For the Defense

SF DA Nancy Tung Has History of Distorting Evidence

2011-02-05T12:25:00.000-08:00

I discovered the following account of previous misconduct on the part of Tung in an article written by Jack Cashil, who also wrote "What's Wrong With SF," which I haven't read. You can find the article which I have reprinted at http://www.cashill.com/california/sf_da.htm.

"In reading the parole hearing transcript for Steven Nary, I sensed the depth of the injustice about to unfold when San Francisco Deputy District Attorney, Nancy Tung, described Nary’s “victim,” 53 year-old Juan Pifarre.

In the way of background, Nary, an 18 year-old U.S. Navy airman at the time of the incident, has spent nearly 14 years in prison for killing Pifarre, his would-be rapist.

Pifarre, Tung testified under oath, “was an Argentinean immigrant . . . a senior financial analyst for the city of San Jose and a publisher of Horizantes, a Spanish language news periodical. He was an advocate in the San Francisco community for the Latino community . . . an advocate for low income and impoverished people and also for immigrants, populations that don’t often have a voice . . . and yes, he was gay.”

If the San Francisco DA’s office were interested in pursuing justice, and not in pacifying the city’s gay and Latino communities, Tung would have told the truth about Pifarre.

Yes, Pifarre was an immigrant, an illegal one, who got a green card through a sham marriage. Yes, he worked for the city of San Jose, but it was something of a no-show job as he was also working full time in San rancisco 50 miles away.

Yes, Pifarre was gay, but he was an angry coke-head and gay predator, who prowled co-ed dance clubs looking for vulnerable prey.

Tung also failed to mention Pifarre’s serious priors for unwanted sexual advances. As she knew, his one time attorney and neighbor, Ralph Johansen, testified at Nary’s 1999 trial that he had once defended Pifarre on an assault charge.

Apparently, Pifarre had grabbed the crotch of a 19 year-old male and asked for oral sex. This led to a fight in which both were charged with battery.

Johansen had lived downstairs from Pifarre. Many a night he saw Pifarre come home with what appeared to be young military types.

Often he heard “lots of noise, lots of screaming,” and at least once he heard a full-blown fight that culminated in a fist going through a window. Tung mentioned none of this.

Although generally fair, the presiding commissioner Jack Garner has apparently lived in California too long. After Nary confessed that he had frequented prostitutes, Garner asked, “On the morality scale . . . what was so different about the situation with Juan that caused you to do what you did?”

Nary’s appointed attorney, Gertrude Akpenyi, should have jumped up and shouted, “Outside of San Francisco, there is still a qualitative difference between soliciting a female prostitute and being anally raped by a lying, coke-crazed fat man, even if he is an advocate for the poor.”

Akpenyi, however, had been caught off guard. Garner had told Nary at the beginning of the hearing, “We’re not here to retry your case,” and Akpenyi took him at his word.

As in most parole hearings, the attorney’s role was to discuss the prisoner’s record while incarcerated, and Nary’s had been “impeccable,” Akpenyi told the panel.

In his favor, Nary had some two-dozen letters of support, offers of jobs and places to live. His psychiatric report noted “low risk for violence in the free community” and was among the best anyone had seen.

Nary had converted to Catholicism years ago, helped facilitate spiritual programs and tutor other prisoners. He had all but completed his AA degree from Coastline College, had gotten five certificates from Microsoft, and had “laudatory” marks in program after program.

“He’s a model inmate,” said Akpenyi in conclusion. “He has proved that the rehabilitation system really does work.”

“I don’t know when you had time to sleep,” said Deputy Commissioner Diane Lushbough to Nary. “You’ve done an awful lot. I want to just acknowledge that.”

None of this interested Tung. She had studied the case in depth and driven the 200 miles from San Francisco to Avenal State prison explicitly to retry the defenseless Nary.

At the beginning of the hearing, in fact, Tung presented grisly crime scene photos that took everyone by surprise. “I’m wondering why the DA has submitted this,” Akpenyi asked the equally confused commissioners.

