Current Events

Published on: January 5, 2015

A Cold, Dark Heart in Wyoming

by Law Offices of Rudolph E. Loewenstein

Recently an inmate in Wyoming was released after serving 24 years in prison for a crime he did not commit. Many states recognize the injustice suffered by the wrongfully imprisoned and require the state compensate the victim. When our system of justice fails it can have disastrous consequences for those victimized. The criminal justice system is not infallible, and when it makes a mistake that costs a person most of his adult life there is a method of providing monetary compensation.

In Wyoming the State Legislature decides if the innocent is worthy of compensation and how much. In this case, Mr. Andrew “A.J.” Johnson had a criminal record prior to his being incarcerated for 24 years for a crime he did not commit. You might think that spending 24 years in prison is worth some kind of compensation. You might think that 24 years of your life spent wasting away in a prison cell, when you are innocent of the crime charged, would be worthy of some type of compensation by those who wrongfully took your freedom and liberty away. In Wyoming, you would be wrong.

You see, Mr. Johnson had a criminal record prior to his being wrongfully accused and convicted and put away. He had a record for theft and burglary. In Wyoming that means the legislature does not feel it necessary to compensate him for the 24 years spent in prison. In fact, Mr. Johnson was awarded nothing. He was given no compensation for losing most of his life to a criminal justice system that failed him.

Published on: February 11, 2014

OC District Attorney’s Office Accused of Violating Constitutional Rights

by Law Offices of Rudolph E. Loewenstein

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Recently the Orange County Public Defender’s Office filed a 500 page brief with the Orange County Superior Court alleging that their client, Scott Dekraai, had his Constitutional Rights violated by intentional misconduct by the Orange County District Attorney’s Office. In essence, among other claims, the OCPD says that prosecutor’s office sent a police informant into the jail AFTER Dekraai was represented by an attorney. Dekraai then made incriminating statements to the informant which were recorded on a hidden recording device. All of this conduct by the OCDA was accomplished with the covert assistance of the Orange County Sheriff’s Department.

Who is Scott Dekraai? Well, he’s the defendant who is charged with murdering 8 people in the biggest mass murder case in Orange County history. In such a heinous case, many would say, who cares? Who cares if law enforcement is covertly recording statements he makes to a police informant.

Well, the United States Constitution cares. That sacred document that spells out all of our rights as citizens and members of a free society, is not just a piece of paper that applies only to those who are sympathetic. The United States Supreme Court ruled in 1964 in Massiah v. U.S. 377 US 201, that after an accused is represented by an attorney, law enforcement cannot interview or get statements out of him out of the presence of his lawyer. The OCDA knows this long standing rule of law yet apparently chose to ignore it in the pursuit of a conviction.

Published on: January 31, 2014

No More DMV? No More DUI’s? Could it happen…

by Law Offices of Rudolph E. Loewenstein

No more DUIs? No more car accidents? No more driving on a suspended license? No more rites of passage like getting your drivers license at 16? You mean the DMV doesn’t exist? Well yes, there could be lots of benefits to the concept car coming out. What concept car you ask? Multiple carmakers, including even Google which isn’t even a car manufacturer, are working on; an automated car. No driver needed.

I personally like driving my car. However the era of driving a car yourself may soon be coming to an end. The new automated car can drive itself to the market, the courthouse, grandmother’s house, just about anywhere you would ever want to go. The technology is there. How would this affect the legal profession? We have thousands of laws on the record books that control how you drive, when you drive and where you drive. All of these would really become moot with the automated car. You would program where you want to go and if there was a road closed then the car could reroute you and take you on a different road to your destination. It would be programmed to obey all rules of the road.

The crime of driving under the influence would be extinct. In fact think of the impact on limo companies? None would be needed because you just tell the car to go find a place to park while you go into the bar. On the program Sunday morning the car was parking itself in a parking spot that IT found. Criminal law will be changed forever. Driving laws will become similar to laws that are still on the books about where and how you tie your horse up when you leave it to go to the feed barn.

Published on: January 21, 2014

Can Police Search Your Cell Phone After a Traffic Stop in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

Imagine you are driving along and you get pulled over for a registration violation. The police officer asks for your cell phone along with your drivers license and insurance card. You say what? You have a right to have my cell phone?? The officer says, “oh yes I do. You are not under arrest, you are being given a citation for registration violation. Now hand over your cell phone because I want to search it.” This is essentially the case now pending before the United States Supreme Court. If you have a cell phone then you are going to want to follow this case.

