When I began my career as a lawyer in Texas in 1998 before eventually moving to Nevada, I was amazed by how in Texas a defendant had the right to a six-person jury trial even for a minor traffic ticket.  In Texas, if you are charged with any misdemeanor including traffic citations (i.e., running a red light, speeding), you have the right to a six-person jury of your peers.  Now contrast that with Nevada.  Here in Nevada, you have no right to a jury trial for any kind of misdemeanor – period.  That’s right.  Here’s a brief history for you.  Nevada made U.S. Supreme Court history when, in the case of Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989), it held that a defendant charged with misdemeanor Driving Under the Influence (DUI) was not entitled to a jury trial because the offense is “petty”.  A “petty” misdemeanor is one in which the maximum term of imprisonment is 6 months.  So, if you’re charged with a misdemeanor in Nevada and the most you can get under the law is 6 months in jail, that’s considered “petty” and you don’t get the right to have a jury decide your case.  Only a judge can decide your case.  Petty?  Really?  When people think of “petty”, they think of speeding tickets.  How can having your freedom taken from you for 6 months – that’s 180 days, that’s half a year – how is that “petty”?  The fact that a judge, not a jury, can hear a “petty” misdemeanor trial and decide to put you in jail and take you away from your family and job for six months is anything but “petty”.  I’m sure if a judge were sitting in jail for being convicted of a “petty” misdemeanor, he or she would not think it’s so “petty”.  Nevada is one of the only states in the country to deny a defendant a jury trial for a “petty” misdemeanor.  Oddly enough, the Nevada Legislature passed NRS 175.011(2) which allows a defendant to demand a jury trial for a “petty” misdemeanor with 30 days notice before the date of the trial.  Huh?  So how can it be that there is a law on the books that gives you a right to a jury trial for “petty” misdemeanors but you don’t actually have that right?  Come again?  Here’s why.  After NRS 175.011(2) was passed which clearly spelled out that a defendant had the right to a jury trial on “petty” misdemeanors, the Nevada Supreme Court decided that the Legislature didn’t mean what it said.  In Smith v. State, 99 Nev. 806, 672 P.2d 631, (1983), the Nevada Supreme Court acknowledged that the Legislature passed NRS 175.011(2) but said that it really didn’t matter because the Legislature probably didn’t mean to create a “statutory right”.  WTF????  Wait a minute.  The Legislature passed this statute.  The Governor of Nevada signed off on it.  It became law.  But then in 1983, the Nevada Supreme Court decided in effect, “Nah, that’s not what they meant.”  I’m paraphrasing, of course, but talk about judicial activism!  If I, as a criminal defense lawyer, were to argue that a statute passed by the Legislature didn’t mean what it said, I’d probably be accused of violating rules of professional conduct by making a frivolous argument to the court.  Imagine if I were to argue that the mandatory minimum laws on the Nevada books for certain crimes such as drug trafficking which clearly don’t allow a judge to sentence a defendant to probation were laws that the Legislature really didn’t mean what they said when the laws were passed. I’d be laughed out of court for making the same kind of argument.  But that’s what the Nevada Supreme Court decided.

Here’s where I’m coming from.  Let’s go back to Blanton which said that DUI is a “petty” misdemeanor.  The lawyers for Blanton argued that DUI is not a “petty” misdemeanor because a defendant faced, among other punishments, suspension of his or her driver’s license.  Unfortunately, the U.S. Supreme Court disagreed.  But here’s where I argue that Blanton shouldn’t control when a defendant is facing charges for domestic violence.  If a Permanent Resident Alien is facing a domestic violence misdemeanor charge, he or she will get deported if convicted of domestic violence.  As we’ve seen in Padilla v. Kentucky, the U.S. Supreme Court said that immigration consequences are no longer collateral rights and are substantive rights.  So my argument is deportation for a domestic violence conviction is anything but “petty”.  Deportation means a person will be sent back to their foreign land even if he or she has their family in the U.S.  Blanton defines “penalty” as follows:  “In using the word ‘penalty,’ we do not refer solely to the maximum prison term authorized for a particular offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U.S. 1161 (1986).  Blanton v. N. Las Vegas, 489 U.S. 538, 542 (U.S. 1989).”  So, since deportation is a penalty, which is more severe than a 6 month sentence since it involves permanently being separated from your family in the U.S., a legal permanent resident alien should be allowed a jury trial for a misdemeanor charge of domestic violence.  And if a legal permanent resident alien is allowed a jury trial for a misdemeanor charge of domestic violence, then so should a U.S. Citizen be given the same right under the Equal Protection Clause since it would be unfair to give a non-citizen a jury trial right while depriving a U.S. Citizen of the same right to a six-person jury to hear his or her case in a charge of misdemeanor domestic violence.  I’ll keep you posted on my efforts to change the law.  I’m preparing a writ of mandamus, which in Latin means a petition to order the lower court to do something for which it has no discretion.  I’m going to be filing this with the Eighth Judicial District Court in January arguing that it should direct the justice court or municipal court to order a defendant to have a right to a jury trial.

