Delaware Criminal Lawyer Blog

Recently Shane Kiser was arrested and charges with, among other things, attempted rape in the first degree. The investigation alleges that Mr. Kiser was attempting to solicit sex with a young boy over the internet. The interesting thing is that the child didn't exist.

The circumstances alleged in the warrant involved in this case are essentially that Mr. Kiser was speaking to Delaware State Police detective in an internet chatroom whom he believed to be the father of a young boy. They allegedly arranged to meet in a Dover hotel for the sex to occur. Being that the supposed father was a police officer, the young boy didn't exist.

While the thought of soliciting sex over the internet with a young child is reprehensible, is there a substantial step involved in a rape. Should someone be facing a class A felony when there is no victim. I understand that if these allegations are true that the intent was there, but should that be enough?

It is my opinion that it is not the duty of law enforcement to create situations for arrest. I am not arguing that this was entrapment, although I know very little it does not appear to be the case, but why create a crime just to make headlines. If the allegations are true, Mr. Kiser has some issues to deal with, and this may have stopped some future crime, but on the other hand, it may have accomplished nothing.

Yesterday I argued the case of State v. Eley at the Delaware Supreme Court. This appeal was the result of a trial that occurred early in 2009. The backstory of this case is essentially that Mr. Eley was residing in an apartment that he rented, and he allowed his girlfriend, cousin, and sister to reside there. His sister lawfully owned a firearm that she kept at the residence. Mr. Eley is prohibited by law from possessing a firearm.

Mr. Eley was convicted of possession of a firearm by a person prohibited through the theory of constructive possession. Constructive possession is essentially that although something may not be in your immediate possession, you have power over the item and are therefor in possession of it.

This argument was in front of the Chief Justice, Justice Holland, and Justice Ridgely. It is often difficult to start these arguments based on the fact that it is only a matter of time before the justice's will interrupt your argument with questions. This is by the way a godsend, most good criminal defense lawyers tend to be quick witted and are able to answer a question on their feet.

The appeal was separated into two arguments, the first being that there was not enough evidence for the charge to go to the jury, and second that a prosecutor's misstatement of the law poisoned the jury and the trial Judge's failure to correct this made the trial unfair. The argument was spirited and Justice's were more than fair to me and the attorney arguing for the State. I can only sit back and wait until I get a decision, and hopefully my client will be set free.

A disturbing trend has emerged recently in Delaware of seizing cars and money at the time of a stop and possibly arrest. Police can, and do seize these items even though there may not be a clear link between the items seized and the crime that is alleged to have occurred.

Typically these seizures will occur concurrently with an arrest of someone selling drugs. While it is possible that the money or car were earned as a result of some criminal enterprise, it is not necessarily the case. What is most disturbing is where there is no connection whatsoever.

Recently I received a call at my office by a young black gentleman who was stopped in Bridgeville Delaware. This young man was stopped and searched and was not charged with a crime. He was however relieved of approximately $1,500 for which he could not immediately prove how he acquired it. The reason stated by the police for this seizure, he was previously convicted of a drug offense, so it must be drug money.

This gentleman, like others, is not without recourse. However in order to attempt to have his own money returned, he has to file for it in Delaware Superior Court, including paying the filing fee. He would also have to attend status conferences and try the case. This being exceptionally difficult because he was from New York, not exactly convenient for him. He would also be well advised to hire an attorney, however this would cost him more then he would recover should it go to trial and he would be unable to recover for those fees.

Delaware needs to reform these seizure laws and hold these police officers accountable for these armed robberies they perform in the name of the law, and allow for speedy recover of money funds illegally seized.

Frequent readers of the newspaper in Delaware will notice a shocking amount of robberies at local stores. A robbery in the second degree per Delaware law is essentially a theft with the use or threat of force. So who is using force to rob all of these stores in Delaware? Well honestly, not many people.

While a headline with the accompanying felony charge might make good news, it oftens blurs the truth. What typically happens in these cases in stores is that a shoplifter will be making there way out of a store, a theft prevention employee will accost them, and the shoplifter will attempt to break free. This is the force they note when making this charge.

This interpretation takes what may be a ten dollar theft into a violent felony, quite the jump considering the force is only wiggling out of the grasp of a store employee. While charging the crime this way may not be the intent of the law, it does follow the letter of it.