Tung conceded that Nary had been hopelessly drunk, that Pifarre had lured him to his apartment under false pretenses, and that a sleepy Nary had pleaded with Pifarre to stop trying to penetrate him from behind.

Said Nary, who was almost assuredly slipped a date rape drug, “I was just laying there, couldn’t move, couldn’t speak.” When Nary finally got his wits about him, he hit the relentless Pifarre over the head with a glass mug by the bedside, and a fight ensued, the first in Nary’s life.

“The victim was helpless,” said Tung of a man his friends admitted at trial could be ferocious when high. Pifarre came after Nary with a towel rod. Nary wrested it away from him and jabbed him with it. When Nary slipped, Pifarre tried to gouge his eyes out, and Nary responded by choking him, likely to death.

Only In San Francisco, only with a gay and/or minority “victim,” only with a male defendant, could choking a rapist pass for “Murder in the Second Degree with Use of a Weapon.” The “weapon” was the towel rod.

In their questioning, both Tung and Garner seemed bewildered that anyone would find homosexual advances troubling.

Asked Tung, “Did this murder happen because of your temper?” In their questioning, she and Garner implied that Nary should have asked Pifarre to cry “uncle” once subdued and let him be.

“Did you have any level of curiosity about how things were going to evolve,” asked Garner of a confused, drunk, 18 year-old fighting for his life.

Tung chastised Nary for not calling 9-1-1 after he had fled Pifarre’s apartment in the early hours of the morning. That he had called the police of his own accord days later scored him no points.

Despite the absurd questions, Nary was as incapable of defending himself as Akpenyi but for a different reason: he was there to prove his very genuine remorse.

As a serious Christian, he had come to understand that his behavior leading up to that night was “sinful,” a word the commissioners had not likely heard very often.

“I felt no real purpose,” said Nary of that time in his life, “and life seemed to be a party where I could live from one experience to the next.”

He then offered a plea for contrition too comprehensive and profound for the commissioners to understand even if they had wanted to. “Every inch of my body, mind, and soul cries out for forgiveness,” said Nary.

In a state where interest group dynamics trump individual justice, Nary never had a chance.

“The panel feels that you haven’t fully explored the totality and magnitude of this commitment offense,” said Garner at hearing’s end.

“You’re unsuitable for parole because you remain a present and unreasonable risk of danger if released and require an additional five years of incarceration.”

And we wonder why the state is bankrupt?"

SF DA Nancy Tung Misconduct Results in Dismissal of All Charges in DV Case

2011-02-05T12:00:00.000-08:00

Recently I concluded a domestic violence case in SF after ADA Nancy Tung admitted that the prosecution was based on fabricated evidence. She waited until the jury was empanelled to do so, costing my innocent client 5 months in the county jail and his job. There follows my letter of complaint to Ms. Tung's supervisor which sets forth all the facts.

"This is the first such letter I have written in 31 years as an attorney. I try to overlook most examples of inappropriate behavior in the interest of not escalating conflict. Presently I am a felony conflicts attorney for the Bar Association of San Francisco. The prosecutorial misconduct in the above-referenced case is so egregious that I cannot help but call it to your attention.

My client, T. G., was arrested on charges of domestic violence on September 15, 2010. The alleged incident occurred during the night of 8/20 to 8/21, 2010. It was not reported by the CW until September 3, 2010. As far as I can tell your ADA Nancy Tung interviewed the CW, had her sent to a hospital for a physical and without further investigation filed felony charges against my client. Due to the exaggerated claims of ADA Tung bail was set at $100,000, a sum my client could not meet.

Mr. G. is a white male, 35 years old, small in stature with no previous criminal record (except a misdemeanor marijuana conviction from the state of Virginia when he was very young). He is committed to non-violence, founded a men’s group which focused on awareness of domestic violence and has lived peacefully in San Francisco since 1998. As a result of this unfounded prosecution he lost his job, his home and a 5 month chunk of his life.

