Articles Posted in General Information on Criminal Law

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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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The recent shootings in Connecticut have been used to call for gun reform. The critics of the Right to Bear Arms guaranteed by the 2nd Amendment are calling for the abolition of gun owners’ right to own firearms. Restrictions on gun ownership are sought in an effort to curb gun violence. These calls are in response to the horrible crimes which have been perpetrated on innocent children and bystanders in our schools and public places. Guns are portrayed as the reason for the violence. I would contend that gun control in the form of restriction of the sale and possession of automatic weapons and weapons that contain multiple shot magazines are already regulated and can be even more restrictive. Not because they are the cause of these shootings, but because no law abiding citizen needs to own a firearm that can fire many times without reloading. We don’t live in a war zone and don’t need to be equipped to do combat. However, guns are not the inherent evil at work in these tragedies. Untreated or under treated mental illness is.

Almost every mass shooting that has been committed in recent memory has been perpetrated by a gunman suffering from mental illness. “Socially awkward” is a phrase used in the press because it is politically correct. In reality, it appears that it is a euphemism for mental illness. Many times individuals who have significant mental illnesses are being under treated or not treated at all. People suffering from mental illness often don’t want to take their medication because of the effect is has on them. Medication also brands the person taking the medication as mentally deficient in some way. Negative social stigma is a deterrent to taking medication or even being diagnosed.

Society has chosen not to invest in mental health for our children or adults. Many of the homeless people on the street suffer from a mental illness. State legislators have chosen to close mental health facilities in order to save money. Instead of saving money, this policy choice has cost more money and lives. We must reexamine our priorities and commit to better funding to meet the mental health challenges of our people. Treating the symptom, such as gun violence, is not the answer. We need to treat the cause, mental illness. If we find more treatment for those afflicted with mental disease we won’t need the draconian gun control measures currently advocated as “the solution”.

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The police reports pain an ugly picture. They clearly show that the Defendant is guilty. What to do? How does your attorney get the District Attorney to reduce or dismiss the charge against you? The experienced trial attorney tries to paint a picture that accurately shows the client for who he is and not just for what he did. Many times good people do something ill-advised or out of character. These “bad judgment” moments can have devastating life-long effects on people who deserve a second chance. How to get the client that second chance?

Most important is the charge against the client. Sometimes no matter who you are, or the devastating effect on your future, or the fact that even millions depend on you, the result is mandatory if you are convicted. However, very often these facts can and do make a difference to a prosecutor who is seeking to do justice and not just gain a conviction. How to reach that prosecutor is the key.

Reaching a just outcome requires the defense attorney to paint a picture. Depending on the circumstances it can be a picture of the facts of the case and establish the facts that lessen the responsibility of the defendant. It might involve proving that there were contributing factors which were not the fault of the defendant or showing the prosecutor the facts dictate the client deserves consideration. The second prong of the defense attorney’s job is to breathe humanity into the ink on the police report from the client’s perspective. The trial attorney needs to show the prosecutor the defendant is human. He is a good person, perhaps he has done community service (before or after the crime), been a role model in the community, or won awards in business and the disastrous effects a conviction will have on his individual future.

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A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn’t have a “one size fits all” formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side’s lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a “good” jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It’s not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge’s instructions; it’s about finding the juror who will listen to your side’s facts and argument and believe the “right” thing to do is vote for whatever side you, the lawyer, is advocating.

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Who hasn’t heard that lawyers like to hear themselves talk? Lawyers like to talk. Lawyers like to think they give brilliant oratory. Lawyers are “wordsmiths” fashioning eloquent arguments for their clients to receptive juries that don’t even need to discuss the facts or the law in deciding the fate of the defendant after listening to the brilliant words of the lawyer. Well that part is just on television. The fact is, lawyers do like to talk and do like to listen to themselves talk. Many lawyers are their own best fans. But, many lawyers fail in the listening to others department.

