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Home >Online Support Ask The Experts >Brandon Baum

Brandon Baum (Attorney and former prosecutor)

How can I fight for a trial? A lot was wrong at the first one

I'd need a lot more information. What was the result of the first trial?  If it was an acquittal (not guilty) then double-jeopardy prevents a second prosecution unless it is a different prosecutorial entity (federal versus state).  If the person was convicted, then the remedy for the defendant is appeal or habeas corpus. If the defendant was convicted of a lesser offense than the prosecution asked for, that is likely final. So much more information is required to give a competent answer.

- Brandon Baum

He shot my son in the head and only got gun charges on carry in public, he has 17 arrest and has a felony when he was a juvenile n faking he is metal,the Medical Examiner said homicide and the Det said He intentionally, knowingly, recklessly and negligently caused death to my son. The prosecutor didn't do his job. I knew my sons killer like six years n they lie from the begin and he ran U.S. Marshal had to bring him in. Two days before my son got a call saying someone wanted him dead. He got rid of the gun. I had three different District attorneys. There are no victim states

If the prosecutor did a poor job and the defendant was not convicted of the proper charge, there is nothing that can be done on the criminal side due to double jeopardy.  There is the possibility of a civil suit for a money judgment, and a local attorney can advise regarding that. The criminal justice system is far from perfect and this sounds like a very unfortunate circumstance in which justice was not served. 

 - Brandon Baum

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I am wanting to ask if anything can be done to change a plea bargain. My 25 year old daughter was murdered in a very, very brutal way in Hays, Kansas in 2004 and the county attorney agreed to a plea bargain, which is what he ALWAYS does. The boyfriend who murdered my daughter only received 14 years, 4 months in prison for reckless homicide, which includes the time he spent in jail. Now this boyfriend who murdered my daughter gets out of prison in two years! Can anything be done to upgrade or change this to a sentence that fits the crime, such as a life sentence, (off the grid sentencing?) I fought for, and we initially had the charges upgraded from intentional homicide to first degree murder when we had assistance from the attorney general’s office. Then, this attorney from the AG’s office with many years of experience, who originally helped the county attorney, died of cancer so another attorney from the AG’s office with little experience helped us. The county attorney wanted a plea bargain and this is what happened without my family’s input! The county attorney sold us out and there is no justice for my daughter, Lindsay! Can we ask for a reconsideration and a re sentencing? The punishment did not at all fit the crime! Can we ask for an upward disposition and show that the judge overlooked the serious nature of the crime? If we can do this, what is the process? Will I need to find some similar cases/case law to show a precedent?  I need some direction on this please.

Unfortunately, the answer is “no.”  Once the plea-bargain is struck and the defendant and State agree to it, it can’t be undone unless the defendant (never the State) can show there were false pretenses or a mistaken understanding.  While the victim’s family should always be consulted before offering a plea bargain in a homicide case, there is no law requiring that to occur.  The family should consider filing a complaint against the prosecutor, if one is warranted.  I do not know whether the plea bargain was the right thing to do – there are cases in which a plea bargain makes sense due to serious concerns whether a jury will convict the defendant of the crime charged.  There are also cases in which prosecutors give too lenient a bargain due to a lack of toughness or confidence.  It is this latter group of cases that are offensive, yet it happens all too often. 

 - Brandon Baum

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Is there a time limit to file this complaint with the attorney general's office regarding my daughter's murder case. The county attorney in Ellis county, Kansas ALWAYS does plea bargains-regardless of the case. He is not a good county attorney so the county attorney is listed in Brandon's second category-those who lack a toughness or confidence. I just need to ask if it is too late to file a complaint against the county attorney when the case happened in 2004. Please advise.

While there is no time limit, the fact that the complaint is being filed so long after the event will probably mean it has little or no impact. There is not a lot that can be done after a plea bargain.  It is a horrible thing that happened to Lindsay and her loved ones, and the less-than-perfect justice system may have failed here. However, I am not aware of any legal avenue to make that right. There are ways for survivors to address the deep sense of grief and unfairness they rightly feel, so that the victim’s life can continue to serve as a positive force. 

- Brandon Baum

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My son was shot and killed February 19, 2016. I was looking on Facebook on Saturday 20, 2016 and all of these post started appearing about RIP Catlin Keck, by this time I am shaking so bad, I called his older brother and asked for assistance in finding out what was going on. I messaged several of his friends and finally got the information he had been killed the night before. His body has already been sent to Little Rock,  AR  for autopsy. We had to call the police /sheriff's department several times before it was confirmed. No parent should find out on Facebook that their child is dead. So my question is,  who leaked his name, sheriffs department,  EMTs, First Responders?? Are they not bound by privacy laws?

