Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
Published on:

by

Speedy-Trial.jpg

Just imagine this scenario: you get arrested for something, are released from the police station later that day, and never hear anything from the police or district attorney’s office again. Then months or maybe years later you get pulled over for a simple speeding ticket, or try to renew your driver’s license and find out there’s a warrant out for your arrest! This happens all the time! Because our courts are so backed up sometimes District Attorney’s offices simply don’t get around to pursuing and completing a criminal action against you. So without knowing it, you might have missed a court date, or have a warrant for your arrest and are seemingly a fugitive on the run!

But don’t worry! An experienced defense attorney knows that long delays during a criminal prosecution against you can be considered violations of your Constitutional right to a speedy trial. For instance, in California, if the District Attorney waits longer than a year to pursue and complete a criminal action against you, you are entitled to a dismissal! The District Attorney must have very good reasons for delaying in order to avoid this dismissal! Simply saying “we forgot!” or “we didn’t have the time or resources!” won’t work.

This process is known as filing a Serna motion, named after a famous case that established this right. While an inexperienced defense attorney might get caught up trying to argue the facts of your case or settle a plea agreement that is detrimental to you, a good attorney will first file a Serna motion and try to dismiss all allegations against you!

Published on:

by

One of the bedrocks of our justice system is the right to have a fair trial. Part and parcel of this is your right to have a jury of your peers impartially weigh the facts of your case and decide whether they believe you broke the law or not. Sometimes the only way to know whether or not you received a fair trial from a jury is to make sure you get out there and talk to them right after a verdict. A defense attorney or defendant is allowed to interview jurors if they are willing to talk, and this is an invaluable tool in making sure your trial was fair.

Recently I found out through an interview with a juror that my client very likely did not receive a fair trial. This juror was horrified at the behavior of her fellow colleagues. She informed me that some of the other jurors were improperly acting as if they had expert knowledge on certain technical subjects, and were openly persuading their fellow juror members that the experts who testified at this trial were wrong! Not only that, but they were belligerent and forceful! In the end this juror felt horrible for voting the way she did because she felt like she gave in to pressure and someone was wrongly found guilty because of it. She couldn’t believe the bias of her fellow jurors and their willingness to convict someone based on their “intuition” when so much evidence pointed to a different outcome.

Since I’ve been doing this for a long time, I knew instantly that I needed to file a “Motion for New Trial”, and let the judge know that the verdict against my client was improper. But I worry that less experienced or dedicated attorneys would never have caught this huge issue. It takes time and effort and a strong resolve to calmly meet and try to talk with a jury after a verdict, but it’s absolutely necessary to insuring a client received a fair trial by impartial, honest jurors. A good attorney knows that their obligation to a client is a full one, and it continues even after a trial.

Published on:

by

Everyone has heard the term “hung jury”, but what exactly does it mean? In a criminal case in California, the jury verdict must be unanimous. All 12 jurors must agree that either the defendant is either guilty or not guilty. A hung jury happens when the jurors simply can’t reach a unanimous verdict. It doesn’t matter what the split is. It could be 6 jurors for guilty and 6 jurors for not guilty or 11 jurors for one side and only one lone “holdout” juror for the other. Sometimes the jury will come back in and inform the judge that they can’t reach a verdict and the judge will send them back to deliberate further and give them a suggestion as to how to break the deadlock, such as the people who are voting for not guilty argue the other side, and the jurors who want to acquit argue for guilty. In any case, once the judge determines that the jury is not ever going to reach a unanimous verdict a mistrial is declared.

According to The Encyclopedia Britannica, a mistrial is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.

I recently had a driving under the influence trial that resulted in a mistrial. In the end, the jury split was 10 jurors for guilty and 2 for not guilty. To show you how influential fellow jurors can be on each other, when the jury took their first vote, it was 9 jurors for NOT guilty and 3 for guilty. Clearly there were some very persuasive jurors in the room who argued their case with enough passion to change the minds of 7 jurors who initially thought the defendant was not guilty. This is what trial lawyers hope or fear depending on which side they happen to be on.

Continue reading
Published on:

by

Orange county courts don’t have a reputation for being particularly kind or understanding places. If you are looking for compassion and sensitivity to your needs, court isn’t the first place you would look. However, buried deep inside the court system there is one court that proposes to be just that place.

WIT or Whatever It Takes Court, is just like it sounds, a place where compassion is the order of the day, and defendants in the criminal justice system that are lucky enough to be admitted to WIT are given whatever it takes to help them. So, what does it take to be able to participate in this amazing place? The defendant must be diagnosed with both mental illness and substance abuse. It is common for people with mental health problems to self-medicate by abusing drugs and alcohol. Again, it is not uncommon for these people to commit crimes in order to afford their habits. At last there is a place that wants to help, not just punish, them.

Participants have access to mental health programs, drug and alcohol counselors, and a variety of therapists. Each participant is given a Personal Service Coordinator (PSC) who will provide intensive and personal case management. The goal is to restore each person to be a fully functioning and stable member of society. In order to be admitted to this court, a defendant needs to have a criminal defense lawyer who a) knows that the court even exists and b) knows how to get someone admitted. Unfortunately there are a lot of lawyers out there who are ignorant of the court’s existence, so obviously they aren’t going to be getting their clients the help they need. This is another example that all lawyers are not created equal and the quality of your justice depends, in large measure, on the quality of your lawyer.

