Misdemeanors

Susan Reff: So today we have Erin Wetzel here with us. Hello. Hi, Erin. How’s it going?

Erin Wetzel: Fabulous.

Susan Reff: Ahead.

Susan Reff: It’s it’s back to school time and my son has been back to school for four days now. So it’s

Susan Reff: Like still

Susan Reff: Hot, like summer. But school started. It’s so weird.

Erin Wetzel: Are you glad that he’s back in school?

Susan Reff: I am. The summer was. He was home alone

Susan Reff: A lot,

Susan Reff: And I just didn’t love that, so he did some camps, but now he’s back at school, so that’s that’s good. But you know, when when I was a kid, we went, you know, Labor Day and Memorial Day for school, and now it’s so early when they start.

Erin Wetzel: We always started middle of August and I went to a private school. We started a week before the public school, but then we got out earlier in May two, where they were going towards the end of May. But we got out like middle of May

Susan Reff: And your kids are like teeny tiny, so they

Susan Reff: Don’t go to school.

Erin Wetzel: It’s not. It’s not really back to school because they’re always at daycare. But we we call it school and we’re talking to them and the teachers call it school. But there’s a back to school night tonight.

Susan Reff: Fun. Yeah. We head back to school night like a week before school. So what’s back to school night like at daycare?

Erin Wetzel: Well, because of COVID, they have us just drop the kids off at the door. We can’t actually go into the school because they don’t want so many people walking in and out of the school. So it’s been, I mean, almost to well over a year now since we’ve actually been in the school, they moved to a new room in the meantime. So we’ve never seen this room. So it’s just a way for, I think, the parents to actually see the rooms that their kids are in now and talk to the teachers and then the kids can play outside. And then I guess they’re doing some fun things like a book fair and an ice cream truck. So we’ll see. We’ll see how it goes.

Susan Reff: That’s fun. Yeah.

Susan Reff: So the kids come with you.

Erin Wetzel: Yeah, they come with us. But then they have some teachers that are just going to be playing with all the kids outside.

Susan Reff: Hmm.

Susan Reff: I don’t think when my son was that age, we ever had back to school night for. But maybe it’s just a COVID thing that they’re doing it like they wouldn’t normally do that.

Erin Wetzel: Yeah, I mean, they didn’t do it last year, which they if they were going to, they probably would have canceled it. And then the year before would have been actually probably after the time my girl started because they’re two and they would have started end of August would have been the first time that they were at daycare. So maybe they did it before. And I just don’t know

Susan Reff: Those things that happen that we don’t always know about our

Erin Wetzel: Kids, but also it’s a new daycare. So I think they had only they probably hadn’t had it before I was there because they’d only they had opened the march before my girls started going and we started going into Vegas, so they might not have done it before. Yeah.

Susan Reff: Well, I hope you have a good time.

Erin Wetzel: I’m sure we

Susan Reff: Will.

Susan Reff: So for people that don’t know in our firm, Erin and I are the attorneys that do criminal cases, and both of us have a lot of experience in this area and it’s a really interesting area of the law. I think because while

Susan Reff: The rules and

Susan Reff: Courtroom decor, decorum and all that stuff is the same as civil cases like there’s there seems to be a lot of unwritten rules and like cultural things that happen in criminal cases, especially misdemeanor

Erin Wetzel: Cases. Definitely. I mean, you have the the state represented by the county attorney’s office who kind of controls a lot of how the case goes down and how it’s handled. So a lot of it depends on what that specific office’s policies are. So, yeah, it can really vary from county to county here.

Susan Reff: And the crazy thing in in Omaha in Douglas County is that we also have the city prosecutor’s office, which I think and maybe you have more experience in this area because you’ve practiced elsewhere. The Omaha City Prosecutor’s Office is the only like city prosecutor that does criminal cases. Or am I wrong on that?

Erin Wetzel: I think it’s kind of I think there are some other counties that have a city prosecutor, if you will, but more for the civil side of stuff that sure can step in occasionally on criminal cases. So when I was in central Nebraska, I saw it very rarely. One of the cases where I saw it, interestingly, was the city prosecutor charged the sheriff with violating a city ordinance for having his horses on city streets and city limits. Wow. It was this. It was this big thing. And then he came into the courtroom and his uniform, and the judge yelled at him and said, Don’t you dare walk in here as a defendant in your uniform with your gun? And oh my gosh, it was. It’s a small town drama.

Susan Reff: Wow. Let’s do a whole podcast just on that thing. Ok, that’d be fun. But in in Douglas County, the city prosecutor’s office handles the majority of misdemeanor cases except for. Surveillance cases, right? So they have an arrangement with the county attorney’s office, but there’s they’re both acting as prosecutors and they’re representing the state.

Erin Wetzel: Right? Yeah. Isn’t their arrangement that the city prosecutor’s office does all of the DUIs and in exchange, the county attorney does all the the domestic violence charges. Four. Yeah, I shouldn’t say all of them. Most of them, I

Susan Reff: Think I think the county attorney does all the domestic violence, and that’s

Erin Wetzel: It. And I think kind of the the exception to that is that the child neglect abuse is the prosecutor’s office will handle those types of cases.

Susan Reff: Yes.