While I cannot imagine the horror of learning of the death of a loved one on Facebook, the police/EMTs etc. do not owe a duty of care to the next-of-kin to wait until they have word of the death before releasing it publicly.  You can imagine why — how would the police ever be sure that everyone who needs to know has been notified? Parents, siblings, children, spouse.  The list could go on and on.  I would hope they would do their best to let someone know, but after that, there is newsworthiness in a homicide and the authorities cannot keep that secret.  In the cases I looked at, even where the police wrongly stated that the victim was under the influence of drug there was immunity from liability due to the First Amendment.  

- Brandon Baum

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I have a question that's confusing me. My daughter was murdered in 1992 by her father and he was sentence to life. My question is if he was Sentence to Life, why is he up for parole next year April 2017. I thought Life in prison actually meant Life in Prison. Not knowing he was eligible for parole. Just recently last week he was transferred closer to home on "Good Adjustment. I want to know exactly how do the Parole hearing goes. How soon in advance will I be notified, will i get a copy of his statement of his hearing.

It is unfortunate but our elected officials have changed the ordinary meaning of the word “life” to mean “a time period that is less than life.”  Today, when we want to express the sentencing concept that the person will never be released, we must say “life without the possibility of parole” (sometimes referred to as LWOP).  A sentence of “life” typically means “life with the possibility of parole.”  Each state has different rules, and I am only familiar with California’s laws. In California, an inmate serving an indeterminate sentence of “life,” typically becomes eligible for parole after 16-22 calendar years.  Those numbers are not dictated by statute but rather by the parole board, that decides how long a “life” sentence ought to be. Once an inmate becomes eligible for parole consideration, they must appear before the parole board at a hearing to evaluate whether they are suitable for release on parole. 

In California, to qualify for release on parole, the inmate must demonstrate that “he or she is not a current, unreasonable risk of danger to the public.”  Relevant factors tending to show suitability for release on parole are Factors tending to show an inmate’s suitability include: (1) lack of a juvenile record, (2) stable social history, (3) signs of remorse, (4) motivation for the crime, (5) lack of criminal history, (6) age, (7) understanding and plans for the future, and (8) institutional behavior.  Factors tending to show unsuitability for parole include (1) the nature of the commitment offense, (2) previous record of violence, (3) unstable social history, (4) prior sadistic sexual offenses, (5) psychological factors, including the prisoner’s history of mental problems related to the crime, and (6) institutional misconduct in prison or jail. While this is only for California, I believe other states will apply similar criteria. 

Parole boards are typically populated by “law and order” types, so I would not worry that the inmate would be able to bamboozle a soft-hearted bureaucrat. Parole board members will consider the concerns of the families of victims and the impact that the crime had on others.  Therefore, if family and friends weigh in on the question of release, their wishes will be considered.  The office of the prosecutor that convicted the defendant also has a stake in the matter and should be asked to attend and make its views known. I attended such “lifer hearings” when I was a prosecutor and made sure that the facts of the crime and the wishes of the families were considered by the parole board. 

Consider writing a letter to the parole board expressing your views. You should also contact the prosecutor’s office to make sure that they know about the hearing and intend to send a representative.  If you need help with this, do not hesitate to let me know and I can guide you or make calls for you.

- Brandon Baum

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My aunt and uncle were killed by their only son in Illinois.  My family is now running into challenges because their son is the executor of the estate.  Since he is in jail, we are unable to pay for the housecleaning (where the murder took place) as well as sign documents pertaining to the estate.  The family attorney is NOT helpful.  Do you know if there is an organization or other attorneys who can assist?

First, let me say I am very sorry for your loss. 

Second, you should know that the law in Illinois provides that any person causing the death of another is disqualified as a beneficiary.  The law is 755 ILCS 5/2-6 and a link is here:   
http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075500050K2-6  

I am not an Illinois attorney so I can’t provide you with specific legal advice, but if you send me some specifics of the case (most importantly is the location) and the name of the attorney who is being “not helpful” I can make some inquiries for you.  Most attorneys handling probate cases only work in nearby courts, so that’s why the location matters. 

Hang in there and hopefully POMC can help you get through this. 

- Brandon Baum

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I am investigating my kid sisters murder, and during this I have found that the medical examiner blatantly lied. She was photographed before her death in one set of clothes, her body found in another.. Yet the ME has her in the first set?
There are a startling amount of inconsistencies, the local sheriffs office dispatched one deputy to a fatality, he was green. First fatal. No one from the ME office came.
She was 17, found dead in her 22 yo boyfriends pickup, alone. (Boyfriend was on probation, DUII) I now have first hand statements from the men who found her, that completely differ from that of the officer.
Is there any legal action I can take against these departments? On a 10 year old case?