UPDATE: I’ve filed a petition for writ of habeas corpus or alternatively writ of mandamus with the Nevada Supreme Court.  They haven’t ruled on it yet.  If they grant my motion, then all Nevadans accused of domestic violence will get a jury trial.  If they do not, then I will petition the U.S. Supreme Court and ask them to give Nevadans accused of domestic violence a jury trial.  More to come!  As of today, January 8, 2012, the Nevada Supreme Court has not ruled on my writs.  Given their backlog, it will be several months but I will keep you posted once I hear something.

The biggest Second Amendment decision to come down from the U.S. Supreme Court in decades is no doubt McDonald v. City of Chicago, 560 U.S.____(2010).  Your Second Amendment right is your right to bear arms.  For years, no one really knew the parameters of the Second Amendment.  It’s a great decision and finally and clearly tells us that we have the absolute right to defend ourselves and that includes our right to possess handguns in our homes for self-defense.  This right is incorporated through the Fourteenth Amendment down to the states thanks to the McDonald decision.  Of course there are exceptions, and the U.S. Supreme Court in McDonald reiterated that it had no problems with the existing laws prohibiting felons and mentally ill people from possessing firearms.  But curiously, the Court, just at it did in Heller v. District of Columbia, 554 U.S. _____(2008), did not say anything about the federal government’s right to restrict persons from possessing firearms who have been convicted of domestic violence.  Why not, I ask?  It would be so simple for the Court, in dicta, to add language about whether or not the federal government or the states can restrict persons convicted of misdemeanor domestic violence from possessing firearms.  And that’s what the Lautenberg Amendment is all about.  It’s also known as the Domestic Violence Offender Gun Ban.  It makes it a federal crime to possess a firearm where a defendant who has previously been convicted of domestic violence is caught possessing a firearm.  In other words, the Domestic Violence Offender Gun Ban subjects a defendant to federal prison time if the defendant is caught with a firearm in his or her own home — even if that gun is intended to be used only for self-defense.  Now, I’m not in any way downplaying the seriousness of domestic violence in our country or in any way be suggesting that people convicted of domestic violence should be going out and buying guns.  My point raises the question about why the U.S. Supreme Court is purposefully leaving the following question open: Is the Domestic Violence Offender Gun ban unconstitutional in light of McDonald v. City of Chicago?  This issue I predict will be hotly litigated and eventually have to be resolved by the U.S. Supreme Court.  I’ll continue to track how lower courts are ruling on this issue and keep you posted.

Okay.  I’m going to sound like a total geek in this blog post, but I’m so excited with the Padilla v. Kentucky decision that I had to tell someone!  Lucky you!  LOL.  Seriously, this decision is a huge deal.  I can’t tell you how many people have come in to my office for their free consultation before Padilla v. Kentucky was decided on March 31, 2010 and told me how they pleaded guilty to a charge and were not told of the immigration consequences.  Or, they were told that their plea of guilty “may” have immigration consequences.  Well, before March 31, 2010, they were out of luck.  The law used to be that immigration consequences were collateral, meaning that you couldn’t fight your conviction to have it overturned on the grounds that your lawyer didn’t tell you that you were going to be deported for pleading guilty or may be deported for pleading guilty.  All that has totally changed with Padilla v. Kentucky.  Now, people who pleaded guilty before the Padilla v. Kentucky decision have hope!  I have a client who lucked out in this regard.  He pleaded guilty to a charge which would have made him an “aggravated felon” and he would have been deported.  There’s no relief from deportation which means even if your whole family is here and they would suffer if you were deported and separated from them, no immigration judge can let you stay in the U.S.  The immigration judge has to deport you.  In the case of my client, he pleaded guilty to burglary one month before Padilla v. Kentucky was decided.  His sentencing was set for after Padilla v. Kentucky was decided.  My client had a public defender who didn’t advise him of the immigration consequences.  His plea agreement said that his plea of guilty “may” subject him to immigration consequences like removal or deportation.  I argued that the failure to advise by his public defender and the language in the plea agreement wasn’t good enough to tell him he would be deported if he pleaded guilty to the charge of bugrlary.  Fortunately, his family hired me and I got his plea of guilty withdrawn thanks to the Padilla v. Kentucky decision.  Now I’m working on getting him a deal that won’t result in his deportation.  This is such a huge and wide reaching decision because thousands upon thousands of resident aliens and immigrants who pleaded guilty prior to Padilla v. Kentucky may now have hope.