From the beginning the defense asserted that the alleged victim was psychologically unstable, alcoholic and bent on revenge since Mr. G. broke off relations with her. She had stalked him at the restaurant where he worked until the SFPD was called in (Lieutenant Moore of the Richmond station has a vivid memory of the alleged victim’s instability. She was so concerned that she called the Berkeley [where the victim lived] mobile crisis unit on a 5150 suspicion.

Nevertheless when I tried to get ADA Tung to investigate these claims she adopted an attitude that “women never fabricate so I don’t believe you.” After a mighty struggle we obtained the phone records of both parties and provided copies to ADA Tung. These records showed several things which supported the defense theory of the case. The alleged victim had called Mr. G. between 345 and 60 times a day since their break up. On occasions when he would not answer she appeared the next morning at his San Francisco home. She was insanely jealous of his female roommate (who incidentally was a lesbian) and attacked her one evening as she got into her car.

More significantly the cell phone records showed that the two parties were not even in the same city the night of the alleged incident.

One would think that such information would cause ADA Tung to investigate the defense claims. She did not. She didn’t even read the cell phone records we gave her in mid-December. She plunged on ahead, insisting that Mr. G. was a danger to public safety and she wanted a felony against him.

After fruitless attempts to settle the case with ADA Tung, it came on for trial on January 25, 2011. A jury panel of 85 citizens (after hardships) was empanelled and pretrial motions heard. On January 27 we were scheduled to voir dire the jury. As it turned out the night before ADA Tung undertook for the first time an investigation of defense claims. She first of all ran a criminal history on her victim and found that she the victim had been arrested as the aggressor in a DV incident with another man in Berkeley in 2008. Until the eve of trial she had failed to run a comprehensive criminal history on the CW. Had this been done after the event was reported I believe it would have raised a red flag in the mind of an honorable prosecutor and led to an in depth investigation of the CW that would have persuaded her not to pursue Mr. G.

At this point ADA Tung began for the first time seeking verification of the defense story. Over the course of the night she discovered that each and every claim we had made were true. The next day, while 85 citizens waited in the hallway, Ms. Tung gave trial judge Bolanos a rambling 45 minute explanation of why she wanted to dismiss the case. By this time the MTC judge had gotten wind of this waste of judicial time and effort and demanded that ADA Tung request the dismissal in Dept 22. Again there followed a rambling incoherent speech which tended to say she could not have known earlier. Judge Lee recognized this statement for what it was and said “if Mr. Kaman could have discovered these facts you could have too.”

Judge Lee pronounced Mr. G. totally exonerated and apologized to him, a gesture ADA Tung did not have the grace to make. Judge Lee went on to say that if ADA Tung had tried this case she would have earned a not guilty verdict which would have been an embarrassment to Ms. Tung and the Office of the District Attorney.

While I am aware that prosecutors have total immunity in their charging function, this is not so with regard to their duty to investigate. ADA Tung has not only shamed herself she has opened up the City and County to a claim for damages which would be supported by case law. Shoddy investigation, or, in this case, none at all, rise to the level of prosecutorial misconduct which the law will not protect."

To date no response from my letter. Ironically the next week the same conduct repeated itself involving another defendant and ADA. That case was dismissed mid-trial when it turned out that the woman had fabricated the whole thing.

What's going on in the SF DA's domestic violence unit???

Palmer, Reiffler & Associates

2010-05-11T07:24:00.000-07:00

Palmer, Reiffler is a Florida firm that specializes in sending civil demand letters to those accused of shoplifting. The idea is that the store has suffered damages due to the crime, even if the goods are returned undamaged. In my view these demand letters, while legal under PC § 490.5, are also empty threats, as no action is ever taken on the demand. Moreover they are deceptive as the letters arrive in the context of a criminal prosecution and many people pay thinking Palmer, Reiffler is working for the DA. Nothing could be further from the truth. In fact, paying a civil demand has no effect whatsoever on a criminal prosecution.

