Articles Posted in Current Events

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Is the State ripping your children away from you? It’s an almost unbelievable situation. First you’re dealing with the trauma of being arrested and accused of something you didn’t do, and then all of a sudden you get released from jail and realize the State has decided to remove your children from your custody! You had no say in the matter, and weren’t there to defend your right as a parent. This can happen when your local Social Services Agency files what’s called an “ex parte order” with the local courthouse. “Ex parte” really just means “one party,” as in only one party gets the chance to come in to court and say anything about what’s going on! It’s no wonder that the State maintains such a high success rate in these types of situations, they have no one to argue against them.

If you have an experienced criminal defense attorney however, he would know that your arrest might have resulted in the loss of custody over your children. He would already be hard at work checking into whether such an “ex parte order” was filed against you, and what the terms of the order are. But most importantly, he would be able to prepare a §388 petition! A §388 petition is where someone asks the court to set aside a previous order or judgment because the judge either didn’t have all the evidence at the time he made the order, or because circumstances have changed so significantly that the order is no longer in the best interests of the children.

It’s important to make sure you retain an experienced criminal defense attorney as soon as possible, especially when your children and their well-being are at risk! Make sure you have an attorney who knows all the consequences of your predicament.

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The Fourth Amendment to the Constitution provides that we have the right to feel safe from unreasonable searches, and where a search warrant is issued, that it must be supported by probable cause and be specific. A search conducted without a warrant is presumptively unreasonable unless it meets one of a number of exceptions carved out by the Supreme Court. In 1966 the Supreme Court decided that it was acceptable for law enforcement to procure a blood sample from a suspect over his objections during a DUI investigation. A fear that the blood alcohol content of a suspect diminishes naturally spurred the Court to agree with law enforcement that there was an “exigent circumstance” supporting this very intrusive and uncomfortable search of the suspect’s body.

The Supreme Court has helped restore some strength to the Fourth Amendment of the Constitution and the protections it provides recently. Their April decision in Missouri v. McNeely strikes down the proposition that DUI investigations necessarily meet the “exigent circumstances” exception relied on in Schmerber. The accused in this case was pulled over by a Missouri State Trooper. When he refused to take a breathalyzer on the spot, he was cuffed and taken to a nearby hospital where his blood was drawn over his objections! In holding that his Fourth Amendment rights were violated the Court focuses on the lack of injuries requiring hospital care, or any other circumstances that would cause unreasonable delay in properly acquiring a warrant before drawing McNeely’s blood.

While Missouri v. McNeely doesn’t mean that warrantless blood draws are always unreasonable, it provides for a totality of the circumstances test that allows for your lawyer to aggressively ensure your rights are respected during a DUI investigation. Simply carting you off to the nearest physician and drawing blood against your will is no longer acceptable!

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It has recently been proposed that the legal blood alcohol limit in the United States for driving be lowered to a .05 from a .08. All 50 states now adhere to the .08 BA level. This would be a radical downward departure from the previous level of .08. How much of this push to lower the legal blood alcohol level is political and how much is scientific is up for debate. A .05 is essentially telling the public that you cannot drink anything at all and drive. Two drinks at dinner could put a driver over the legal limit. Are we prepared as a nation to say if you share a bottle of wine at dinner you cannot drive home? The alcohol beverage lobby is actively fighting against this proposal. MADD (Mothers Against Drunk Driving) supports all legislation that increase the penalties for DUI driving and the lowering of the limit to .05.

Experts will opine that the research in the area of alcohol intoxication while driving is what is pushing the limits lower. However, how many of these experts are truly objective? I question how many of these experts work on behalf of political groups or law enforcement agencies? The push to lower the legal limit to a .05 is not unique to the United States. In fact, many other countries have already done it.