David Riley, a man out of San Diego, was stopped by police for having expired registration tags. The police had suspected him of being a gang member who was involved in a shooting, but they had no evidence to tie him to the shooting. When they saw David Riley driving a car that had expired registration, the police pulled him over. They discovered he had two cell phones and decided to search them. They looked through the cell phones and found that there were photographs on the cell phone. After opening the photos the police found photographs that linked Riley to the gang shooting. At trial, his lawyer argued that the search of the cell phones was illegal and that the prosecution should not be able to use the evidence found on illegal search at trial against Riley. That argument didn’t work and he was convicted. Now the Supreme Court will take up the issue. Can the police search your cell phone anytime you’re given a citation or arrested, without a warrant?

Under the Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on “probable cause,” evidence that a crime has been committed. However, The high court ruled 40 years ago that police don’t need a search warrant to look through anything a person is carrying when arrested. But lower federal and state courts have differed over whether that decision, predating the digital age, should apply to increasingly sophisticated cellphones, including even more advanced smartphones.

Published on: December 30, 2013

Rudolph Loewenstein Invited To Join The National Trial Lawyers Top 100 Trial Lawyers Association

by Law Offices of Rudolph E. Loewenstein

Every year the National Trial Lawyers Association creates a list of the top 100 trial lawyers from around the nation. They look for the best and brightest of minds, those who have achieved the unthinkable in determining to fight for their clients’ best interests. The National Trial Lawyers Top 100 is an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and or criminal defense trial lawyers. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile. The mission statement from the organization is to promote excellence in the legal profession through advocacy training, networking and education of trial lawyers. The National Trial Lawyers also endeavors to keep its members current on business and professional matters of interest through frequent conferences and publications.

I have been recognized for my work and commitment to excellent client representation and have been included in the 2014 selection of the Top 100 Trial Lawyers. If you have been accused of a crime, arrested, or are under investigation, or if you’ve never been in trouble with the law before what do you do? It might be embarrassing to ask friends for a recommendation but how else do you find someone you can trust?

The Internet has become a great tool for finding and evaluating professionals. A recommendation from someone you trust is probably the best and easiest way to go but if that isn’t possible, or if several people are recommended, then a Google check might be your next step.

Published on: December 20, 2013

The Shocking Truth about Secret Bail Hearings

by Law Offices of Rudolph E. Loewenstein

Think secret bail hearings only exist in fiction? Unfortunately the answer is no, even though the 6th amendment to the constitution guarantees everyone the right to a public trial if they’re accused of a criminal act. The United States Supreme Court has long held that this right extends to pre-trial hearings and motions. (Waller v. Georgia)

Bail hearings are no different, as the outcome of a bail hearing directly decides whether or not defendants must remain in custody while they await trial! (United States v. Abuhamra). That’s what makes the recent decision in In Re Carrillo so unsettling. (In Re Carrillo 219 Cal.App.4th 572). Mr. Carrillo was arrested on charges of committing assault with a deadly weapon. At his initial bail hearing, Mr. Carrillo’s bail was set at $90,000. Then, without any notice to Mr. Carrillo, and without giving him a chance to contest, the Judge and Prosecutors held a second, closed door bail hearing. At this bail hearing Prosecutors presented “confidential” evidence indicating they believed Mr. Carrillo was a threat to the community and should post a larger bail. The Judge took the Prosecution at its word, and set Mr. Carrillo’s bail at $1,000,000.

Mr. Carrillo had no chance to contest the information presented to the Judge. He didn’t even know what was presented to the Judge. He just knew that without his knowledge a warrant was issued for his arrest, even though as far as he knew he had posted bail. The Court in his case found this to be a violation of his rights, but in doing so laid out a perfect plan for any Prosecutor wishing to repeat this feat without getting in trouble. What are the magic steps? Well, the Prosecutor has to give notice, but the defendant still doesn’t have the right to be present! As long as he knows the “gist” of what is being presented at this hearing, and as long as the Judge makes an independent determination that the information being presented is reliable, well then it’s just fine to raise a defendant’s bail to $1,000,000! It’s now possible to have secret search warrants (People v. Hobbs 7 Cal.4th 948), anonymous juries (People v. Thomas 53 Cal.4th 771), and secret witnesses (US v. Jesus-Casteneda 705 Fed.3d 1117). With this new attack on the fundamental concept of presumption of innocence, it’s no wonder the average defendant thinks he faces a presumption of guilt regardless of what the Constitution says.