I can’t remember the last time I’ve had so many calls from friends and other lawyers who don’t practice criminal asking, “Did Paris Hilton get a good deal?”  Well, quite frankly it’s a standard offer the District Attorney makes in these types of cases where the weight of the drugs is for personal use.  Even a public defender with a client who has minimal history like Ms. Hilton would have been given the same offer by the District Attorney.  She pleaded gulty to misdemeanor Possession of Dangerous Drugs Not To Be Introduced Into Interstate Commerce.  That’s a misdemeanor drug conviction that is now on her record.  And that conviction did not go unnoticed by Japanese officials who denied her admission in to Japan.  Japanese law generally prohibits people from entering their country who have been convicted of drug crimes.  That’s the thing about pleading guilty to some misdemeanors.  They can come back to haunt you.  Fortunately, every client I have ever represented for the same crime Paris Hilton was charged with has received a dismissal at the end of completing their requirements.  This is not a gaurantee of success and every case is different.  I’m proud of the great results I’ve received for my clients – many of whom are doctors, lawyers, celebrities, CEOs, athletes, and people who hold professional licenses who would otherwise lose them if they were convicted even of a misdemeanor drug charge.  Fortunately, for Ms. Hilton, she really doesn’t have to worry about having a misdemeanor drug conviction on her record since she’s worth several hundred million dollars and probably won’t be turned down if she wants to do another reality television show because of this conviction.  But for the rest of America, a conviction like this tells your employer or future employer that you are a convicted drug user.   Even if you were innocent but pleaded guilty, employers and future employers will speculate if you have a drug problem and may decide to pick someone who doesn’t have a criminal record.  Especially in this economy, keeping your record clean is something to think about when hiring a criminal lawyer to fight for you.

You have the right to remain silent… Sort of.  That’s basically what the U.S. Supreme Court recently held in Berguis v. Thompson decided on June 2, 2010.  The Court found that a suspect who refused to say anything for over an hour had not invoked his right to remain silent.  I have to agree with Justice Sotomayor, who disagreed with the majority decision, who wrote that now someone wanting to exercise his or her right to remain silent must speak and state that he or she wants to remain silent.  My advice is simple – if you are ever interrogated, you must state, “I want an attorney.”  All interrogation by law enforcement must stop at that point.  Don’t be fooled by trained and skilled detectives or government agents who tell you, “We just want to get your side of the story…”  They’re only talking to you because they think you’re guilty!  Don’t be fooled.  Just tell them you want a lawyer.

If you are facing criminal charges in the Las Vegas area, you need an experienced criminal defense lawyer who devotes his practice to those accused of crimes. 

Michael D. Pariente is an experienced trial attorney with years of trial experience. He served as both an Assistant District Attorney and an Assistant Federal Public Defender and has represented over 500 clients facing serious federal and state criminal charges.  Mr. Pariente has fought for and obtained impressive victories on behalf of his clients.  Mr. Pariente devotes his entire practice to criminal defense.  While many lawyers call themselves criminal lawyers, they are really jacks of all trades, and masters of none because they dabble in criminal defense, personal injury, bankruptcy, family law, etc…  Mr. Pariente, on the other hand, only practices criminal defense – period.  That’s one of the reasons why Mr. Pariente is so skilled in getting serious charges such as Kinpapping with a Deadly Weapon and Attempted Murder reduced to gross misdemeanors even when the prosecutor’s case appears strong.  While he is more expensive, it’s important to remember that good lawyers aren’t cheap, and cheap lawyers aren’t good.

Mr. Pariente is fluent in Spanish. If you’re facing criminal charges, you need a lawyer who is an experienced criminal defense attorney. You need Michael Pariente – the aggressive, dedicated, and intelligent choice.