Most European countries have very harsh penalties for driving under the influence. For example, while France is known for it’s wines and often is associated with the spirits and love of the fruit of the vine it takes a very dim view of driving over a .05 BA. Mixing spirits with driving is definitely frowned upon. France requires that every vehicle carry a breathalyzer. In order to legally drive in France a breathalyzer must be present in the vehicle. While in England recently, I purchased a small disposable breathalyzer that would satisfy this requirement in France. It was a single use vial designed to alert the driver when he was over the French legal limit of .05.

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The court system has suffered profound funding losses in the past several years. Year after year the legislature cuts the court’s funding until now it has reached crisis proportions. Layoffs of court personnel have caused delays in access to the court by the public. Delays will soon turn into denial of services. Entire courthouses have been shuttered in an effort to live within the funds allowed. Civil trials have been postponed to allow the waiting criminal trials to take precedence in the few available courtrooms.

Funding the court system isn’t very popular with politicians. After all, when politicians overstep their authority where does the public go to put a stop to excess? The courts are the answer to many societal problems. Where does a civil society settle their individual grievances? It’s the court system that is the glue which holds a civilized society together. The failure to adequately fund the court system won’t just deny criminal defendants their Constitutional Rights but will add to the breakdown of society. What will people do when they don’t have access to a forum to solve their problems?

The California State Legislature must find the money to fund the system adequately. That means in their eyes, the court system needs to be a priority, not just a necessary evil. We will all be very much poorer if the recent trend of cutting the court’s funding continues.

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Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a “no nonsense” approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn’t see anything funny about her attitude and set her bail at $20,000.00. She turned and said “adios” to the judge. After turning away, she realized that her bail had been set at an amount she couldn’t make she protested and told the judge “F….You”. Now this, obviously, didn’t sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge “the finger”. This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

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Drones are unmanned flying platforms. From these flying vehicles missiles can be launched, cameras installed so they are aerial surveillance vehicles, and listening devices activated. Developed for the battlefield, they are deadly when used against targets while not endangering their human pilots. The drones are controlled remotely from across the ocean or across the street. The issue for the United States is going to be: are they to be used by law enforcement in this country for surveillance and searches without a search warrant.

Traditionally, a search warrant must be obtained before the area where one has a legitimate expectation of privacy is searched by law enforcement. Probable cause must be established to a judge’s satisfaction that a crime has been committed, is being committed, and that evidence of the crime will be found in the area to be searched. The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. What happens when a drone as small as a hummingbird is used by law enforcement to perch outside your bedroom window and transport video back to the handlers at headquarters?

In the last decade the protections of the Fourth Amendment have been eroded until they seem to be non- existent. Checkpoints are allowed for all types of potential crimes from driving on a suspended license to driving while under the influence. Motorists are stopped, questioned and detained without a shred of probable cause yet the courts have said such governmental intrusions don’t violate the citizenry’s right to be free from unreasonable search and seizure.

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There has been a lot of publicity over the case in Florida where the unarmed teenager, Trayvon Martin, was killed during a confrontation with George Zimmerman, the neighborhood watch member. Florida’s “Stand Your Ground” law has been used as an argument to justify the shooting of this young man. What does California’s self-defense law say about when and how the shooting of an unarmed person can be justified?

Every self-defense case turns on the facts of the confrontation, the history of the individuals involved, the relative size of the combatants, the knowledge, if any, of the history of violence between the participants, and a host of other factors. To hear the commentators pontificate on whether or not the shooting was justified without full knowledge of the facts irritates this criminal defense attorney. No one thinks it acceptable to shoot an unarmed man without any justification at all. However, the commentators in this case seem to give their opinions on the case without any reference to the actual facts but, instead, base their opinions on their political or racial biases. Facts drive self-defense cases from both the prosecution and the defense. The law is usually clear. It’s the facts that are confusing and often contradictory (depending on the source) and applying those facts to the law is the difficult part. If you already have a bias or your mind is made up based on your personal belief then why examine the facts or the law?