Susan Reff: So I mean, it comes down

Susan Reff: To

Susan Reff: It doesn’t really matter who’s prosecuting you, right? Like, you’re in trouble, right, Lou. You know, bad things are happening. So in a criminal case, like most of the time, people think like on TV, right, that someone’s getting cuffed, slapped on them and thrown in the back of a cruiser. But that’s not always how cases start.

Erin Wetzel: No, not for the misdemeanors, I’d say. If you’re getting charged with a misdemeanor, it’s probably actually rare that you’re getting arrested.

Susan Reff: Yeah, I mean, so people get tickets right? You know, even even for really serious crimes, sometimes you’re just issued a citation from law enforcement,

Erin Wetzel: Right, which looks the exact same as if you’re getting a speeding ticket.

Susan Reff: Yeah, yeah. It’s the same piece of paper. Just has different words on it. Exactly. And one thing to tell people

Susan Reff: What

Susan Reff: What makes something a crime in our world is, are you going to jail or not? Is there a possibility you could go to jail, right? Like you can get a speeding ticket and we could represent you, but there’s really no there’s absolutely no way you’re going to go to jail on a speeding ticket or running a red light or something like that. Right. So in our mind, those those are called infractions and they’re like lesser violations of the law basically, right?

Erin Wetzel: I mean, in Nebraska, if you’re not facing any potential jail time, you’re not entitled to an attorney. Right? So if you want an attorney, you have to hire your own. If there’s potential jail time and you can’t afford an attorney and you meet the the criteria regarding your finances at the the levels that are determined by the state, then the judge can appoint an attorney to represent you for free.

Susan Reff: And I think it’s really interesting. Like, I mean, I have seen paper citations written for very serious crimes and and then I’ve seen people get arrested for, you know, smaller crimes, you know, their jailable. But you know, like, for example, I’ve seen someone arrested for a reckless driving and then I’ve seen someone receive a paper citation for a domestic assault like it just doesn’t. I don’t know

Susan Reff: If if

Susan Reff: Each law enforcement group has their own kind of guidelines, if it’s officer specific, you know, in that moment, like they have discretion, I just don’t

Erin Wetzel: Know. I think sometimes in some of my cases, it seems to come down to how cooperative the person is, for sure. If the person is nice and respectful to the police and says that they will accept the citation, then they give them the citation. But if they refuse to accept it, then they have to arrest them. So the moral of that story is just be respectful. You’re not admitting anything. If you accept the citation, you’re just acknowledging that they’re saying they’re charging you with this and that you agree that you should come to that court date.

Susan Reff: And there’s actually a crime in Nebraska that’s not jailable, but it’s called failure to sign a citation. Really, yes. I’ve actually had a few clients charged with this on top of their like more serious charges. And I think it’s a class four. So it’s only jail time. Yeah, you can only get a fine. And it it’s like the cop has said numerous times to this person, like just sign this, please. All you’re doing by signing it is saying you’re going to show up at this court date that I wrote on the paper. And you know, usually the person is just highly uncooperative in general. Sometimes they’re under the influence. So there’s there’s some reasons why people aren’t signing the citation, but it’s like, gosh, on top of everything else you have now, you’re getting yourself in more trouble, basically.

Erin Wetzel: Yeah, just just sign it. You’re not admitting anything by signing it.

Susan Reff: And then there’s, you know,

Susan Reff: We hear these things. There’s there’s like these rumors that, like the Omaha Police Department, will always arrest if it’s a certain crime or the sheriff’s department will always arrest. You know, like right now, I think we’ve been hearing a lot that like someone is always going to get arrested if there’s a domestic violence call.

Susan Reff: But then, you know.

Susan Reff: Third, offense, DUI is are not getting arrested. Stuff like that.

Erin Wetzel: Yeah, I don’t I don’t think that’s technically correct. I mean, I’ve I’ve had situations where there’s a fight, a domestic fight, and it turns out that nobody gets arrested. I think people think if there’s a fight, a domestic fight, that the cops come and say, Well, we have to arrest one of you, and that’s not accurate.

Susan Reff: So after a person either gets a citation or they get arrested in a criminal case, there’s a court hearing, right? And if you’re arrested in a misdemeanor, the first court hearing, the bond is a bond setting. Yeah, yeah. But if you have a citation, your first appearance isn’t going to be until you have an arraignment, right?

Erin Wetzel: And that can be months after you get the citation.

Susan Reff: Right. And this is where like, I think we’ve really seen COVID effect case progressions.

Susan Reff: I mean,

Susan Reff: The police are putting, you know, they can put any court date they want on that ticket, right? Right. Which is interesting that they they get to pick for whatever reason the cops really like to put Mondays and Tuesdays on. Also, I feel

Erin Wetzel: Like, yes, I’ve noticed that.

Susan Reff: So like, there’s tons of arraignments on Mondays and Tuesdays, and it kind of tapers off as the week goes on. And I don’t know why they do that, but they do.

Erin Wetzel: Do you think maybe they’re told to do Mondays, Tuesdays?

Susan Reff: I have no idea.

Susan Reff: I don’t know. But. So that what? That first court appearance is called an arraignment. And I always tell clients, you know, at that that hearing the judge is going to formally tell you what all your charges are. They’re going to tell you, you know, you’ve been charged with this and here’s the penalties for that. And you’ve been charged. If they have more than one count, they’ll tell them what the penalties for each count are.