Listening to our clients is a skill that is under-appreciated and underutilized by most lawyers. Our clients tell us what happened in their own words. They were there. They know. The client may have expertise in an area that the lawyer doesn’t. A great lawyer knows when to be quiet and just listen.

Recently, two separate instances proved the value of listening. First, the client kept saying that he didn’t confess like the police report says he did. The client’s previous lawyer had obtained but not listened to the client’s recorded statement to the police. The lawyer suggested he take a plea deal for six years in prison because of the confession. When the lawyer wouldn’t listen, the client changed lawyers. The first thing I did was to listen to the client and the second was to listen to the recorded statement. The police reports were just simply not true. The client hadn’t confessed at all. In fact, the client had adamantly denied any involvement in the crime. Once this was brought to the attention of the prosecutor the case fell apart and it was dismissed. The second case involved the client with the “spotty” record. He said he wasn’t at the crime scene when it happened. He told this to the police but was confused about the date since it occurred sometime prior to his interrogation. Careful listening on my part led to even more careful investigation. Interviewing independent witnesses, finding time sheets that confirmed the client’s alibi, and bringing these items to the attention of the prosecutor also led to a dismissal of the “strike” charge against the client.

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When the police arrive at a crime scene the yellow tape goes up securing the scene. We’ve all seen it on the television show, CSI. In fact, according to CSI Los Angeles, Miami, Navy and everywhere on television it’s the science of the crime scene investigation which solves the crime. The rest of the actors are just the means to the end. It’s the DNA, fingerprint analysis, and countless other scientific advances that lead to the solving of the crime. But, what happens to the evidence once it’s collected?

It’s the Crime Scene Investigator’s job to collect the evidence. This evidence can be identified by the first responders, the detectives at the scene, and the CSI people themselves. Some of it is located simply by drawing a chalk mark around it and some has to be found by means of instruments. Once collected it’s placed in collection containers. These can be as simple as paper lunch sacks. For example, bullet casings are often placed into paper lunch sacks. The container is then closed and secured with evidence tape, initialed by the collector, and placed into an evidence locker for later analysis or use in court.

But, what happens if the evidence is collected and then given back to the victim? For example, if a wallet is stolen, and the culprit is found a short time later with the wallet often times the police will give the wallet back to the victim. Sometimes photographs may be taken to preserve the look of the item but the possibility of forensic analysis is lost forever to the suspect. DNA analysis is no longer a possibility once the item is returned without any attempt to preserve the item for analysis.

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There are some cases that can be subject to a resolution process called Deferred Entry of Judgment. This is commonly referred to as DEJ. The process involves the Defendant pleading guilty to the charge(s), continuing sentencing, undergoing some type of education, and staying out of trouble for a specified time. Upon completion of the education and passage of required time, the Defendant can withdraw his plea, enter a not guilty plea, and the case will be dismissed. Additional requirements can be added to the process depending on the circumstances. For example, the Defendant can be required to provide a DNA sample, undergo drug testing, perform community service and anything else that might be appropriate under the facts and circumstances of the case.

DEJ is of great benefit to the Defendant. While it requires a guilty plea there isn’t any conviction because sentencing has not occurred. As long as the sentencing is postponed and does not take place there isn’t any conviction and the guilty plea does not stand as long as the DEJ is finished. However, the major down side to DEJ is the fact that if the Defendant does not complete the ordered tasks, the court will proceed to sentencing and the conviction is entered. No further proof requirement is needed since the guilty plea has already been entered and the court can simply proceed to sentencing.

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Ambien is a commonly used sleep aid. What isn’t commonly known is that there are a significant number of reported cases of people “sleep driving” after taking Ambien. In the recent case of People v Mathson a California Court of Appeal, for the first time, has ruled on a defense of sleep driving while under the influence of Ambien.

