Constitutional Law

Published on: January 4, 2012

A WASTE OF THE COURT’S TIME AND MONEY IN LOS ANGELES, CA

by Law Offices of Rudolph E. Loewenstein

How many criminal cases are in the courthouse that don’t belong there? Plenty, that’s clear from a recent case in the Los Angeles County Court. A homeowner gets cited for his dog running loose. The citation is for a misdemeanor because the County Ordinance carries the possibility of six months in jail for each violation. If a criminal defendant is subject to a jail sentence then certain rights apply.

The United States Constitution guarantees due process, right to a jury trial, confrontation of one’s accuser by the defendant, and the right to remain silent, among other rights. All these rights apply in California when a defendant is facing jail time for a violation of law.

But, surely, the dog owner isn’t facing real jail time for letting his dog run loose….is he? If the law that is violated is a misdemeanor, then all the above rights apply no matter how absurd the possibility of jail time is. Therefore, if the dog owner wants a Public Defender, at tax payer expense, and he is indigent, he is going to get the Public Defender. The Public Defender is an attorney, with clerical staff, office costs, investigators, and with an overwhelming case load of needy clients. Yet, no matter, the dog owner gets a lawyer at government expense.

Published on: September 2, 2011

Orange County, CA Murder Charges Blocked From 1997

by Law Offices of Rudolph E. Loewenstein

Before 1997 if someone was injured by a defendant during the commission of a crime and died more than three years and a day after the crime, he could not be convicted of murder. Recently, a case came before the Court of Appeal that tested this assumption.

Two defendants, Robert Duston Strong and David Michael Knick were charged with murder because they shot a sheriff’s deputy more than 30 years before and he recently died of complications from his injuries. Meanwhile, the defendants had served time in prison for their crimes and completed their sentences for the crimes they were charged with at the time.

The legal question became: could the defendants now be charged with murder because the sheriff’s deputy finally succumbed to his injuries many years after the original crime?

Published on: August 18, 2011

In Orange County, CA, Race Matters In Picking A Jury, Part Two

by Law Offices of Rudolph E. Loewenstein

“A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.” Code of Civil Procedure Section 231.5.

If a party (represented by his or her lawyer) uses a peremptory challenge in an effort to systematically exclude a member of a recognizable group, it is error under both the California State Constitution and the United States Constitution. But, as a trial lawyer, I thought for years that I just wanted fair, impartial, open minded jurors. I thought race didn’t matter if someone was “fair”. I was wrong. Race matters even more than the strength of the evidence or the law given to the jury by the judge.

To date, I have tried well over one hundred and seventy five jury trials. These trials have been for almost every conceivable charge, from assault and battery, to shop lifting, to sexual assault, to burglary to even health code violations, all the way to first degree murder with special circumstances. In each of these trials the jurors swore they would view the evidence impartially, without bias for or against the Defendant, and would apply the law equally as instructed by the judge.

Published on: August 15, 2011

In Orange County, CA, Race Matters In Picking A Jury, Part One

by Law Offices of Rudolph E. Loewenstein

A Defendant has a right to have a jury of his peers decide his fate. Twelve people drawn randomly from the community who come to the courthouse and vote on the guilt or innocence of the accused. The Constitution requires the selection come from a cross-section of the population of the area served by the court.

Source lists are compiled from voter registration roles, driver’s license lists, utility company lists, telephone directories, and Department of Motor Vehicles’ identification card records. Generally speaking, a prospective juror has to be a citizen of the United States, live in California and be a resident of the jurisdiction in which the case is being tried. The juror cannot have a disability which would prevent him or her from judging the case, speak English well enough to understand the proceedings, not be convicted of a felony or of malfeasance in office, not be the subject of a conservatorship, and not be simultaneously serving on a grand jury.

The picking of a jury requires the attorney to decide who shall sit on the jury to decide his client’s fate. The prospective jurors must assure the court that they can decide the case based solely on the law and the evidence. The lawyer looks for body language signals as well as the actual answers to the questions posed to the prospective jurors. It isn’t always as obvious as a rolling of the eyes or a shrug of the shoulders. Many times it is the inflection of the voice or a shifting uncomfortably when answering the questions.

Published on: July 22, 2011

The Human Side of Illegal Immigration

by Law Offices of Rudolph E. Loewenstein

A criminal defense lawyer must always be aware of whether his client is a citizen or not. A case can have huge a huge impact on a defendant’s life if he is not a citizen. Many city and county jails now screen their inmates to determine whether they are in the country legally or not.

Even if one is in the United States legally with a “green card” one can be deported if a conviction is sustained in court. In California, every guilty plea on any misdemeanor or felony requires the court tell the defendant that if he pleads guilty it may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. What this means to the criminal defense lawyer is that he must resolve the case for his client without any jail time.

The fact that a client says, “I can’t go to jail” won’t make it so. Many times the lawyer will do all that he or she can but the law requires jail time. Once the defendant enters the jail system the Department of Immigration Customs and Enforcement (ICE) will swoop in on them and issue a detainer holding them in custody even once the jail time is served. A small offense can lead to swift deportation from the country. The defense lawyer knows what is at stake.