Erin Wetzel: And they also tell you what your rights are throughout the case. But they do that at other hearings, too. They do a generic rights advisory. They call it at the start because these hearings are all what we call cattle call right. It’s a whole bunch of cases set for the same time. You have maybe 20, some 30 people in the room that all have hearings. And so the judge

Susan Reff: Says if you

Erin Wetzel: Have a court hearing today, listen up, you have to listen to what I have to say and then goes through all of your criminal rights.

Susan Reff: I think that was one of the things that I was

Susan Reff: Most,

Susan Reff: You know, like kind of shocked about when I started practicing criminal law. Was the group rights advisory, right? Because those courtrooms are kind of chaotic, right? There’s people coming and going. People show up late. I mean, they’re supposed to be there at a certain time, but people walk in and out. Lawyers are walking in and out, lawyers are talking to each other. There’s, you know, sheriff and security in the courtroom. They’re bringing in people who are coming from the jail. It’s like a lot of commotion. And the judges are saying, here’s what all your rights are. Yeah, and half the people in the room aren’t listening.

Erin Wetzel: I’m sure. I’m sure they’re not. But I mean, they individually asked the person, Were you here? When I advised of the rights, did you understand them? Do you have any questions?

Susan Reff: And and it always stinks to be that lawyer. That’s like my client was late and missed that. But I mean, I’ve seen lawyers who just are like, Just tell him, you heard it, you know?

Erin Wetzel: Yeah.

Susan Reff: So, so the judge tells them what their charges are, what the penalties for those charges are, what their rights are. Asks if they heard their rights. We hope that people heard and understood their rights. And then and then the judge says, you know, how do you want to plead to this charge? Right? I mean, I think that’s the next thing that happens.

Erin Wetzel: Yeah. And you I mean, there’s several options, right? There’s the most common options. Not guilty. Guilty. No contest, which. No contest is essentially saying, I’m not going to admit that I did this, but I more or less agree that the state has the evidence to convict me of it.

Susan Reff: It’s not no contents. People say that. And you know, I mean, I suppose people can be nervous and they just misspeak. But the funniest case I ever heard was someone was pleading to open container. And they pled no contents.

Susan Reff: And the judge

Susan Reff: Found them guilty, and they said, Why are you finding me guilt? They didn’t have an attorney. And they said, Where are you finding me guilty? There was no contents in the bottle. It was empty. And the judge was like, Wait, I thought, you plead no contest and you just misspoke. And the person said there was nothing in the bottle. It was empty. So I can’t you can’t charge me with open container because I was carrying an empty bottle of. Liquor or whatever it was. So that was hilarious, and everyone

Susan Reff: Thought

Susan Reff: The person just didn’t know like it was no contest instead of contents. But they were really asserting that was their defense. There’s no contents of alcohol.

Erin Wetzel: I’d be curious to know how that case turned out.

Susan Reff: I think the judge said, I’m going to enter. I’m going to assume you want to plead not guilty and have a trial. The person was like, Well, yeah. So that in that case, that person, like really thought that first court appearance was their trial, right? But it wasn’t. It was, you know, just it’s like a preliminary type of a hearing where pre-trial things happen. Not there’s no trial. Even if someone walked in that day and totally ready for trial, the judge wouldn’t have their trial that day.

Erin Wetzel: Oh, no. They set off special trial dates for that. They’re not going to do that when everybody’s there for their arraignment hearing.

Susan Reff: So what happens if someone pleads not guilty that day at that first appearance?

Erin Wetzel: So essentially, that’s all that happens that day, right? You’re advised of your rights. You’re advised of what you’re charged with. You plead not guilty. And then the judge will set your case out for typically a pretrial hearing. Sometimes it can get set for a trial right away, and then your attorney has the ability to get what we call discovery and discovery as police reports, videos, photos, reports, documents anything that the state has related to the case.

Susan Reff: So what at that arraignment to? I mean, people often will plead guilty right away to right, you know, they just walk in and they’re like, Yeah, I was I was driving under the influence.

Susan Reff: And then the judge,

Susan Reff: This is what I tell people to. If you’re going to plead guilty at that first hearing, you better be ready to be sentenced immediately because that’s what happens right after a guilty finding is you’re sentenced. So if they weren’t prepared to go to jail, sometimes that happens and people are often shocked that they get put in handcuffs at that hearing because they’ve pled guilty.

Erin Wetzel: I’d say more often than not, you do get sentenced on the same date that you plead.

Susan Reff: Yeah, and that’s where I think having an attorney to kind of walk you through some of this stuff that

Susan Reff: Is I

Susan Reff: Mean, it’s it’s obviously it makes sense that once you are found guilty or plead guilty, you’re sentenced. But sometimes people don’t think about that. They don’t think beyond the whether they’re guilty or not. Right. And there’s a lot of things that even if someone is guilty for sentencing that we can really help on to mitigate the case and make it a lot easier on our clients.

Erin Wetzel: Right. There’s things that we can help you do steps you can take to make it more likely that you would get probation instead of jail time. Maybe have a discussion with the prosecutors so that you get a fine, you know, just different things that we can do.

Susan Reff: So our takeaway about that arraignment is,

Susan Reff: You know,

Susan Reff: You can be incarcerated after your arraignment if things go all the way to sentencing. So it’s important to know what your rights are and to have a good attorney with you at that hearing.

Erin Wetzel: Right.

