This is the second of a two part series on what to expect if you are arrested in Washington, D.C. Part I, outlined the journey of your case if you have been charged with a misdemeanor. If you have been charged with a felony in D.C. your case will proceed somewhat differently.
First, if charged with a D.C. felony, it is much more likely that you will be arrested and locked-up prior to your first court appearance. It is very rare for a felony defendant to be issued a citation, which allows a defendant to appear in court on his or her own at a later date. Depending on the seriousness of the offense, it is also possible that a D.C. felony defendant will be held in the D.C. jail while the case is pending. If you are held in custody, then your next court date will be within five business days, and is called your detention/preliminary hearing. At that hearing, the government is required to put on evidence demonstrating to a judge that there is probable cause for your case to move forward to a Grand Jury. At that time, your D.C. criminal defense lawyer will also argue to the judge that you should be released while your case is pending. Depending on a variety of factors, the judge may determine that you should continue to be held in jail, released to a halfway-house, placed under the High Intensity Supervision Program, or released on your promise to return to court.
If you are not locked-up, your first court date in your D.C. felony case will simply be your preliminary hearing, without the detention component. Again, the government must put on enough evidence to convince the judge that there was probable cause to arrest you, and that your case should proceed to the Grand Jury. While I don’t know the actual numbers, I always tell clients that there is a 99% chance that the judge will find probable cause. Sometimes I’m not even sure if the judge bothers to pay attention to the hearing before agreeing with the government that probable cause exists.
Once the judge finds probable cause, there is usually a period of time before your case goes in front of the Grand Jury. While the mechanics of the Grand Jury system are beyond the scope of this post, what you need to know is that a group of your peers will be presented with evidence of your alleged crime, and asked to issue a formal indictment against you. The indictment is the official charge against you, and what your eventual trial or plea will be based on. If you have any hope that the Grand Jury will decide in your favor, and choose not to issue the indictment, you shouldn’t. As the saying goes, a Grand Jury will indict a ham sandwich. And they will indict you.
After you are indicted, the court will schedule your arraignment. At your arraignment, your attorney will enter a not-guilty plea of your behalf, assert your constitutional rights, make a formal discovery request, and request a status hearing. Just like in a misdemeanor case, your status hearing will be the court date on which you either enter a guilty plea, or schedule your case for trial. Between your arraignment and status hearings, your D.C. criminal attorney will either be negotiating with the government for a favorable plea deal, or investigating your case to prepare for trial.
If you choose to enter a guilty plea based on the advice of your lawyer, it is highly unlikely that you will be sentenced on the day that you plead. Instead, the judge will order that the probation department do a pre-sentence investigation, and prepare a pre-sentence report. The report is essentially a background check, that includes information about your past criminal history, employment, family life, and future prospects. Your attorney, the judge, and the government will all receive copies of the report prior to sentencing, and the judge will almost certainly base much of his sentencing decision on what the report contains.
If you and your defense lawyer choose to take your case to trial, your will be tried by a 12 member panel of your peers. Trying a felony jury trial requires skill and experience, and your D.C. criminal defense attorney should have both. A happy ending for you and your lawyer ends in the words, “Not Guilty.”