Expert: Jack Toomey - 8/1/2009

Question
Saturday night my husband went to a pool tournament with a friend. They are both really good at pool and heard about it so decided to go.

He didn't know they served alcohol there it was not a bar. He tries to avoid places that do. He noticed the owner was serving under age guys and they were taking it out the door, which it was after midnight and in our state is against the law to take it out the door on Sunday, let alone selling to 17 year olds. He started questioning people about it. Well that is what started it. The owner got mad and the regulars all ganged up on him. Telling him he was hustling and such. A lady told him not to ask questions or they’d start trouble. He and his friend saw it was getting rough so they walked out. Some guys followed them and blocked their vehicle so they couldn’t leave. He ran off in the woods and they chased him and drug him back. They attacked him, not his friend. Beat him with pool sticks and such. He grabbed a pool stick to protect his body and blocked a pool stick being swung at his face and it broke and hit a car window. The owner called the police and 7 guys all said he started a fight with them. He doesn't start fights but he will defend himself. The owner told the police he was hustling, which he does not do either. He doesn’t drink he and his friend were 100% sober.

Anyway the police locked him up for 12 hours. They never questioned him about anything nor read him his rights. He has 2 counts of malicious damage to personal property (the pool stick and the car window) neither to which he broke, it just happened when he was protecting himself. He got really scratched and banged up and bloody on his face and arms though. He asked the police to take pictures but they wouldn’t.

Now he has to go to magistrate court in a month. He has a fine of $940. I was frank with him and told him to prepare to go to jail for 30 days or ever how long they choose because we do not have the money.

He has 3 witnesses that will testify for him as to what took place but that is a lot less than the ones who will lie about the situation. He doesn't have a criminal record, which may help.

Now to take you back to his history. 5 years ago he had a nervous breakdown and it caused a chemical imbalance. He takes medication for it daily but he is as good as he is going to get and not ever be 100% himself. He gets nervous around people and out in public places. Any stressor can trigger him to have another breakdown and the psychiatrist said if he has another one he may go over the edge and mentally not recover. He cannot go out in public unless he has someone with him and then he must take medication and if it doesn’t work he has to come home.

We’ve never been to court. My question to you is how should he handle this in court. We can’t pay, we have been struggling since he became ill and we lost our business of 10 years and most of our personal property. Right now all we own is each old vehicles that are over 10 years old. We have 2 grammar school age children so I need mine. His barely runs and he just uses it to haul stuff around my parent’s farm mostly or for yard sale set up for me. The house we live in my parents own. He does not get disability, though medically qualified they told us because we owned our own business he never earned enough credits to get it. I sell stuff we have or people give us through yard sales and eBay to pay our living expenses. So if he has to serve time I am scared it may stress him too far like the doctor said. He’s willing to do what he has to do rather he is in the right or wrong. I just don’t know what the worst-case scenario could be or what to do.


Answer
Blake,

Your husband cannot defend himself in court.  I can tell from you have written that he does not have the skill and planning a defense and having to stand up in court to cross examine witnesses would be far from what he is able to do.

Are you telling me that on the night of his arrest he never tried to tell the police his side of the story?  Since the arrest has he gone back and talked to the officer who charged him?  There seems to be a huge contradiction in how this matter happened.  I am not sure that the prosecutors office would talk to him but the officer can only say yes or no.

In the meantime you need to be looking for an attorney.  Everyone says that they cannot afford one but in the end people somehow do.  There even might be an attorneys referral service in your area that could refer you to an attorney who would take the case for free.  Believe it or not these things happen.  Have you tried the public defenders office?  That is what they are there for.  To defend people who cannot afford attorneys but you have to meet a certain criteria as far as income.

When you said that "he has a fine of $940" I think that you mean that the maximum penalty is a fine of $940.  You cannot be fined before you are convicted.  Also let me tell you something else.  The police were not required to advise him of his rights if they did not attempt to get a confession from him.  The only time that the police are required to advise someone of their rights is prior to questioning while someone is under arrest.


I neglected to ask you if you took photos of your husband?  If so please save them because photos of his injuries will be important once this case goes to trial (if it does).