Susan Reff: And so

Susan Reff: So if you get sentenced and you plead guilty at that or if you plead guilty and you get sentenced at that first hearing like it’s done right and

Erin Wetzel: Then the case is over.

Susan Reff: Yeah, but if you like you said, if you’re pleading not guilty, then it gets set for trial and then the attorneys start getting all the information about the case.

Erin Wetzel: Right. And then we either use that to prepare for the trial or we use that to negotiate a plea deal with the prosecutor.

Susan Reff: And I think I I heard a statistic somewhere that it was like in misdemeanor cases in our area, like 90 plus percentage of

Susan Reff: Them, you know, plead.

Erin Wetzel: I believe that.

Susan Reff: I mean, it’s very rare that I feel like I walk into a trial courtroom and there’s actually a trial going on right.

Erin Wetzel: Even if a case gets set for trial, more often than not, you’re going to plead at that trial date.

Susan Reff: And I think, you know, I think people plea because they’re scared, you know, like they

Susan Reff: Don’t they’re

Susan Reff: Faced with a choice of a

Susan Reff: Plea that

Susan Reff: Is something very predictable, maybe versus a trial that’s unpredictable and they just don’t want to take any chances.

Erin Wetzel: Right. I think some people are worried also that if they take it to trial, they’re going to get what defense attorneys call the trial tax. Yes, being that the judge and the prosecutor are going to be mad that they wasted their time and made them do this trial, and therefore they’re going to get a harsher penalty than if they entered a plea, right? Which is not supposed to happen, whether or not that does happen. The. Judges who are handing down the sentence have their own personal biases, and they might not even consciously know that they’re doing it.

Susan Reff: Yeah. Trial tax, in my experience, is a very real thing, especially in misdemeanors. And I I think some of

Susan Reff: The thing

Susan Reff: That goes into it in the judge’s head to is the caseloads are so high. And if you have a trial, the trials are also cattle call right when unless it’s a jury trial, if it’s a run of the mill misdemeanor case, it’s a cattle call trial so that judge walks in that courtroom and they may have 15 to 30 cases which are all set for trial. And if a few of them start having trials and they’re all set at the same time and then interspersed in, there’s a couple of people taking pleas. That makes for a very, very long time in the courtroom, right?

Erin Wetzel: The other thing that can happen to is if there’s a trial and the judge hears more facts than they would have otherwise with a plea deal that might make them want to sentence that person to additional time than they would have otherwise, because they wouldn’t have heard those specific facts of the case.

Susan Reff: Yeah, like in an assault case, if it’s, you know, a situation where maybe someone punches somebody one time in the shoulder versus like multiple punches to someone’s face where they end up, you know, with blood everywhere. I mean, like, yeah, they’re both assaults. They’re both bad. They’re both resulted in someone being injured. But one fact pattern might not be as bad to the judge, and they’re like, you know, that’s a lot worse than than, you know, a simple punch in the shoulder or something like that, right? Plea negotiations, though I like

Susan Reff: I,

Susan Reff: I think plea negotiations are kind of interesting and people our clients don’t ever know what we’re talking about, you know, like they’re not. They’re usually when we’re talking about pleas. And, you know, certain prosecutors have certain thoughts like, you know, if you’re going to plead to this charge, I always recommend a one hundred dollar fine. I always recommend one day in jail or whatever they’re they might have some like standards for their pleas.

Erin Wetzel: Right. And I think some of it too, is stuff that we, as defense attorneys might not know, like there might be a policy in their office. In all they say to us is, you know, if we we come back at them and we say, Well, what if? What if this person will plead to disorderly conduct instead of the assault and they say, I can’t do that. You always wonder, what do they mean by, I can’t do this? Do they mean I personally don’t want to do that? I can’t do that because as a supervisor, attorney told me, I can’t do that or I can’t do that because the head prosecutor in office has a policy that we don’t ever do that, you know, sometimes it’s hard to know.

Susan Reff: So there’s a couple of parts to a plea negotiation. There’s a case where there’s multiple counts of things, right? Like maybe someone has five counts. One part of a plea negotiation might be dismissing, you know, several counts and just pleading to one right. Another part of a plea negotiation

Susan Reff: Would be pleading

Susan Reff: To a less serious charge. So, like you said, an assault pleading down to a disorderly conduct. Right? And then there’s like sentencing recommendations that are part of plea negotiations

Erin Wetzel: To write in. You can either have that as part of the plea offer that you’ve agreed this is going to be the sentence or you don’t agree on a sentence. You’re only agreeing on the charges and it’s up to the judge with a sentence is going to be.

Susan Reff: So I was having a conversation the other day with some attorneys and a judge, one judge, about whether or not plea negotiations should be followed, you know, like one hundred percent. And obviously, the judge doesn’t. They have discretion. They do not ever have to follow a plea, a plea negotiation like as far as what a sentence would be, right? So if the prosecutor says, you know,

Susan Reff: The defendant is going

Susan Reff: To plead guilty to the assault and I’m going to recommend one day in jail,

Susan Reff: You know, the the judge

Susan Reff: Could say, Well, you know, I’m going to give him more time

Erin Wetzel: Than that. Yeah, I’m going to give him 10 days or whatever.