I posted my views in a legal guide on Avvo, the lawyer guide (another scam which will be subject of a later post). Natt Reiffler contacted me by e-mail to protest, portraying his firms efforts as legal and accomplishing a social good. I responded and asked for some documentation, some of which was provided. Most importantly I asked whether Palmer, Reiffler had ever filed suit in CA and for identifying case numbers if they had. To this question I got NO response so it is safe to say the letters threaten action that will never and has never been taken.

The rest of the documents concerned Attorney General opinions in CA about the practice, stating generally that they are legal. I never disputed that point so the documents do not refute my position. The other document was an order on a motion for summary judgment in a class action suit against Palmer, Reiffler. No details are given and it is thus impossible to tell what propositions this order stands for, if any.

Nonetheless, I told Natt I would print his response and here it is:

"Thank you for your comments and agreeing to post this reply on the Avvo site below your comments. Litigation is a choice for clients on a case by case and state by state basis. You clearly have a choice when advising your clients about what retailers may choose to do in the future. However, in light of our ever changing economy and the over 15 billion dollars estimated to result from theft in the US annually, the phrase often used by stockbrokerages about how “past performance should not be considered an indicator of future performance” seems in my opinion worthy of consideration.

I have enclosed the two Attorney General opinions as well as the order granting our firm summary judgment against the plaintiffs in the suit your referenced. Our letters use cautionary language and as expressed earlier, I disagree with your characterization of them. While you have every right under the 1st Amendment to express your opinion regarding what they mean or the context of the letters, I would ask that you use greater care in choosing your words characterizing the letters. Looking at the overall context and in light of the Attorney General’s 1979 Opinion, I respectfully disagree with you. A civil “penalty” release is offered in exchange for a voluntary payment of statutory civil damages. There is no intent to confuse and the letters are clear that the requested payment only resolves a potential statutory civil claim. We can’t change that the civil remedy in California happens to exist in the Penal Code. My preference would have been for the civil remedy to be codified in the civil law.

Once again I reiterate in response to your statement about our letters that you published on the Avvo website; “It will be very demanding, threatening lawsuits and wage garnishments”, there are no letters that threaten wage garnishments!

Natt O. Reifler"

If you think that response justifies preying on poor people who fear their liberty will be lost I'd like to hear from you. I'm not persuaded.

2010-02-25T08:22:00.000-08:00

I can't take credit for this; it comes from Mr. Pfeifer's blog. I couldn't produce a link so I am presenting it whole with credits to its author.

Why your lawyer won’t take or return your phone calls – top 10 reasons

by William L. Pfeifer, Jr. on February 19, 2010

© 2010 by William L. Pfeifer, Jr.
http://stubbornwriter.com

"The most frequent complaint about lawyers is they won’t take or return phone calls. Articles on this subject usually sugarcoat the issue, give some blah blah blah about professional responsibility, or try to it wrap up in a touchy-feely feel-good win-win conclusion. No one really wants to tell you what is going on. You want the truth about why your lawyer doesn’t want to talk to you? Here are the top ten reasons your attorney won’t return your calls.

10. Your lawyer is busy on something more important. While you may think and act like you are your lawyer’s only client, the reality is that a lot of other people hired the same attorney as you. Your business alone will not pay your lawyer’s bills. Lawyers have to meet crucial deadlines. They spend hours standing around in courtrooms, and more hours researching and preparing to stand around in courtrooms. They are in meetings with clients, interviewing witnesses, taking depositions, and a million other important things. Your whiney question about a case that won’t be going to trial for two or three years is not as pressing as the case set for trial tomorrow.

9. There is nothing new to tell you. Many people believe that there are always new developments in their case, or that there should be. In reality, most cases involve many periods of intense activity but also include many times of little or no activity. For example, if you send interrogatories to the opposing party, there is probably nothing going on until they submit their answers a month from now. If all discovery has been done and you are just waiting for trial, you could experience months of inactivity in a case just waiting to get in front of a judge. If there is nothing to tell you, your call inquiring about the status of the case may not get returned until there is absolutely nothing else of any importance that the lawyer needs to do.

