Interviewer: Is there ever a look back period where the new theft charge is treated like a first one again?
Paul Tafelski: Typically it just depends upon the crime. For being habitualized, if you have a gap of 10 years with no priors, then they won’t count an offense as a second offense or more. Otherwise, it’s kind of up to the prosecutor how to charge that crime as to whether or not to consider the priors to enhance the seriousness of the offense or no. But usually, unless you get an expungement of your record so that the prior conviction is obliterated, the court will become aware of any type of prior offense that you have when deciding how to sentence you. Whether it will be a prior theft conviction (which is going to be worse) or just some other type of conviction involving things such as alcohol or drugs, or assault and battery – those kinds of things on your record would still be used against you, to some extent.
A Prior Theft Charge Can Potentially Aggravate the Situation in a Theft Case
Interviewer: Do you ever have clients that have been in that situation where maybe in their youth, like, they had some sort of theft charge and now they’re in that situation again where they don’t know why and how it happened but it happened and he’s like, “I don’t understand it. It happened so long ago and now, it’s biting me in the butt again”?
Paul Tafelski: Yes, it happens all the time. Depending upon the facts and circumstances of cases, we use one type of defense or another. For example, sometimes unintentional fraud cases occur and are committed by people who are otherwise outstanding citizens, professional people, doctors and engineers. People with really good jobs get caught shoplifting stupid items. Usually in those situations, we sit down and try to get to the root cause and usually there’s some kind of emotional issue or psychological abuse in their family.
Emotional or Psychological Issues May Manifest Themselves in a Shoplifting Offense
Sometimes an underlying issue manifests itself with the shoplifting charge – and it’s really not related to a desire to steal at all. So, what we try to do is develop a strategy to show the court that this person is not really trying to steal for the sake of stealing things, but this is really related to some other issue and then develop a plan to address that issue so the court can be comfortable that they’re not going to continue with that behavior. In some of these circumstances there are unique ways to help the client minimize their punishment and often times minimize the charge itself if we’re effective in communicating these issues to the prosecutor.
Potential Mitigating Factors That May be Utilized in a Theft Related Case
Interviewer: Is there any sort of counseling that someone can receive that would help their case?
Paul Tafelski: Yes. Sometimes, if we can identify what’s really going on and why they’re doing what they’re doing, and it’s something that can be helped with counseling, we can put them in touch with the right people to address those problems. At the end of the day, the court wants some kind of confidence that this is not going to happen again. Everybody shows up and says, “Judge, you’ll never see me in court again”, but that doesn’t really tell them anything so we try to look for objective things that we can do, like counseling or obtaining character witnesses, to try and convince the court that this is not going to continue to happen. That can go a long way towards mitigating the punishment.
People Suffering from Psychological Disorders Like Kleptomania May be Charged With Theft
Interviewer: Do you ever see people get into a situation where they start stealing just out of convenience where they say, “Hey, it’s so easy to do this”, and it’s a very minimal amount that they’re actually taking. Then it just kind of starts expanding and growing from there where it becomes some sort of uncontrollable habit?
Paul Tafelski: There are definitely people who have an illness when it comes to stealing. Those are the kind of cases that I’m talking about when I say they will utilize counseling or utilize therapy and different things like that to get down to the root cause. The court is trying to make sure that this doesn’t keep happening and the more we can do that for them the easier they’re going to go on penalizing the client.