Susan Reff: Yeah, and this this judge said,

Susan Reff: You

Susan Reff: Know, he really took plea negotiations more as a recommendation. And the prosecutors, the prosecutors really got upset because they said, you know, there’s reasons we offer plea deals and it’s not just to like, you know, move the case through. I mean, that’s a little bit of it. But they said, really like we know our case, and if we have weaknesses, we have to acknowledge those and

Susan Reff: Still, you know,

Susan Reff: Do what we can to represent the state and the victim. And all of that. But they said, you know, there’s a reason that we’re making those recommendations to you because we know so much more about the case than you’ll ever know. Right. And for you to just kind of say, like, I just kind of look at it as a recommendation that, you know, and as defense attorneys were used to no one ever listening to what we say anyway. Right? Yeah. And the judge is just kind of, you know, because if if we’re if we’re battling at sentencing, you know, obviously the defense attorney is going to ask for lower fines, lesser jail time, and the state is going to be arguing for higher fines and higher jail time. And a lot of times it falls towards the prosecutor’s side usually. But to hear this, the prosecutors get pretty upset and say, You

Susan Reff: Know,

Susan Reff: To this judge, like we, we really want you to follow our our recommendations and there’s good reason behind them. And that was really an interesting conversation.

Erin Wetzel: I’ve rarely seen a judge not follow the recommended sentence. That’s part of the plea deal.

Susan Reff: I feel like sometimes it happens when

Erin Wetzel: The facts are pretty

Susan Reff: Bad.

Susan Reff: And the reason we are pleading, you know, coming to a plea deal with the prosecutors because maybe there’s some technicality in their case that they can’t overcome, right? But it’s a technicality and that a conviction would still come, but not necessarily, you know, especially when someone’s pleading down. Right? And then the judge finds out that like the person that got punched, like lost all their teeth or something

Susan Reff: Like that,

Susan Reff: They’re like, what? You’re recommending a one hundred dollar fine. And prosecutors like, Well, yeah, here’s why.

Erin Wetzel: Have you seen it in county court with the misdemeanors as much where the judge doesn’t follow the recommendation? I feel like it’s

Susan Reff: Really in my experience, it’s felony courtrooms, the

Susan Reff: Judges. I mean,

Susan Reff: You’re much less likely to get a sentencing recommendation and a felony. But true in county court, and I could probably tell you the five judges who I just I have no faith that they will follow the plea agreement. Right. And they do it.

Erin Wetzel: But tell me later,

Susan Reff: Yeah, I’ll tell you later. And now I know another one because he was part of this conversation that we had the other day.

Erin Wetzel: Oh, yeah, I need to know. Yeah.

Susan Reff: So something that people don’t know also is if you have a trial in a misdemeanor, you’re most likely having a trial just to a judge, right,

Erin Wetzel: Which is called a bench trial.

Susan Reff: There’s only certain

Susan Reff: Levels of misdemeanors that trigger your right to a jury trial.

Erin Wetzel: All right, the the highest level, the class one misdemeanor, that’s the only type of case that you get a jury trial on. You don’t get them on the, you know, the misdemeanors within the city municipal code. You don’t get a month, the class two three four, it’s only the class one. And it’s not what you think of when you think of the the trials that are, you know, blasted all over the media, right? It’s only six jurors.

Susan Reff: Yeah, for a misdemeanor, it’s six people, right? And one, I think, one alternate one or two. I think one, I don’t know.

Erin Wetzel: It’s probably up to the specific judge.

Susan Reff: But the yeah. So you still have all the same rights, whether it’s a bench trial or a jury trial in the, you know, whoever’s finding you guilty or not guilty has to find you guilty beyond a reasonable doubt. So whether that’s the judge or the jury and reasonable doubt is kind of hard to explain to people. And I just say, you know,

Susan Reff: Reasonable meaning,

Susan Reff: You know, like, would most people come to an agreement that that was reasonable? Yes. And then you no doubt like, do you have any if you even have a teeny tiny little doubt that this person did it like, that’s reasonable doubt.

Erin Wetzel: Since we’re lawyers, there’s lots of arguments in every state about what that phrase means. And it’s been litigated and appealed, and the Supreme Courts, or whatever the equivalent in other states are called because not every state calls it the Supreme Court. Yes, I’m a superior and district and stuff. Yeah. So there’s definitions that are set out, and you can even try to make arguments to the judge about what jury instruction you want them to give to the jurors about how you define this right?

Susan Reff: It’s it’s hard to define. I think it’s even when it’s defined. It’s it’s subject to interpretation.

Erin Wetzel: I think some of the other standards are easier to define, like a preponderance of the evidence, right? Fifty one percent versus forty nine percent, that’s so much easier to explain.

Susan Reff: Right. And so I think sometimes people think in a in a case that. Fifty one percent of the jurors need to find that you’re guilty. And that’s not how that works, either here.

Erin Wetzel: That’s not how that works in Nebraska. It has to be unanimous,

Susan Reff: So all the jurors have to agree,

Erin Wetzel: Right? There are some other states where I don’t think it has to be unanimous. I think there’s like two states where it doesn’t have to be. It’s like 10 of the 12

Susan Reff: Or really glad we’re not in those states, right? So, you know, as defense attorneys, we really only have to convince one person on the jury that our client is not guilty.

Erin Wetzel: Right.

Susan Reff: So and that’s an interesting thing that people a lot of people don’t know about. If you have a jury trial

Susan Reff: And let’s say it’s six

Susan Reff: Jurors and to say not guilty and for say guilty,

Susan Reff: It’s not.

