Current Events

Published on: January 24, 2012

Recent Supreme Court Case Requiring Search Warrant for GPS Device

by Law Offices of Rudolph E. Loewenstein

On January 23, 2012, the United States Supreme Court issued it’s decision in United States v. Jones. The Jones decision is noteworthy because it requires law enforcement to obtain a warrant when using a GPS device. A look at the facts in Jones is necessary to understand the Court’s reasoning.

The Government obtained a search warrant which allowed it to install a GPS tracking device on a car registered to Jones’ wife. The warrant authorized the GPS to be installed within 10 days of the issuance of the search warrant. The agents waited until the 11th day to install the device (after the expiration of the warrant). Then the Government tracked the vehicle’s movements for 28 days.

As a result of the tracking of the vehicle an indictment was issued charging Jones with drug trafficking and conspiracy. The trial court issued a split decision when Jones moved to suppress the evidence obtained by use of the GPS device, stating when the vehicle was parked at Jones’ house it was an illegal search but when it was on the public streets there wasn’t any expectation of privacy and therefore no illegal search. Jones was convicted and appealed.

Published on: December 21, 2011

WHAT HAPPENS WHEN PROSECUTORS WITHHOLD EVIDENCE?

by Law Offices of Rudolph E. Loewenstein

Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn’t commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn’t that DNA exonerated Morton, but that other evidence that was in the DA’s possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton’s innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton’s file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim’s credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim’s credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim’s home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim’s property and used the stolen credit card and it wasn’t Morton, then maybe Morton wasn’t the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.

Published on: December 7, 2011

Sentencing Dr. Conrad Murray

by Law Offices of Rudolph E. Loewenstein

As almost everyone on planet earth knows, Dr. Conrad Murray was convicted of Involuntary Manslaughter in the death of Michael Jackson. On November 29, 2011, Dr. Murray was sentenced to the maximum term of four years in State Prison. How did the judge determine that four years was the appropriate sentence?

The cynical among us might just say that because the deceased was the most famous pop star in the world that the judge would have been crazy to give Dr. Murray anything less than the maximum. Those of that opinion could easily conclude the public expected the maximum and therefore why would the judge do something that would enrage the public and possibly cost him his job in the next election? Those cynical enough to believe that would think the discussion would end right there. But, what did the judge have to do under the law in order to justify the maximum sentence? The answer can be found in the Rules of Court.

The Rules of Court set forth the criteria affecting probation (Rule 4.414). Dr. Murray was technically eligible for probation, no matter how unlikely that might have been as a practical matter. There are two sub-sets to consider: facts that relate to the crime and facts that relate to the defendant.

Published on: December 2, 2011

Dr. Murray Won His Case Before it Ever Started

by Law Offices of Rudolph E. Loewenstein

Dr. Murray killed Michael Jackson. No doubt about it since the jury found him guilty of involuntary manslaughter. He got sentenced to the maximum term of four years. Dr. Murray won his case when he got convicted. How can I say that when he went through a hard fought trial that lasted weeks and cost him and the taxpayers millions of dollars? According to the evidence, he lied to the paramedics, failed to call 911 in a timely fashion, treated his patient with an extremely dangerous drug under circumstances that failed to meet the most minimum of medical standards among a host of other omissions and commissions. So involuntary manslaughter was the charge and guilty was the verdict. Who says the Los Angeles County District Attorney’s Office can’t win the big ones? Who says that the District Attorney’s Office loses one high profile case after another? They got their man here didn’t they? Well, yes and no as far as I’m concerned.

Yes, the LADA got a conviction as charged. But, why only charge Dr. Murray with Involuntary Manslaughter? Why not seek a Second Degree Murder conviction? Why not charge both Murder and Involuntary Manslaughter? Based on the facts as presented by the prosecution, the jury could very easily have found Dr. Murray guilty of Second Degree Murder. Why? The real question is why not?

To find a defendant guilty of second degree murder you must look to CalCrim Section 520 which sets out the elements of Second Degree Murder. To prove this is the real crime Dr. Murray is guilty of the DA needed to prove the following: The defendant committed the act that caused the death of Michael Jackson and when he acted he had a state of mind of malice aforethought. The relevant malice element here is implied. Did Murray’s actions consist of the following: 1. Did he intentionally commit an act, and; 2. The natural and probable consequences of the act were dangerous to human life, and; 3. At the time he acted, he knew his act was dangerous to human life, and; 4. He deliberately acted with conscious disregard for human life. Ask yourself, from the facts of this case, wasn’t this the proper charge?

Published on: November 14, 2011

Orange County, CA Veterans and the Criminal Justice System — Part I

by Law Offices of Rudolph E. Loewenstein

Veteran’s Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran’s military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran’s (defendant’s) service has helped protect the very system he now finds himself in.

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: July 27, 2011

Cuts in the Court System Budget

by Law Offices of Rudolph E. Loewenstein

Recently the California State Legislature passed a budget which called for massive cuts in the funding for California’s court system. These spending cuts will no doubt cause many litigants to have justice delayed or even denied altogether. Hundreds of clerks in the San Francisco County court system have been given lay-off notices.

Many people in today’s environment are unsympathetic. Often commentators speak of the government having too many employees that don’t work hard enough and a few less won’t make any difference. Those talking heads are quite simply wrong.

Most of the court clerks and employees are hard working individuals who have to meet the public on a daily basis, working with them to solve their problems. Those problems come from citizens who are usually unhappy in the first place with being in court. No one enjoys coming to court to pay a traffic ticket, deal with the dissolution of their marriage or contemplate being evicted from their home or business. Yet this is the daily work load of these employees who are being terminated from their jobs. Once these trained individuals are gone who will get the people’s business done?

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.