8. You talk too much. Some people act like a lawyer has all the time in the world, and want to chat endlessly about trivial matters that just aren’t relevant. Lawyers quickly learn which clients can be efficient and which ones are time hogs. If you know how to get to the point, get your answer, and move on, your lawyer is much more likely to return your calls than if he or she knows that your call will go on forever. Lawyers are busy, they only have a limited number of hours in a day, and they can’t spend all day listening to you blab on and on. It’s nothing personal, you are just a waste of time. If the lawyer starts the conversation with, “I’ve only got 5 minutes before I have to do X,” that may be a warning sign that you are a time waster. Make your calls short and to the point, and you’ll hear from your lawyer sooner and more often.

7. Your lawyer has issues. Surprisingly few people do much research before hiring a lawyer. This lack of diligence works out well for lawyers with substance abuse problems, mental illnesses, or a poor work ethic. What do you really know about this person who has been entrusted with the most important matters in your life? Statistics indicate that lawyers suffer from alcoholism and depression at rates significantly higher than the general population. In fact, lawyers have the most alcoholics of any profession. You may have hired a fantastic attorney who is swamped with work, or you may have hired an alcoholic lawyer who is too drunk to talk to you right now.

6. Your lawyer screwed up. While still fairly rare, this does happen more often than people realize. Your lawyer could be avoiding telling you the unpleasant truth that your case has already been lost. How can this happen? The most common way is that the lawyer missed a filing deadline. If there was a statute of limitations on when your case had to be filed with the court and the lawyer missed that deadline, then you are screwed. Your lawyer doesn’t want to tell you because he or she doesn’t want to have to admit to committing malpractice. So he stalls, delays, and avoids you until he can figure out a way out of this mess.

5. Your lawyer is an ass. Most lawyers are not as bad as the reputation of the profession would lead one to believe. In fact, most are ordinary people who just happen to be in a job that turns them into bitter, cynical asses who hate what they do every day. Most started out with high aspirations for all the good they could do in the world as a lawyer, only to discover so much of the job is just doing the bidding of some of the sorriest SOBs on the planet (such as you). This is very hard on one’s soul, and over time it can turn lawyers into rather unpleasant people. Note: It could also be that he was already an ass before becoming a lawyer, in which case joining the legal profession is like living a dream for him.

4. You are not the client. It is absolutely amazing how many people think they have a right to know what is going on in other people’s cases. Parents, grandparents, aunts, uncles, cousins, neighbors, ex-wives, employers – the number of people who call lawyers wanting to know “what is going on” would surprise most people. If you are leaving messages about someone else’s case and aren’t getting a return call, consider that the lawyer has no obligation to call you. The lawyer doesn’t represent you, can’t tell you anything, and really doesn’t have time to argue with you about why he can’t tell you anything. It doesn’t matter if you are the client’s momma, if you have written authorization, if you have a power of attorney for the client, or even if you are paying the bill. If you aren’t the client, mind your own business.

3. You are an idiot. This one is pretty self-explanatory. You are a dumbass who doesn’t understand anything you are told, or who disregards it to do whatever you want to do anyway. You are going to be getting into trouble for the rest of your life because you are just so dumb. Seen those “stupid criminal” videos? That’s you. Your lawyer is tired of telling you what to do, only to watch you disregard it to indulge your impulses or because you think you are smarter than everyone else. You aren’t. No one likes to waste time talking to a moron.

2. You won’t listen. This one often overlaps with “you are an idiot.” No matter how many times something is explained to you, you ask the same questions over and over because you don’t like the answers you received. You think that if you ask the same question over and over, at some point the answer will change into something you want to hear. This isn’t your mommy saying you can’t have a cookie and finally giving in because you asked for it 100 times. If you’ve been told the same answer a dozen times already, maybe it is because that really is the answer. Since the lawyer doesn’t want to tell you again, he just won’t bother talking to you.