Published on: November 15, 2013

Los Angeles, CA Justice DENIED

by Law Offices of Rudolph E. Loewenstein

On November 8, 2013, the Los Angeles Times had a headline that read, “34 year wait for justice is over”. The defendant, Kash Register, was convicted of murder in 1979 on the testimony of a woman named Brenda Anderson. Register spent 34 years in State Prison maintaining his innocence. He couldn’t be paroled because he always maintained his innocence. He refused to admit to a murder he didn’t commit. The Parole Board is programmed to deny parole to those inmates who don’t admit their crime because without an admission, how can the inmate be rehabilitated?

So, Register languished in prison, denied his freedom, the basic human rights of American citizens, but not the love of his family, who believed in him from the beginning. Along came Loyola Law School who diligently sought out the truth.

What truth were they seeking? The truth that the prosecution had failed to disclose to Register’s defense attorneys that Brenda Anderson’s sister had told LAPD before trial that her sister was lying. Brenda Anderson’s sister told the police in 1979 that the man she had seen commit the murder was not Register.

Published on: November 12, 2013

In Orange County, CA, What Happens When the Police or Prosecutor Hides Evidence?

by Law Offices of Rudolph E. Loewenstein

Subvert the criminal justice system. Lie to the judge. Hide evidence. Sounds like a defendant in a criminal case doesn’t it?

Who else could it be? If it isn’t the criminal defendant, it must be the much maligned criminal defense attorney, right? You know who he or she is, right? He’s the one who you love to ask at cocktail parties, how can you represent those guys (defendants in a criminal case)?

Well, it’s not either one of the above. In the case of the State of Texas against Michael Morton, the liar was none other than the prosecutor, Ken Anderson.

Published on: October 28, 2013

Who Watches the Watchers in NSA Surveillance?

by Law Offices of Rudolph E. Loewenstein

Is the government growing a conscience? Our previous blog post discussed the NSA’s very nasty habit of watching everything we do without warrants or permission, and then turning over their information to law enforcement agencies. Well when we asked “who watches the watchers”, it seems like we may have found an answer. The New York Times has reported that the Solicitor General for the United States, Donald Verrilli Jr. has voiced strong opposition to such tactics.

Typically there is no way to know if evidence gathered against you comes from the NSA’s warrantless surveillance program. You can’t fight what you don’t know, so even if the government has illegally gathered evidence against you you’re out of luck. But the Justice Department is set to inform certain defendants that the evidence gathered against them may have come from warrantless surveillance. Apparently Mr. Verrilli is extremely troubled by the actions of the NSA and the Justice Department and doesn’t believe it’s legal or right. Imagine that! Hopefully this is just a small step towards shoring up our Constitution and the rights it affords us.

Published on: October 23, 2013

Does NSA Surveillance Affect You in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

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How does the NSA surveillance scandal affect you personally? Most people take the attitude that the NSA snooping into everyone’s lives is harmless if you have nothing to hide. The problem is sometimes we don’t know we’re hiding something! There are thousands upon thousands of laws, and it’s impossible for even the most experienced lawyer to know all of them. Everyone at some point in time has made a harmless mistake and broken a law. Merge into another lane without using your blinker? Well it’s not too farfetched to think that in a surveillance state even these small actions might eventually result in harsh punishment and prosecution. But the NSA can’t arrest you! Plus they’re only interested in terrorists! What a waste of time it is to get worked up over this!

Well, while the NSA can’t arrest you themselves, it is becoming apparent that whatever they learn about your life gets passed along to law enforcement. You might be wondering how this is constitutional! They can’t just snoop on you and violate your constitutional rights and then arrest you can they? Well, it turns out that law enforcement agencies use something called “parallel construction” to make it legal.

Parallel construction occurs when the NSA gives a law enforcement agency a “tip”, and this law enforcement agency uses this tip to invade every aspect of your life until they can construct a legal way to introduce that evidence in a case against you. Right now the Drug Enforcement Agency is the biggest culprit. But even the IRS is in on this action! This is the scariest part! Where does it stop? Will the NSA give tips to local and state law enforcement? It’s a brave new world when your government can spy on you at will illegally, and then help law enforcement agencies arrest and convict you legally. So whenever someone says they have nothing to hide, ask them “Who watches the watchers?”