Susan Reff: You don’t get a not guilty in that case.

Erin Wetzel: No, not guilty also has to be unanimous. Yes, if there’s not unanimous, guilty or unanimous not guilty, it’s a mistrial. Yes, which means it’s done for that day. And then the state decides whether or not they want to pursue the case again and try another trial.

Susan Reff: So I had a felony, a felony jury trial,

Susan Reff: Which

Susan Reff: Is 12 jurors and one juror said not guilty. In all, the other jurors said guilty, so it came out as a mistrial. And the you know, the lingo for that is they call it a hung jury, meaning they couldn’t come to a unanimous decision, right? And yeah, lots of different things can happen. In that case, my client ended up getting a plea offer for a misdemeanor from a felony with a win. Yeah, I think so. It was a good sentencing recommendation to wasn’t jail time. So, you know, and then at a bench trial, you know, it’s interesting because it’s just the judge. So it’s really only one person. Yet you have to convince that one person, but it’s the judge, right?

Erin Wetzel: I like to do bench trials when it’s more of a like a legal definition issue with the case, right? Not necessarily a factual. Did this person do it? Did they not do it right? Because I just think the judges are very critical of does this meet the legal definition?

Susan Reff: Well, and if you’re if you’re arguing the law a lot, you might have to really educate the jury about what the law is and then tell them how your client didn’t meet it. Whereas if you’re with a judge, you just make that assumption. They already understand, right?

Erin Wetzel: That first part, yeah, I think the other time, it’s good to have a bench trial as if it’s a highly emotional case. You know, maybe the facts are emotional or they make your client look like a very bad person, and you’re worried that some jurors might just immediately assume they’re guilty because the case just sounds so terrible, right?

Susan Reff: They must have done it, you know, right? Yeah. So trials in general can just be really emotional anyway.

Erin Wetzel: Oh yeah.

Susan Reff: But there’s a lot at stake, and that’s kind of, I think, a good place to kind of end on with criminal cases. You know, the cases we take,

Susan Reff: There’s

Susan Reff: Always, always a possibility someone could go to jail. Yeah. And there’s so many moving parts and and criminal cases move pretty fast.

Erin Wetzel: They do.

Susan Reff: So there’s not a lot of sitting around waiting. Things can happen on the fly. And it it really helps to have attorneys who are experienced. No, the judges know the prosecutors kind of know some of those unwritten rules about how things can happen in in the case.

Erin Wetzel: Right. And we can help with that.

Susan Reff: Absolutely. We’re going to answer a few questions that we’ve got about criminal cases in court in general. Next, but if you as a listener want to submit a question, you can submit it on our Facebook page at the Lady Lawyer League or on our Instagram at the Lady Lawyer League. And we will try to do this again in the future, where we can answer a couple more questions. Our first question is, can someone get jail time if they get a speeding ticket and then they ignore it? They never pay a fine. They never do anything about it

Erin Wetzel: In a roundabout way, not directly from not paying that speeding ticket,

Susan Reff: Right? So usually there’s like a due date on the citation that you pay

Susan Reff: The the fine

Susan Reff: By a due date. And if you don’t pay that fine by that due date,

Erin Wetzel: You have to go to court

Susan Reff: To contest it. And if you

Susan Reff: Do nothing for a certain amount of time.

Erin Wetzel: Then it gets referred to the DMV. So, yeah, so basically on a speeding ticket, it says, Go, go to this website, pay this fine. If you don’t want to pay the fine, show up at this court date to contest it. But if you don’t show up to contest it for speeding tickets, then you’re essentially deemed to have admitted, right? So then you have to owe the fine. Right? So if you don’t pay the fine, the court sends notice to the DMV that you haven’t paid the fine, and the DMV can suspend your license

Susan Reff: And driving when your license is suspended is a misdemeanor that does carry jail time. Correct. So 10 steps down the road, you could end up in jail from a fact pattern that was started with a speeding ticket. But if you never drove again and your license is

Susan Reff: Suspended, you’re,

Susan Reff: You know, you’re not actually violating the law,

Erin Wetzel: Right? So if you find out that this situation happened to you and your license was suspended as a result, you can go to the DMV website. You enter your information, your either your Social Security number or your driver’s license number, birth date name, and it tells you what you have to do to clear that. So it’ll say pay the fine associated with this court case, right? You go pay that fine once you pay the fine. The court tells them that you paid it and then you have to pay. Like, I think it’s like a 15 dollars reinstatement fee.

Susan Reff: Yeah. So you pay, then you pay basically the fee to the DMV for all of their trouble suspending your license.

Susan Reff: Exactly.

Susan Reff: And then they reinstate your license. But that is a mess. It is. It is. It is. I mean, sometimes people say, Well, I didn’t. I didn’t even know it was suspended.

Erin Wetzel: Well, but you know you had you should have known you had a fine at some point in time that needed to be paid.

Susan Reff: Yeah. So the moral of the story is if you get a ticket that is just a fine, either pay that fine

Erin Wetzel: Or take the traffic class if you’re

Susan Reff: Eligible. Yeah, or go to the court hearing that’s listed on there

Erin Wetzel: And try one of those things that

Susan Reff: Way. Don’t ignore tickets, right?

Erin Wetzel: Our second question is, does the time of day of your hearing affect the mood of the judge and and then adversely or better have an effect on your case?