1. You are an ass. The biggest reason that your lawyer doesn’t want to talk to you is that you are an ass. You are rude, demanding, pushy, arrogant, whiney, and annoying. You think that you can catch more flies with a flamethrower than with honey. Your lawyer is the only person who is trying to help you, and yet you want to treat him like this? Hating you is not a good motivator for trying to help win your case. The squeaky wheel may get the grease, but it doesn’t get a returned phone call. Try being polite and pleasant, and you’ll have much better communications with your lawyer."

West Memphis 3: New DNA Evidence

2010-02-24T15:49:00.001-08:00

Johnny Depp added his name to the long list of celebrities and activists calling for authorities to re-examine the convictions of the West Memphis Three, a trio of young men convicted nearly two decades ago of murdering three children in West Memphis, Arkansas.

The often press-shy actor will appear in a pre-taped interview on CBS' "48 Hours Mystery" on Saturday.

"I firmly believe Damien Echols, Jason Baldwin and Jessie Misskelley are totally innocent," Depp said, according to a New York Post report. "It was a need for swift justice to placate the community. Damien Echols is on death row to be killed by lethal injection."

The "48 Hours" episode will discuss new DNA evidence and alleged juror misconduct that could potentially clear the West Memphis Three, according to the report.

After the gruesome beating deaths of three 8-year-old boys shocked the small Southern town, many activists believe authorities rushed to convict the West Memphis Three based more on the trio's dark clothing and love of heavy metal than facts.

The sensational trial, conviction and aftermath — which has divided the community and the world at large for more than 16 years — were documented in a pair of acclaimed films by directors Joe Berlinger and Bruce Sinofsky: "Paradise Lost: The Child Murders at Robin Hood Hills" and "Paradise Lost 2: Revelations." The pair went on to make "Metallica: Some Kind of Monster" after the band provided music to their West Memphis Three documentaries.

Depp and Metallica are joined in their support for the West Memphis Three by Eddie Vedder, Winona Ryder, Natalie Maines of the Dixie Chicks and Henry Rollins, who organized a benefit album for the trio a few years ago, to name a few.

Last month, Demi Lovato offered her support via Twitter, writing: "Can everyone just take a second to read this please www.wm3.org a truly worthy cause. Show your support!!" followed by, "FREE THE WEST MEMPHIS THREE!!! :(."

Echols, Baldwin and Misskelley were teenagers at the time of their convictions. The verdicts have continuously been challenged through legal channels, but they all remain in prison, with Echols on death row. Many believe that circumstantial evidence seemed to point to other potential suspects. Some members of the victims' families have publicly expressed their desire to see all of the facts in the case re-examined.

New Medical Marijuana Limits

2010-02-23T15:07:00.000-08:00

A guide to the new ruling on medical marijuana.

Background of the Compassionate Use Act

In 1996, via the initiative process, the voters of CA approved Proposition 115, the Compassion Use Act (the "CUA") PC § 11362.5. The legislature, fearing abuse, passed a law restricting the amount of medical marijuana that a person with doctor authorization may have, limiting that amount to 8 ounces of the drug or 3 marijuana plants. On 1/21/10 the CA Supreme Court overturned the limits set by the legislature at PC § 11362.7 et seq. The case is titled People v Kelley Supreme Court Docket No S164830.

Why and What Does This Mean for Me?

The initiative process in CA amends the state constitution. The legislature itself cannot amend the state constitution. The law amending Prop 215 was an unlawful amendment by the legislature of the CUA. Hence the Court struck it down. What it means for you may invoke the law of unintended consequences as the Court noted that officers may stop anyone suspected using of marijuana to determine if they have authorization and whether the amount they possess may allow for criminal activities. Although the ruling would seem to be a further step in the legalization of marijuana it in fact broadens the powers of the police to search anyone suspected of having marijuana even if they have the proper authorization under the CUA.