What a terrible tragedy, which is only made worse by the errors you describe.  While it is virtually impossible to sue a public entity for conducting a negligent investigation, that is something that will vary from state to state so you would need to contact a local attorney to advise you in that regard.  I suspect the time limits for filing such an action have passed. 

However, there is typically no statute of limitations for homicide. Therefore, you may want to contact the various officials (if you haven't already) to see if they will take another look at a "cold case."  Based on my experience, it is most productive to contact them in a non-accusatory manner, pointing out things they may have overlooked.  If the responding deputy was "green" at the time, now he might be a 10-year veteran and willing to take a second look at his early cases. Much of this depends on how you approach them, and if this is something you feel uncomfortable doing, perhaps we could contact them on your behalf.  Feel free to forward any information about the case to POMC's "SOS" or Second Opinion Service (www.pomc.com/sos.html). 

- Brandon Baum

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My family, friends and my sons friends are going to trial next week for the trial of his so called friend who killed him. My question is.. Do you think it would be inappropriate to wear "Justice For" T-shirts at trial in front of a jury? I am sure at least 15 to 25 individuals will be in attendance. I have mixed feelings about this and just wanted your opinion. Thank you for any input

The issue of trial spectators wearing t-shirts or buttons supporting the crime victim is a difficult one, because it pits the spectators’ right to free speech against the right to a fair trial.  I would expect the defense to make a motion to prevent the victim’s supporters from wearing the t-shirts. If they did not, then any complaint on appeal would be waived (given up).  But if they do, and the judge denies the motion and allows the t-shirts to be worn, you are taking a risk. 

In Carey v. Musladin, 549 U.S. 70 (2006), the U.S. Supreme Court struggled with the issue but did not clearly resolve it.  In some cases, courts have found that the wearing of buttons or t-shirts were grounds to overturn a conviction. Norris v. Risley, 918 F.2d 828 (9th Cir.1990) (finding that the wearing of “Women Against Rape” buttons during trial on charges of kidnapping and sexual intercourse without consent deprived defendant of fair trial), and State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449 (W.Va. 1985) (fair trial denied to defendant when several spectators wore MADD buttons at defendant's trial for driving under the influence resulting in death).  Those cases were decided before Carey v. Musladin, so they may not be good law anymore.  However, given that the Supreme Court did not decide the issue one way or the other in Carey v. Musladin, you are taking a risk that a conviction of your son’s killer could be overturned. 

If you do decide to proceed with the t-shirts despite the legal concerns, you can minimize the risk by making sure the shirts should be extremely respectful and non-coercive.  Do that by omitting any words and just including a picture of your son. The jury’s heart always goes out to the friends and family of the victim.  However, the jury might resent any effort to influence them, especially because the judge will repeatedly admonish them not to consider that. Juries listen to judges, not spectators, and when the spectators seem to be encouraging them in a way that is contrary to the judge’s instruction, they do not like it. 

Be sure that your group all knows the rules and does nothing at all that might be considered improper contact with the jury.  That means in the bathroom, in the snack room, on the way through the metal detector, no words or conversation.  A polite, respectful, and humble nod and smile is all that is permissible, and it will reflect very well on your cause.  Jurors take all of that in, so be very clear that you represent the goodness of your son, and you are on the right side of this.  Also, you physically sit on the side closest to the jury (where the prosecution sits).  That’s not required but it is traditional. 

I’m sorry you have to endure this. I’ve sat with many victims’ families through trials and the stress was so much greater on them than me.  Stay strong. 

- Brandon Baum

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My 15 year old grandson was murdered by drowning 4 yrs ago. The father was charged with a capital murder charge and the trial is set for March.  The trial has been changed from a jury to a bench trial. The prosecutor is trying to keep the mother and rest of the family out of  the court room.  Because of our experience with this office we aren't very trusting of them. I want to know if this is usual, if we have any options and if it's better for the case if we are out of the courtroom. Thank you for your help.

I am very sorry for your loss.  Is this the case involving 15 month old Prince?  It is such as sad case. 

The case is no longer a capital case because the prosecution chose not to seek the death penalty in exchange for the defense giving up the right to a jury trial.  I am not sure why that was. 

All adult trials and most other court proceedings are public.  You have a First Amendment right to attend a trial.  In Globe Newspaper Co. v. Superior Court (1982), the U.S. Supreme Court explained that "the First Amendment right of access to criminal trials" reflects the "common understanding" that "a major purpose of that Amendment was to protect the free discussion of governmental affairs."  You cannot be kept out unless 1) you are a witness, or 2) you have been disruptive of the proceedings.  If a family member is a witness, the prosecutor will often put them on the stand first so that they can attend the rest of the trial. If the prosecutor tries to keep a family member out they should raise the issue with the judge. We can help with that if you need it. 

- Brandon Baum

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