Fortunately many prosecutors will notice that the level of this charge does not fit the actual crime, and are willing to reduce the charge at preliminary hearing. It is important to have an attorney at your preliminary hearing to hopefully resolve the matter at preliminary hearing because if it isn't, it will lead to Superior Court and that prosecutor may not be as willing to reduce the charge, and the stress will remain on the defendant for a much longer time.

Many people find themselves in need of a lawyer for the first time and do not know who to turn to. Interestingly many people may find an attorney by the phone book, or word of mouth, or the internet, and hire the first attorney they meet. This is not a wise way to hire someone who may have a profound effect on their lives.

While word of mouth is better then a blind call to a phone number located in a phone book, it may still not be enough. It is not only acceptable to speak to more then one attorney, it is a good idea. It is important to like your attorney, you do not need to want to go to dinner with them, but you should be able to communicate.

A good attorney will welcome the information that you are speaking to others, because they know that if they make information clear, you will come back. Don't be afraid to ask questions and expect to receive decent answers. A bad attorney will attempt to get your money immediately and not want you to leave the office without signing up.

As you would interview different contractors and get quotes, you should do the same with an attorney.

The Federal Government has recently cracked down on immigrants, legal and otherwise, who are convicted of a crime. The consequences of a conviction can lead to deportation and long term incarceration at a federal prison while awaiting results of an immigration hearing.

Based on a recent United States Supreme Court decision, Padilla v. Kentucky, it is now essential that every non-citizen be advised of his or her immigration consequences at the time a plea is entered.

Many attorneys have heard that a plea under 1 year of incarceration, or a misdemeanor will resolve all issues, this may or may not be the case depending on the charge or the clients criminal history. The many pitfalls or potential expections based on the client require this in depth review.

In my law office I use a former federal immigration prosecutor to assist during the entire process to ensure that my clients are fully aware of any issues that will result from a plea. This in depth review helps to insure that the client doesn't get more then they plea bargained for.

Many people are not aware after an arrest in Delaware for driving under the influence that there are actually two proceedings that commence, the criminal, as well as a civil proceeding. While the criminal proceeding can result in fines, points on your license, and potentially jail time, the civil proceeding can only cost you your driving privileges.

It begins when an arrest is made and the officer hands the driver a temporary drivers license. Upon receipt of this the driver must request a hearing at the DMV within 15 days or their driving privileges will be suspended and they will be required to take a driver improvement class to regain the ability to drive in Delaware. This will happen no matter the outcome of the trial.

An out of state driver may have just been visiting the Delaware beaches and may have no intention of returning and this begs the question, why do they care if Delaware suspends them? The reason an out of state driver should care is that when it becomes time to renew their license in their home state, they may do a check on other jurisdictions and discover the problem in Delaware, and then suspend the driver.

The most important thing to remember about the civil hearing is that you must sign up for the hearing, or have a lawyer do it for you. This will retain your privilege to drive in Delaware until the case has been decided. What is nice about these particular hearings is that an attorney can request the hearing, and appear for the driver, saving the driver, especially an out of state driver, the hassle of coming to Delaware for a hearing.

People often ask what is the point of a preliminary hearing? Well, a preliminary hearing occurs after an arrest for a felony or a narcotic drug misdemeanor. These hearings typically occur between 3 and 10 days after arrest in the court of common pleas.

There are two main components of the preliminary hearing process, the main purpose is to insure that there is probable cause to charge the defendant with the charges in question. The standard for probable cause is extremely low and even just the word of a potentially unreliable witness may be enough. The time to fully explore a witnesses credibility is at trial, not at these hearings.

There may however be a legal basis to have a charge dismissed. I once had a first degree murder charge dismissed at preliminary hearing because the officer charged that the defendant acted recklessly and it was a legal impossibility. The State may also offer a misdemeanor plea offer to resolve cases if the State feels that would be appropriate. They may not offer a felony plea to resolve the case because the Court of Common Pleas has no jurisdiction over felonies.

The other thing that happens at preliminary hearings is the potential for a bond review. The original bond for the charges is set by a justice of the peace who is a nonlawyer judge. In the Court of Common Pleas a lawyer judge reviews the charges and may choose to lower to lower the bond amount making it possible for a Defendant to make bail.

The important thing to remember about the preliminary hearing is that even if a charge is dismissed at a hearing the State still has the ability to take the charge to the grand jury and attempt to acquire an indictment, so the game may not be over for that charge.