tell your brother that he (not mommy or sis) needs to write a letter to the judge explaining the situation.

At the top of the letter, have him write, "Writ of Habeas Corpus."

 

[mommy2mycutie]

Okay, will do, thanks.

Sorry, one last question, back to the 6th Amendment - is there a time limit as far as a speedy trial is considered? My brother has said over and over again that he wants to go to trial (just to the Prosecutor, not the judge since he hasn't been arraigned yet).

Can he sit in jail for years and years for possessing a couple rocks of cocaine and a joint and pawning an old violin of his then wife's, unauthorized use of a vehicle, and violation of a order of protection (writing his wife 3 letters)?

I know my brother is guilty, but what about all the innocent people sitting in jails. Can they just sit there forever (exageration) without having their day in court???

 

[mommy2mycutie]

Ok, so is there anyone out there that can answer my original question???

What exactly is Due Process? What is considered a "speedy trial" as stated in the 6th Amendment? Is there a certain time limit for a person once arrested, to the time they are arraigned, to the time of the trial???

Thanks

 

[seniorjudge]

Your questions took a whole semester in law school to discuss and we came to no firm conclusions at the end of that semester.

 

[mommy2mycutie]

LOL, well that helps - not.

So we have the Amendments to protect our rights, but no one really knows what it means? So do prisoners really have the right to a speedy trial or just to face witnesses of the crime in court and to defend themselves if they want??? Was the speedy trial part just written for the heck of it, to make it sound better than it really is?

I swear our legal process is a bunch of crap...

 

[seniorjudge]

"I swear our legal process is a bunch of crap...."

You may very well be right. We have been working on it since 1776. It has taken longer than we expected.

This is an interesting book you can get at Amazon: Due Process of Law: A Brief History, by John V. Orth. If you don't want to buy it, just search for "due process" under books on Amazon.com and read some of the sample chapters.

The questions you have asked are very perceptive and they need to be answered. It's just that I cannot write a book right now and post it to this forum.

Keep asking those questions....