Susan Reff: You know, so this is really interesting because. Our court system in in Omaha is set up very stringently with misdemeanor cases that there’s only certain times there’s court and there’s so many cases called in at the same time that the judge doesn’t generally set their own misdemeanor court time, right? And so there’s nine o’clock court and there’s one 30 court, and then there’s a few little exceptions to that here and there. But. You can have court at nine o’clock, but not actually get in front of that judge until like 11 or 11 30, depending on how many cases are in there and how long things take.

Erin Wetzel: Right? And then they’ve been on the bench for two hours and they’re grumpy. Yeah, and hungry because lunch is coming up.

Susan Reff: So, you know, I

Susan Reff: I tend to think most of our judges have a pretty even temperament, meaning whatever they started with is what they’re finishing with. So if they if they’re just kind of ornery people in general, you know, that’s who they’re going to be. I don’t, I don’t I

Susan Reff: Don’t see judges

Susan Reff: In that, those couple hours getting worse. Now, sometimes a judge because usually there’s one prosecutor in the courtroom, right?

Susan Reff: A judge will

Susan Reff: Start to get short with that prosecutor if they feel that they’re not moving things along fast enough or if they’re doing a lot of things that judge views on reasonable or things like that.

Erin Wetzel: I had a case once it was in a criminal case, it was a protection order and it was set for 11 o’clock. But it was with a county court judge because even though protection orders are filed in district court, either a county court or District Court judge can hear the case. And this judge is kind of known for being a little ornery, as you said. And he he looked at us and we started late. Well, first he he said, I don’t I don’t think we need to be here. I think between the attorneys, you can work this out. I’m going to leave and I’m going to let you talk, and I hope it’s worked out by the time I get back. Oh my gosh. So he leaves and we try to work it out and our clients could not come to an agreement. So he came back in and it was about 11 30, and he said, OK, we’re going to have the hearing then. I don’t know. I guess we’ll just do this hearing. I was planning on watching Sweet Home Alabama while I ate my lunch, but I guess I won’t do that now. And we all kind of like each other like, that’s what you do during a lunch break. You watch Reese Witherspoon movies that

Susan Reff: That is hilarious. I mean, I could see, like if there was a big game on or the Olympics or something that’s just like only comes up every once in a while that you really want to go watch when it’s live. But Sweet Home Alabama? I mean, I think it’s a cute

Erin Wetzel: Movie, but it is. You could probably find it on TV at least once a month. You could probably find it on Netflix.

Susan Reff: I feel like that’s not the kind of movie you like plan to watch. You just kind of find it. You’re like, Oh, it’s on, right? I’ll just watch this.

Susan Reff: Yeah, funny. I think

Susan Reff: So. In domestic cases like divorces and stuff, there was a while there where I think it was the Slurpee county judges were setting a lot of their trials for Fridays, specifically, like Friday afternoons.

Erin Wetzel: Oh gosh.

Susan Reff: And it’s like, do you want to be sitting there hearing complex evidence about cases on a Friday afternoon?

Erin Wetzel: Yeah. Even as an attorney, when those hearings get set, because there’s one judge here that sometimes will set like a four o’clock hearing, and I’m like, Who wants to go to a four o’clock hearing?

Susan Reff: I know. I think the and I think a little bit of the motivation for those judges of setting Friday hearings trials is that if you end up settling and they don’t have it, then they have a free Friday, right?

Erin Wetzel: Or maybe they think it encourages people to settle because they don’t want to be in trial on a Friday.

Susan Reff: Yeah. So it stinks if you get stuck having your trial that day. But if you don’t, maybe everyone’s winning because they have that time free then on the calendar. Right. So our third question is how much does it influence the judge? Like, how much does what the person who’s appearing in front of the judge, what they’re wearing affect or influence the judge? So like, if you’re charged with a crime, what should you wear to court?

Erin Wetzel: I think it can influence it if you’re not showing up in something that’s appropriate. I don’t think you need to get totally dressed up like you don’t need to be in a full suit and tie. You certainly can wear that if you want. I rarely see anybody, especially in county court wearing that. Yeah, but I’ve seen a lot of people wearing some really inappropriate things that and sometimes it can lead to the judge choosing that person out and telling them to leave the courtroom for one reason or another.

Susan Reff: Yeah, like there’s just

Susan Reff: Being too casual, but then there’s being inappropriate, right?

Erin Wetzel: So the the one that I think you see the most often is either the sheriff’s deputy or the judge yelling at somebody to take off their hat to take off sunglasses. Yes, pull your pants up. Yes, I’ve heard of cases where a judge has told the person they need to go to the bathroom and turn their shirt inside out because their shirt said something inappropriate or had an inappropriate picture.

Susan Reff: I haven’t seen

Susan Reff: Any judge do that, but. I think that’s a solution. The best is the people who are there for alcohol related offenses that have alcohol T-shirt on or marijuana related offenses that have pot leafs on their T-shirts because that’s very common

Erin Wetzel: In in the midst of COVID like right at the start. There were people that were legitimately showing up in their pajamas

Susan Reff: Or or it

Erin Wetzel: Stuff that bordered on a sweatpants outfit pajamas. Yeah, it was. I don’t know. I feel like it was that like first month or two was just something else as far as what people were showing up to court in.

