Understanding the Legal Process in Homicide Cases

Understanding the Legal Process in Homicide Cases

Being charged with homicide or murder is one of the most serious legal challenges a person can face. The legal process in a homicide case is complex and can span months or even years, with each stage carrying significant implications for the defendant. Josh Tomsheck, a nationally board-certified criminal trial lawyer and former homicide prosecutor, has handled countless homicide cases, providing his clients with the legal expertise necessary to navigate this intricate process.

This guide will help you understand the major stages of the legal process in a homicide case, from arrest through appeal, and how the experienced team at Hofland & Tomsheck can help you or your loved one at each step.

1. Arrest and Initial Investigation

The arrest is the first stage in the legal process. If law enforcement believes there is probable cause that you have committed a homicide, you will be arrested and booked. The initial investigation typically begins immediately after the arrest and focuses on gathering evidence to support or refute the homicide charges.

Probable Cause: Law enforcement must have probable cause to believe a crime has been committed to make an arrest. This could be based on witness statements, physical evidence, or surveillance footage.

Right to Remain Silent: It's crucial to invoke your right to remain silent and consult an attorney as soon as possible. Anything you say during this stage can be used against you in court.

Josh Tomsheck understands the importance of early involvement in the case. His legal team works quickly to investigate the circumstances surrounding the arrest and challenge any weaknesses in the prosecution's initial evidence.

2. Initial Hearing and Bail

Following an arrest, the defendant will have an initial hearing where the charges will be formally presented. During this hearing, the judge will also determine whether the defendant is eligible for bail.

Arraignment: At the arraignment, the defendant is formally charged and enters a plea. In most cases, defendants facing homicide charges will enter a plea of not guilty.

Bail Hearing: In some cases, the court may grant bail, allowing the defendant to be released from custody while awaiting trial. The decision on bail is based on factors like the seriousness of the crime, flight risk, and danger to the community. For serious charges like first-degree murder, bail may be denied.

Josh Tomsheck has successfully argued for reasonable bail in numerous homicide cases, allowing his clients to remain out of custody while preparing for trial. His deep knowledge of Nevada bail laws ensures that he presents the strongest possible argument for release when bail is an option.

3. Pre-Trial Motions and Discovery

The pre-trial phase is critical in shaping the strategy for the defense. During this stage, the defense and prosecution exchange evidence through a process called discovery, and the defense may file various pre-trial motions to challenge the prosecution's case.

Discovery Process

The discovery process involves the exchange of evidence between the defense and prosecution. This includes:

• Police reports and witness statements.
• Forensic evidence such as DNA, ballistics, or fingerprints.
• Surveillance footage or recordings.
• Expert witness reports and medical examinations.

Josh Tomsheck conducts a thorough review of all discovery materials and uses his vast network of forensic experts and private investigators to identify flaws or inconsistencies in the prosecution's evidence. This helps build a strong defense for trial.

Pre-Trial Motions

Pre-trial motions can shape the course of the case and are vital in suppressing evidence or even seeking a dismissal of charges. Common pre-trial motions include:

Motion to Suppress Evidence: If evidence was obtained illegally, such as through a Fourth Amendment violation (illegal search and seizure), the defense may file a motion to have the evidence excluded from trial.

Motion to Dismiss: In some cases, the defense may file a motion to dismiss the case entirely if the prosecution's evidence is insufficient to proceed to trial.

By filing well-crafted pre-trial motions, Josh Tomsheck can limit the evidence available to the prosecution and increase the chances of a favorable outcome for his clients.

4. Plea Negotiations

In many homicide cases, the defense and prosecution may enter into plea negotiations to reach a resolution without going to trial. A plea bargain may involve the defendant pleading guilty to a lesser charge in exchange for a reduced sentence.

While plea bargains can sometimes benefit a defendant by avoiding the uncertainty of a trial, they must be approached carefully. Josh Tomsheck advises his clients on the pros and cons of plea deals, ensuring that any agreement made is in the client's best interest. His experience in negotiating with prosecutors has led to favorable deals, including the reduction of first-degree murder charges to manslaughter or lesser offenses.

5. Trial

If a plea bargain is not reached, the case proceeds to trial. The trial is typically divided into two phases: the guilt phase and, if applicable, the penalty phase.

Trial Phase (also called the "Guilt Phase")

During the guilt phase, the prosecution must prove beyond a reasonable doubt that the defendant committed the homicide as charged. The trial includes:

Jury selection: The selection of jurors is critical, and Josh Tomsheck uses his expertise in voir dire (jury selection) to ensure that the jury is impartial and fair.

Opening statements: Both the prosecution and defense present their cases to the jury. Josh Tomsheck provides a clear and compelling narrative to support the defense.

Presentation of evidence: The prosecution will present evidence such as forensic reports, eyewitness testimony, and expert analysis. The defense will challenge this evidence, presenting counter-arguments and, when necessary, alternative theories.

Closing arguments: Mr. Tomsheck's closing arguments are persuasive and impactful, designed to highlight weaknesses in the prosecution's case and create reasonable doubt.