The law of self-defense in California is clear. An aggressor in the initial fight cannot later claim self-defense. How do you define who the aggressor is? Is it the one who threw the first punch? Is it the guy who got out of his car and follows someone who he thinks, rightly or wrongly, is suspicious? Many times the role of aggressor is clear. He punched me without any justification. Then I fought back. Then he beat me to a pulp. Well, of course, I am still the victim even though I fought back. The aggressor cannot claim self-defense just because the person he attacked fought back. But, the difficulty in the tough case is what actions led to the actual physical fight? Were threats made, postures taken, which would lead a reasonable person to believe that if he didn’t hit first he would be severely injured or killed if he didn’t act quickly? If so, even a first strike can be justified.

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Alaska Senator Ted Stevens was prosecuted for corruption in office by the United States Attorney’s Office. He allegedly failed to disclose gifts made to him. He was found guilty following a jury trial. The jury based their decision on what was provided to Stevens’ defense team. However, what Stevens and the jury didn’t know was that important statements of witnesses and testimony which was exculpatory (tending to show Stevens’ wasn’t guilty) was not given to the defense.

The lawyers from the US Attorney’s Office knew that their most important witness was having sex with underage girls and part of this witness’ testimony against Stevens was most probably fabricated. Not only did the prosecutors know about these issues with their key witness, which could be used to impeach his credibility, but they covered it up. Not only didn’t they turn the information over to the defense, they hid it from Stevens’ defense team. Apparently, the prosecutors’ desire to obtain a conviction overcame their sense of right and wrong, justice, and ethical duties.

Why is this important? First of all, the defendant’s right to a fair trial hinges on the prosecutor being fair and open with all evidence which could be termed exculpatory. Anything that reflects on the credibility of key witnesses must be turned over to the defense. Failure to do so cheats the system, the defendant in question, and undermines everyone’s faith in the criminal justice system.

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The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor’s purse and the class is asked to describe the suspect. It’s incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It’s happened to all of us.

Stress of an unexpected, even scary, situation can affect one’s perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely “wrong”. Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn’t mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn’t always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a “six pack”. The eyewitness is asked to view the subjects, admonished it’s just as important to exonerate the innocent as to find the guilty person and just because a picture is in the “six pack” it doesn’t mean the perpetrator’s photo is contained in it. When that doesn’t happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent “six pack” ? Isn’t that overly suggestive? Isn’t that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

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Recently, a video was seen on television showing a Los Angeles Sheriff’s Deputy questioning a woman on a train. The woman was facing two deputies. One was a woman and one a man. Both deputies were in uniform and both were substantially larger than the woman they were contacting. During the conversation another passenger began to video the incident. After the woman appeared to be non-responsive, or at least not responding as the deputies would like, the male deputy suddenly elbowed her in the face with a violent and vicious forearm. Upon seeing the passenger videotaping the incident the deputy tried to seize the cell phone. The citizen refused to turn over his cell phone to the deputy fearing the video would be erased or tampered with and the true nature of the incident lost forever.

First of all, a citizen does not have to relinquish his or her video equipment to law enforcement just because they demand it. It is your personal property and without further justification, for example a search warrant, unless the citizen voluntarily surrenders it, your personal property is just that, yours. In this case, I have no doubt that if the deputy had taken possession of the citizen’s camera that video would have been destroyed.

Secondly, in defending people charged with crimes I have learned that the truth of exactly what happened isn’t always reflected accurately in the police reports. Now that video has become so easy and so available to anyone with a cell phone, many times the incidents between citizens and law enforcement are captured on video. One can argue that the video doesn’t capture the whole incident or that it somehow misrepresents what happened or what occurred before the camera was turned on, but one cannot deny the truth that cameras help criminal defendants more than they hurt. I would much rather have a video of the encounter between the police and my client. With video cameras the jury and anyone else can see what really happened and no amount of spin in the police reports will disguise the truth.

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