Susan Reff: So I had a when I was in law school, I did the legal clinic at Creighton and we represented people who couldn’t afford attorneys. And our professor told us that she was doing a trial and her client said, Well, what should I wear to court? And the professor’s response was where would she would wear to church? So like, yeah, maybe you don’t wear your best suit, right? But you’re wearing something that’s a little dressier than what you would wear on your day to day life. So she gets to court and her client is wearing a choir robe because that’s what

Erin Wetzel: She wore to church because she was in the choir.

Susan Reff: Oh my gosh, that’s hilarious.

Susan Reff: That was funny and and funny. I think the next step was underneath was not appropriate for court. I mean, she had clothes on, but they were like shorts and a tank top because I guess the choir robe is really hot.

Erin Wetzel: Yes, I could see that being somebody who was in choir, but we still wore nice stuff underneath. But I have seen people wearing what you described underneath. I recently saw somebody in very short workout type shorts and a crop top. Yep.

Susan Reff: The the amount of skin that starts to show in the summer in court is pretty hot. I mean, a lot higher than I ever would have thought.

Erin Wetzel: Yeah.

Susan Reff: And I wonder if someone is trying to maybe appeal to the judge in that way.

Erin Wetzel: I think some people just don’t realize it’s inappropriate. I think it’s what they would wear for their everyday wear. Yes. And so it’s just another step in their day. I’m going into court in the morning and then I’m going to go to lunch with my friend. I don’t know.

Susan Reff: But yeah, you should. And this is this

Susan Reff: Is not a robe, but wear what she would wear to church. Erin and I both don’t show a lot of skin on a regular basis. So for us, we’re probably more aware of when someone’s dressed, you know, with too much showing.

Erin Wetzel: Yeah, I didn’t even wear stuff like that, like when I was in college and had a nice body to show it.

Susan Reff: Yeah, I didn’t either.

Erin Wetzel: Yeah. Certainly not happening now that I’ve had twins.

Susan Reff: Another interesting story is I had caught on a day when there was a blizzard, and it

Susan Reff: Was one

Susan Reff: Of those mornings where it was like blizzard ing like right when everyone was driving to work when driving to. It was nine o’clock court. And I remember on this day it was so bad and my husband’s work closed and he had four wheel drive. So he drove me to the courthouse and I got there like five minutes before nine o’clock and I walk in and my client walked in and he this was when I was a public defender, so my client was considered indigent and he was wearing like coveralls, snow boots, and he had a stocking cap on and he was wet and he said, I made it. I made like he was so proud of himself. I made it to court.

Erin Wetzel: Oh, he walked. He walked, Oh my gosh.

Susan Reff: And we were standing there talking about his case, and I think it was all worked out everything and it wasn’t going to be that big of a deal. But the prosecutor walked in and immediately chastised my client for wearing his stocking cap, and he and court hadn’t started. The judge wasn’t in the courtroom. There was like five people in the courtroom, and he said, like, you know, take off your hat. This is a court of law. What are you? Don’t be so disrespectful. And I was like, Oh my gosh, you know, many people aren’t even going to show up today, right? And this guy is here. And clearly, you could tell he’d been outside for a while, right? And so that was just one of those moments where I was like, You know, we’re all just people here. Let’s just get through this.

Erin Wetzel: I know I even struggle with that. Sometimes in the winter where you’re having to walk outside and the snow, you’re like, OK, so I want to wear my boots because I don’t want to wear my heels or my flats because I’m going to get super wet feet covered in snow. But then you’re like, OK, so do I carry my heels with me and then change in the courthouse and then carry my boots around? And then it’s always awkward to when you’re the private defense attorney coming into the courtroom. The public defenders and the prosecutors have an office there, and then we’re coming in and like our huge like winter coats.

Susan Reff: Yes, yes, and there’s nowhere to put your coat. Oh, and the courtrooms are like a hundred degrees, I feel like all year round.

Erin Wetzel: Yes, I would say a trick is park in that public parking garage at the corner of 19th and Harney and take the elevator or the stairs down to the bottom floor. And there’s now the tunnel that is fully operational, but shut down for a while during COVID that you can walk through so you can leave your coat and your boots or whatever and your car in the parking garage. Walk through that tunnel and never have to go outside.

Susan Reff: Yeah, I think that that’s a great idea. Or sometimes I stash my coat if I have a bunch of court hearings with like a bailiff that I like in their jury room. Oh, that’s kind of nice. They don’t

Erin Wetzel: Care. That’s a great idea. Yeah.

Susan Reff: Moral of the story is. Ask your lawyer what to wear to court, probably, right? And don’t be so literal like the choir robe, don’t wear the choir robe, you know, but that’s better than a tube top.

Erin Wetzel: Yes, for

Susan Reff: Sure. I think they just went ahead with the hearing.

Susan Reff: I don’t think it was any big deal.

Susan Reff: If you have any questions you would like us to answer on the podcast, please submit those on Facebook or Instagram at Lady Lawyer League. That’s where you can find us. So thanks for listening to our podcast today about criminal cases. Hopefully no one ever needs this information. It’s just helpful to know.

Erin Wetzel: But if you do need the information, give us a call.

Susan Reff: See you later.

Announcer: Thank you for listening to the lady lawyer League Podcast. Be sure to like and subscribe anywhere you get your podcasts, if you would like to learn more about our firm, Hightower-Reff Law, please visit our website at HR Law Omaha.com. We’ll see you next week.