Published on:

by

Feel like a cop roughed you up or is lying in his police report? Contrary to popular belief, not every person who is arrested is a liar, and sometimes they’re telling the truth when they tell people the cops beat them up or are lying about what happened. That’s not to say that all cops are bad apples, but some certainly do less than their best in serving the public.

In California, a well-trained criminal defense attorney would know to file a Pitchess motion. A Pitchess motion (named after a landmark California case) is where an attorney asks the local police agency to give them any recent records that a cop may have used excessive force or been reported for lying. Such evidence can be absolutely crucial in establishing that you aren’t just making everything up, and also in making sure a jury knows that just because someone is a cop, they are not an angel! Make sure you hire a criminal defense attorney who is in court every day and is well acquainted with the nuances of criminal defense law. Only that kind of attorney can be counted on to remember all of your rights when you need them most!

Published on:

by

Ever find yourself in court and totally confused on where to go? I recently sent my law clerk to file a petition at the Juvenile Court in Orange, CA. Two hours later he called me frustrated and exasperated! While all he had to do was file a petition with the clerk, he ended up being told by 5 different people to go to 5 different places, until he found himself sitting for 45 minutes outside of a courtroom waiting for someone to finally review his paperwork.

What my clerk found out is something most attorneys already know, that the courts are confusing and daunting to those who have never had to deal with them. For instance, the Juvenile courthouse is a large building with over ten stories, and while there are generic signs directing you around, there is no one you can simply tap on the shoulder and ask for help. You are completely on your own! One of the best reasons to hire an experienced attorney is to make sure you don’t get lost in the morass of hallways and court rules that make up our local court system. Even if you think you can make a great case to a judge or jury yourself, make sure you hire an experienced criminal defense attorney so that you can get your day in court at all!

Published on:

by

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.

Published on:

by

Are you being prosecuted for a crime with hidden evidence? It is not uncommon for someone to be charged with a crime but be left wondering “How? What evidence could they possibly think shows I committed a crime?”

Well, the American justice system is founded on a principle of equal disclosure of all evidence, whether it tends to prove a defendant’s guilt or a defendant’s innocence. In California, Penal Code §1054 is the law that governs a process called “Discovery.” Discovery occurs at the early stages of a criminal trial, and requires the Prosecution to declare what witnesses they will be calling, and to turn over any evidence found in the process of their investigation.

For instance, the District Attorney must give you a copy of any police reports written by any officers that were a part of your arrest or investigation! This is important as it allows an experienced defense attorney to critically examine exactly what the police are claiming you did or didn’t do. Any discrepancies can very well lead to a dismissal! Did you say no to a search of your vehicle but the police are saying you gave consent? Well if your attorney knows this he can request a copy of the police cruiser videotape and clearly show your rights were violated.

Continue reading
Published on:

by

Feel like you’re being tried in a kangaroo court? Has someone falsely accused you of committing a serious crime and then disappeared before you have a chance to defend yourself in court? It happens more often than you think. You get accused by someone in a “he said she said” situation of committing a serious crime. That person gives a statement to the police or provides testimony in a preliminary hearing against you. Then they disappear! And the District Attorney suddenly says your accuser is “unavailable” for trial.

An inexperienced defense attorney might not know that you have a Constitutional right to confront your accusers in court. Without a chance to have a jury evaluate your accuser’s statements for themselves you might find yourself in jail for a long time. An experienced defense attorney however would know that a District Attorney has to try a little harder than simply saying “they’re gone!” For instance, a District Attorney is required to subpoena witnesses, and even put out warrants for their arrest if they refuse to testify and instead try to disappear. Even if they flee to another country like Mexico, a District Attorney has a duty to use things like U-Visas to get those witnesses back! A U-Visa is a temporary visa that a state or federal official can grant to a witness who has vital knowledge of a crime being prosecuted in the USA.

Before you get railroaded in court by a system that seems stacked against you, make sure you have an experienced attorney on your side to hold the government accountable!

Published on:

by

Are you trying to get your belongings back after the police took them away? It’s an all too common situation to be in. The police have taken you into custody or searched your house. After tearing through your stuff they decide to keep certain things that are valuable to you and probably don’t have much to do with why they’re there. Well, just because they have taken your belongings the police don’t have the right to keep them! Even if you’ve been arrested or the police had a search warrant, an experienced defense attorney has a good chance of getting your property back for you.

Penal Code §1536 commands the police to keep anything they take from you in their custody. They can’t just dump it off at an auction or say they “lost it”! §1536 also says that the court can order the police to release your belongings back to you at their discretion! An inexperienced attorney may not know that the law entitles you to get your possessions back. An experienced attorney can write a §1536 Motion to Return Property and get the judge to order your property returned to you.

This is just another reason why it’s very important to have the right attorney helping you at all times to make sure your rights and your property are respected.

Contact Information
5031 Birch Street, Suite 100
Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Law Offices of Rudolph E. Loewenstein
JUSTIA Law Firm Blog Design