General Information on Criminal Law

Published on: April 6, 2012

Self Defense In California Means “Stand Your Ground”

by Law Offices of Rudolph E. Loewenstein

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.

Published on: March 29, 2012

Federal Prosecutors Withhold Exculpatory Evidence

by Law Offices of Rudolph E. Loewenstein

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.

Published on: March 16, 2012

Orange County, CA Probation Violations

by Law Offices of Rudolph E. Loewenstein

What does it mean when someone is put on probation? Many times you’ll hear a defendant is put on probation after either a guilty plea or as part of a sentence following a guilty verdict. First of all, probation is a conditional sentence. When someone is judged to be guilty as a result of a plea or guilty verdict the judge can sentence the defendant to the maximum penalty under the law. If that happens there isn’t any more punishment to be had and there isn’t any probation. But, a conditional sentence means that the judge is giving a sentence less than the maximum and in consideration of that the defendant is told he is on probation to the court, usually on certain conditions.

The conditions of probation can be whatever the judge orders someone to do as a result of the conviction. For example, the judge can order the defendant to serve 30 days of community service as a condition of probation. If the defendant doesn’t do the community service the judge can find a violation of probation and impose some or all of the rest of the maximum sentence. It works something like reward and punishment. If you do what you are ordered to do the reward is no more jail time or fines or whatever else the judge might do if you don’t follow through. Punishment comes into play when the defendant fails to live up to his promise to the judge that he would abide by the conditions of his probation. That punishment can be up to whatever the maximum is for whatever crime the defendant was convicted of when he plead or was found guilty.

When a defendant is sentenced to probation, either formal (with a probation officer ) or informal (without) the defendant is asked: “Do you accept the conditions of probation as I have stated them?” If the defendant says yes, he has a contract with the court to accomplish whatever it is the judge has set out for him to do.

Published on: February 21, 2012

Orange County Criminal Defense Lawyer Attends Continuing Legal Education

by Law Offices of Rudolph E. Loewenstein

Lawyers must continue their formal legal training no matter how long they have been practicing law. The California State Bar Association requires lawyers to attend Continuing Legal Education (CLE) classes and monitors or audits lawyers’ records to ensure they have attended the necessary number of hours. This is true even for lawyers, like me, who teach other lawyers about how to defend driving under the influence cases.

CLE is important for two reasons. First, lawyers have to keep up on changes in the law and there isn’t any better way than to attend classes taught by experts in their field. Second, CLE is a great way to continue to be energized about the practice of law. It’s exciting to attend a conference and talk to other lawyers about how they are defending their cases. Attending the conference and listening to other defense lawyers is one thing but discussing your particularly difficult cases with other defense attorneys in a consultation is really exciting. It’s like having a law firm of the best of the best working together to put a winning strategy in action.

I recently attended the Capital Case Defense Seminar. Nearly 1000 other criminal defense lawyers were brought together to learn, discuss, and work towards eliminating the death penalty in California. During the conference Barry Scheck gave a very informative talk on Forensic Evidence. Of course, Barry Scheck has worked tirelessly through The Innocence Project to free many wrongfully convicted innocent defendants. Finding out how he helped to free an innocent man after 26 years of imprisonment in Texas was inspiring. Listening to him speak makes me want to be a better lawyer.

Published on: February 9, 2012

The Supreme Court and Eyewitness Testimony

by Law Offices of Rudolph E. Loewenstein

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.

Published on: January 31, 2012

IN LOS ANGELES, CA, DO VIDEOTAPES OF A POSSIBLE CRIME HELP OR HURT THE DEFFENDANT?

by Law Offices of Rudolph E. Loewenstein

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.

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: 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: December 28, 2011

IN ORANGE COUNTY, CA, WORKING IT OUT AS A VICE COP

by Law Offices of Rudolph E. Loewenstein

Getting assigned to vice as a police officer is tough assignment. Often times the required duties take the officer into dangerous situations. Quick thinking is often a necessity. Tension can build to the breaking point. How to relieve all that tension? The vice cop has found the answer. He gets a massage.

Massage parlors are apparently a hot bed (pun intended) of prostitution activity. Many massage salons are being raided by undercover police officers. Of course, they’re only under cover for a short period of time. But, while being uncovered, I mean undercover, they get their muscles kneaded, their backs oiled, their limbs stroked, hot towels applied, and tired sore bodies cared for from head to toe, all by young women who tend to their needs as though they were real paying customers without a law enforcement agenda. The tax payer dollars paid to find prostitution occurring behind closed doors and under warm towels is truly money well spent. Or is it?

Vice squads are combing the massage salons looking for young women who would offer sexual services in return for money. Negotiations for these services have to be realistic in order to arrest the offending party. In order to enforce the realism, undercover officers of the vice squad must frequent various massage salons and put their bodies through torturous episodes as described above. Once sufficient stroking has occurred, how long and how much is subject to ones’ individual ability to withstand the torture, the “bust signal” can be given. One has to hope that the “gotcha” moment doesn’t come too soon and the bust has to be aborted due to circumstances beyond the undercover officer’s control. In that case, one would assume, the bust does not occur and the tax payer money spent on the massage wasn’t wasted because, well, the officer did get a good massage.

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.