Mr. Mathson took Ambien at bedtime and later was found guilty by a jury of driving under the influence of drugs, a violation of California Vehicle Code (CVC) Section 23152(a). On appeal, the Court noted that voluntary intoxication is not a defense to driving under the influence. However, if after voluntary ingestion of a drug such as Ambien there is an unconscious act, like sleep driving, is it a crime? The Court stated the non-controversial rule that involuntary intoxication is a defense to CVC 23152(a). The controversial part of the ruling is that the Court suggested there be a jury instruction that states: “A person is involuntarily intoxicated if he or she willingly and knowingly ingested a prescribed drug and did not know or reasonably could not have known of the drug’s intoxicating effects”.

In essence the Court ruled that if the Defendant was aware or should have been aware of the side effect of Ambien, sleep driving, then it isn’t involuntary intoxication (which is a defense). However, if he didn’t know or have reason to know that Ambien could cause sleep driving, then even though Mathson voluntarily took the drug it was involuntary intoxication which is a defense to driving under the influence. Many factual differences occur in every case and while it is now clear that sleep driving can be defended successfully every case will turn on it’s own particular facts.

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Many of our veterans have returned from service to our country with mental and physical disabilities. Sometimes these service related disabilities result in criminal charges being filed. The search for justice in the criminal justice system for our veterans can be difficult. Many prosecutors give lip service to the returning veterans’ ailments but simply dismiss them as not relevant to the criminal charges before the court.

The key to getting the prosecutor to appreciate the veterans’ symptoms is to provide medical and military documents which substantiate the underlying condition(s). First the defense has to prove to the prosecutor that the veteran is, in fact, a veteran. Then the question is, so what? The answer to that question is that a veteran deserves special consideration because of the service to the country. To translate that fact into action means the defense has to prove to the prosecutor the veteran served and did so honorably. But even more important is the need to prove the criminal conduct is the product of the service.

Crucial to the defense of any veteran charged with a criminal offense is meeting the challenge of showing that whatever disability the veteran is suffering from is the reason he or she committed the crime. Veterans of combat may be diagnosed with PTSD (Post Traumatic Stress Disorder) or TBI (Traumatic Brain Injury). Even after a diagnosis, the key is to prove that the criminal act was caused by the disability. For example, the veteran wants to kill himself. So he takes drugs and intends to kill himself by driving into a wall. Unfortunately, he hits another motorist first injuring that motorist. Why did he want to kill himself? If it’s a combat related mental issue, it can make a difference to a prosecutor who understands the conduct. If it’s a theft case where the veteran steals because of his mental disorder it has to be explained as such. It is the defense attorney’s job to make sure the prosecutor understands this connection.

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Many prosecutor’s offices, including the Orange County District Attorney’s Office, now have special Deputy District Attorneys who are designated to prosecute Driving Under the Influence of Drugs cases. The violation of California Vehicle Code Section (CVC) 23152(a) can consist of a combination of alcohol and drugs causing impairment in a driver’s ability to drive. Increasingly DUI charges are being brought against people who have not consumed any alcohol but are solely accused of driving under the influence of drugs.

At first, the image that comes to mind is that of a drug crazed driver who is under the influence of an illegal substance such as methamphetamine or heroin. However, the District Attorney’s Office is targeting not just those drivers but the driver who has taken prescription medication. A driver who takes a prescribed medication that impairs his ability to drive his vehicle safely is also subject to prosecution for DUI. A note written on a doctor’s prescription pad is not being taken as a defense by prosecutors. Even doctors themselves are being prosecuted for DUI if their blood is found to contain prescription drugs following an arrest for DUI.

Many medications commonly warn of possible driving impairment after ingestion. However, the fact that a driver has consumed the medication and it is found in the blood is not the end of a driver’s defense to a charge of DUI. The blood must be tested to determine if the level of the prescribed drug in the blood is above the therapeutic level. If it is above the therapeutic level it can lead to the conclusion that the symptoms the driver is exhibiting is the result of the medication. However, even that is not the last word in the defense of DUI drug cases. If a driver has taken the medication found in the blood for some time or suffers from a severe form of whatever the medication is prescribed for, the above therapeutic level amount may be explained as not being the cause of the symptoms the officer is seeing at the time of the arrest.

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