Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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Wyoming-Prison.jpgRecently 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.

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Ever wonder just how a case gets filed? Let’s say you and a neighbor get into a shouting match and the police are called. You are interviewed by the police, as is the other guy. You are not cited for anything, nor is the other person. 3 months later you receive a letter in the mail informing you that you have a date to appear in court to answer charges of assault and battery stemming from the incident. How did that happen?

Once the police are called to the scene, whether anyone is arrested or not, a police report is taken. At this point the police officer can make a judgment call as to whether to forward the police report on to the District Attorney’s office. If the officer decides that a crime has NOT taken place he will simply file the report and nothing more will come of it.

If the officer determines that, in his opinion, a crime has occurred, her report will be sent to the District Attorney’s office. That report will land on the desk of the filing deputy district attorney and it will be that person’s job to determine whether he or she thinks a crime has been committed and whether there appears to be enough evidence to prove a crime.

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Stephen Collins, the actor, told the truth to his therapist. He wanted help with a disease. He felt sick and needed guidance. So he told his therapist about touching young girls in a sexual manner thinking it was a very private and emotional moment. He hoped it would lead to greater understanding by him and help in his therapy.

Big surprise! Not everything you tell your psychologist or psychiatrist is private. In fact, the mental health professional was under an obligation to report such behavior to law enforcement. Instead of leading to help, opening up to your therapist can land you in jail. Just ask Stephen Collins after the police arrested him.

A therapist is required to report acts of child molestation to law enforcement unless it’s already been reported and he is willing to rely on that as satisfying his reporting obligation. You might think that this would have a chilling effect on individuals seeking treatment. You would be right on that score.

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The media has reported a rise in the number of prescription drug DUI arrests in recent months. It is important to know that if you take a prescription drug which impairs your ability to drive you can be charged and convicted of a DUI just as much as if you were drinking and driving under the influence of alcohol. With that in mind, millions of us take a popular sleep aid, Ambien.

If you drive your vehicle after taking Ambien and the Ambien has not made it’s way out of your system, you run the risk of being charged with DUI. I recently had a client who had taken Ambien and intended to go to sleep. However, instead of going to sleep, he drove his vehicle to a nearby shopping center and got into a collision. He was arrested for DUI and put into jail. Six hours later he was released from jail while still under the influence. Unfortunately, the cab driver took him back to his car and he attempted to drive home. Of course, he didn’t make it out of the parking lot before he collided with… the cab. The same police officer who had arrested him the first time came to the scene and was surprised he was out of jail because he was still clearly impaired by the Ambien. The client was arrested again and faced not one but two DUI charges.

How to defend a charge of DUI under these circumstances? It was difficult but not impossible. A little publicized fact about Ambien is that out of the approximately 26 million prescriptions that are written every year for Ambien approximately 1% of the people who take it have an adverse reaction. Ambien can cause a person to engage in complex behaviors such as: sleep walking, sleep sex, and sleep driving. These complex activities occur when the person is not unconscious but in an altered state of consciousness. To top it off, Ambien comes with an amnesic affect. That is, the person who does these activities has no memory of it. People have had sex, walked to various locations and even sleep driven and when they woke up they had no memory of their actions.

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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.

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Automated-Cars-The-Future-is-Here.jpgNo 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.

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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.

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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.

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Secret-Bail-Hearing.jpgThink 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.

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It wasn’t too long ago that I cautioned those who were comfortable with law enforcement practices to ask “Who watches the watchers?” On the heels of a nationwide scandal involving the NSA and their blatant violations of our Constitutional rights comes a scandal that strikes much closer to home. 18 L.A. County Sherriff’s deputies working in L.A. County jails have been indicted for multiple counts of federal civil rights violations.

Ranging in rank from deputies to sergeants to lieutenants, in other words, all the way up to supervisors, these 18 deputies are accused of violently beating inmates, detaining visitors against their will, and obstructing investigations into their wrongdoing by hiding away inmate victims from the FBI. In fact, these deputies attempted to intimidate an FBI Agent at her home, going so far as to tell her they were seeking a warrant for her arrest . What may have been the final indignity, among all the indignities suffered by the general public visiting friends and relatives in custody, was the detention and roughing up an Austrian Consulate official attempting to visit an inmate. This event apparently reached the ears of the Federal government when the Austrian government complained about the abusive treatment suffered by their official. Apparently it’s not enough to get action when only American citizens complain of mistreatment and abuse. Let a foreign dignitary get abused and it’s guaranteed action by those in power.

Abuse by the law enforcement agents we trust to protect our citizens and, yes, even our citizens who have been detained either suspected of or accused of a crime can’t be tolerated by a law abiding society. It’s easy to think that anyone in jail should suffer whatever consequences await him or her. But that is dangerous thinking because it is against the principles of our Constitution and basic notions of humanity (5th amendment, 6th amendment, 8th amendment). It reduces our democracy and our civil liberties if we, as a society, tolerate such rampant abuse. We entrust our law enforcement officials with the duty to protect all of us. We must remain vigilant as a society. The FBI and federal government are doing the right thing, but it should never have come to this in the first place. Our state and local communities must demand our law enforcement officials live up to the motto written on the side of their patrol cars, “To Serve and Protect”. It’s time the motto is changed to read, “To Serve and Protect Everyone Equally”.

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Fax: 714.544.4337

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