Penalty Phase

If the defendant is convicted, the trial moves to the penalty phase, where the jury will determine the appropriate sentence. For capital murder cases, this phase may include arguments for and against the death penalty.

During the penalty phase, Josh Tomsheck presents mitigating factors, such as the defendant's mental health, lack of criminal history, or role in the crime, to argue for a more lenient sentence. His success in capital cases has saved numerous clients from receiving the death penalty.

6. Sentencing

If the defendant is convicted of homicide, the court will impose a sentence. Sentencing in homicide cases varies depending on the severity of the charge and depends on the specific jurisdiction where the conviction occurred. For instance: 

Involuntary manslaughter:

• • Ohio: Involuntary manslaughter is punishable by 3 to 11 years in prison if the offense occurred during the commission of a felony, or up to 5 years if it occurred during a misdemeanor (Ohio Revised Code § 2903.04).
  • Georgia: Involuntary manslaughter in Georgia can result in 1 to 10 years in prison if committed during an unlawful act (Georgia Code § 16-5-3).
  • Massachusetts: Involuntary manslaughter is punishable by up to 20 years in state prison or up to 2.5 years in a house of correction (Massachusetts General Laws Chapter 265, § 13).

Voluntary manslaughter:

• • Nevada: Voluntary manslaughter is punishable by 1 to 10 years in prison and a fine of up to $10,000 (Nevada Revised Statutes § 200.050).
  • Pennsylvania: Voluntary manslaughter is a first-degree felony punishable by up to 20 years in prison (Pennsylvania Consolidated Statutes Title 18, § 2503).
  • Michigan: Conviction for voluntary manslaughter can result in a sentence of up to 15 years in prison and a fine of up to $7,500 (Michigan Compiled Laws § 750.321).

Second-degree murder:

• • Illinois: Second-degree murder is punishable by 4 to 20 years in prison, but the court has the discretion to impose probation instead of prison time (Illinois Compiled Statutes § 720 ILCS 5/9-2).
  • Colorado: Second-degree murder can result in 16 to 48 years in prison, depending on the presence of aggravating circumstances (Colorado Revised Statutes § 18-3-103).
  • North Carolina: The punishment for second-degree murder ranges from 15 years to life in prison, depending on the circumstances and prior criminal record (North Carolina General Statutes § 14-17).

First-Degree murder:  

• • California: A first-degree murder conviction can result in 25 years to life in prison, and if the murder involved special circumstances (e.g., multiple victims, use of explosives), the punishment can be life without parole or the death penalty (California Penal Code § 190).
  • Florida: A conviction for first-degree murder can lead to life imprisonment without the possibility of parole or the death penalty (Florida Statutes § 782.04).
  • New York: First-degree murder convictions result in life imprisonment without the possibility of parole (New York Penal Law § 125.27).

And many States have the Death Penalty, such as:

• • Texas: Texas is one of the most active death penalty states, where first-degree murder with aggravating circumstances, such as the murder of a child under 10 or a law enforcement officer, can result in a death sentence (Texas Penal Code § 19.03).
  • Georgia: In Georgia, murder with aggravating circumstances, such as during the commission of another felony, can lead to the death penalty or life without parole (Georgia Code § 16-5-1).
  • Florida: Florida allows for the death penalty in first-degree murder cases where aggravating factors are present, such as a previous conviction of a violent felony or the murder being especially heinous, atrocious, or cruel (Florida Statutes § 921.141).

Josh Tomsheck advocates vigorously during the sentencing phase to ensure that the best defense is put forward and mitigating factors are presented and that his clients receive the most favorable sentence possible.

7. Appeals and Post-Conviction Relief

If convicted, the defendant has the right to appeal the conviction. Appeals are based on errors made during the trial, such as improper jury instructions, the exclusion of evidence, or procedural errors.

Josh Tomsheck is highly skilled in handling homicide appeals and has argued complex matters before the Nevada Supreme Court, resulting in numerous published opinions. His team also includes a retired federal habeas attorney, who has extensive experience arguing before the 9th Circuit Court of Appeals, offering clients strong post-conviction representation.

In some cases, post-conviction relief may be available through a writ of habeas corpus or a motion for a new trial if new evidence comes to light or if there were constitutional violations during the trial.

Why Choose Josh Tomsheck for Homicide Defense?

With decades of experience and a reputation for delivering exceptional results, Josh Tomsheck is one of Nevada's most trusted homicide defense attorneys. He provides comprehensive legal representation at every stage of the process, from arrest through appeal.

Expertise in Homicide Defense:

• Former homicide prosecutor with a deep understanding of both sides of the courtroom.
• Extensive experience in first-degree murder, manslaughter, and capital cases.
• Certified to handle death penalty cases under Nevada Supreme Court Rule 250.

If you or a loved one is facing homicide charges, contact Hofland & Tomsheck today for a no-cost case evaluation at (702) 895-6760. Let us guide you through this complex legal process and provide the defense you deserve.