Published on: March 10, 2011

Why I Love Being a Criminal Defense Lawyer

by Law Offices of Rudolph E. Loewenstein

How can you represent “those” people? If I had a dollar for every time I’ve heard that at a party or in a conversation I’d be a rich man. The fact is, “those” people are just like you and me.

Everyone hates lawyers until they need one. I had to laugh when a former Attorney General of the United States said that,”… only the guilty need to invoke their Miranda rights.” He argued that Miranda rights were not needed by the citizens of the United States, that Miranda only protects the criminal element and shields the guilty.

I laughed even harder when he invoked his own Miranda right to remain silent when he suddenly became the focus of a criminal investigation. Suddenly, he found that the government can be overbearing and frightening in its exercise of power against the individual. He found comfort in the 5th Amendment to the United States Constitution when he realized the government was attacking HIM and placing enormous pressure on him.

Published on: February 22, 2011

I Don’t Want This Judge! Now What?

by Law Offices of Rudolph E. Loewenstein

When you don’t like the judge you are in front of you are in trouble. There is a provision for changing your judicial officer but it must be used with caution.

When a defendant doesn’t want a particular judge, commissioner, or referee to hear any matter that involves a contested issue of fact or law, the defendant can challenge him or her under Code of Civil Procedure (CCP) 170.6. This is called a peremptory challenge. A defendant or his attorney states that the judge, commissioner, or referee is prejudiced against him. However, this statement is just that, a statement. A defendant and/or his counsel do not have to prove that the judicial officer is, in fact, prejudiced against him. If a defendant doesn’t like the way the judicial officer looks, an affidavit of prejudice can be filed and the case will be re-assigned to another judicial officer.

There are limits to challenging a judge. For example, if a judicial officer has heard and determined a contested fact relating to the merits of the case it is too late and you are stuck with that judicial officer. This only makes sense since all losing parties would like to challenge the judge who rules against them. With all rulings the court is going to make, at least one party to the law suit is going to be unhappy. Therefore once you have lost a ruling on an issue that goes to the merits of the case you can’t file a 170.6 affidavit. If it were otherwise there would be chaos in the court system with litigants filing one challenge after another against the sitting judicial officer.

Published on: February 15, 2011

But They Didn’t Give Me My Miranda Rights!

by Law Offices of Rudolph E. Loewenstein

The cops just arrested you in Orange County, CA,and never read you your rights. How can that be? We’ve all seen how on television the Right to Remain Silent is rushed through and said by the cops through clenched teeth just as they are slapping the cuffs on the suspect. Everyone has to get their Miranda Rights read to them, don’t they? Not so fast…

Many times the police don’t even ask a suspect any questions. If they aren’t questioning you, then the police don’t need to advise you of anything. In fact, if you want to just start talking and the police aren’t asking any questions then everything you just volunteered is coming into evidence like a freight train running you over in a blur.

The police don’t have to give you your Miranda Rights unless they are interrogating you and you are in custody. If both of these requirements aren’t met then Miranda simply doesn’t apply.

Published on: February 11, 2011

In Orange County, CA, What Happens If A Client Gives A Lawyer Evidence of A Crime?

by Law Offices of Rudolph E. Loewenstein

If a client gives his California lawyer stolen property, does the attorney client privilege shield him from getting prosecuted? This straight forward question, of course, has many answers, depending on the circumstances.

In general, a lawyer cannot knowingly take possession of the “fruits” of a crime. In other words, a lawyer cannot take from a client stolen property, fake identification cards, child pornography or like items. The lawyer can be prosecuted for having these items in his possession just as much as the client. In addition, the attorney-client privilege may not shield the client from disclosure by the lawyer of the source of such items.

Unfortunately, there isn’t a clear test for when the items given to a lawyer are protected from disclosure to law enforcement. However, clearly the lawyer cannot conceal the physical evidence of a crime from law enforcement. A lawyer would be ill advised to take possession of a bloody knife, gun, or bloody shirt from a client since those items cannot only incriminate his own client but once in the lawyer’s hands, the lawyer can become criminally responsible. Once the lawyer does take such items if he doesn’t turn them over to law enforcement the lawyer could face charges of obstruction of justice, evidence tampering, conspiracy among other violations of law.

Published on: January 19, 2011

In California Hiring A Lawyer Isn’t a Sign of Guilt — It’s Smart

by Law Offices of Rudolph E. Loewenstein

Often times I hear, “Well, if I hire a lawyer, won’t it look like I’m guilty?” The clear and simple answer is “No“. It’s just plain smart. Who is telling you that you don’t need a lawyer? It’s law enforcement. Who is telling you that, “I just want to hear your side of the story”? It’s the cops. Who then turns that around against you and tells you, “You’re lying”! Again, it’s those trying to put you in jail.

Who is the one who, even though you are using your best memory, tells you that you’re lying because others have said something different? Guess who, it’s the same people who are trying to put you in jail. Who is allowed by law to lie to you when they question you? It’s the police, that’s who.

Did you know that the police can lie to you when questioning you? They can tell you that they have your DNA when they don’t or that you left fingerprints when you weren’t even there? If some court later finds that what the police did was designed to get the truth from YOU then there isn’t anything at all wrong with them lying through their teeth to YOU.