Dumb and Dumber Awards 2009

2010-01-24T13:59:00.000-08:00

For the Defense Dumb and Dumber Awards for 2009

This is a new feature of my blog. All facts are taken from public records. Some criminal acts are not based on any intelligent assessment of risk. The Dumb and Dumber Awards seeks to honor those who crimes will also cause a chuckle. We hope.

Third Dumbest Criminal Act for 2009

Defendant walking down the street sees a bum laying on the sidewalk. As he approaches the bum asks to buy some dope. Defendant offers a $10 rock of meth. Bum agrees and gets out his 10 bucks. Defendant grabs the $10 and runs. Whoops the bum is a cop playing buyer in a buy bust operation. After a two block chase police converge on hapless defendant

Second Dumbest Criminal Act for 2009

Defendant sees a bike leaning against a wall. Thinking he can take it and cash it in for drugs he hops on and rides away. Only problem: the bike belongs to a cop in the middle of a bust. When he looks up and sees defendant pedaling away he calls for help. Duh.

Dumbest Criminal Act of 2009

Defendant after a night of holiday partying joins a crowd of people torching discarded Christmas trees. When its his turn to torch he spots a tree leaning against a light pole and torches it. He is immediately surrounded by police. He wonders why until he notices that the tree was discarded in front of a police station. Moral: if your going to pull a prank don't do it in plain view of the police.

Shoplifting: Civil Demand Letters

2010-01-24T10:05:00.000-08:00

What are these civil demand letters?

When shoplifting occurs the store has two options. It can call the cops who will arrest you and later the DA will decide whether to press charges. In addition and at the same time their Loss Prevention Department can send you a letter demanding that you pay them damages in an amount specified by statute. Usually these demands are low enough that the store will never bother trying to collect their penalty and I routinely advise clients to ignore them. When you do that, the civil demand will usually be assigned to a law firm to collect. What risks do you run by not paying them?

Palmer, Reifler & Assoc

If you receive a letter from a law firm it will likely come from Palmer Reifler & Associates. It will be very demanding, threatening lawsuits and wage garnishments. That's all these guys do. They extort the civil penalty from poor people who really can't afford to pay it. If you doubt me google their name and look for the class action lawsuits filed against them. Will they sue you? It's very unlikely. They prefer quick money from frightened people rather than going through a prolonged trial process or even small claims court. If they continue to harass you have an attorney write them a letter with some teeth in it. These snakes will slither away.

New CA Criminal Laws for 2010

2010-01-24T10:00:00.000-08:00

Every new year sees a host of new criminal laws ushered in which are designed to crush the poor and oppressed. This year we have 3 new laws that will actually help you with certain criminal charges as well as credits for time served.

No More 2/3s Time Served in County Jails

The old rule, set forth in PC § 4019 meant that for every four days your serve in county jail you get credit for six. In most cases this worked out to a third time credit. Sentenced to a year in CJ you served 8 months. From now on, except for certain classes of violent crime and sex crimes, for every two days you serve in CJ you will get credit for four. The new rule means essential that prisoners in county jail will now get half-time credits. A year's sentence now means you serve six months.

Felony Theft Limits Increased

For many theft laws under the old regime anything over $400 was a felony. The legislature has now upped the limit so that in some cases the value of the property taken must be over $950 before a felony can be charged. Ex: example, receiving stolen property formerly could be charged as a felony if the property’s value was over $400; now the value must be over $950.

Non Violent Parolees: No More Prison for Violations

In the past any violation of parole could get you sent back to state prison. The legislature is changing the rules so that if you are a non-violent, non-sex crime offender you can NOT be sent back to prison for petty violations. Under existing law, the department is authorized to return a parolee to prison if the Board of Parole Hearings determines that the parolee violated the terms of his or her parole, as specified. This bill would prohibit the department from returning certain parolees to prison, placing a parole hold on the parolee, or reporting the parolee to the Board of Parole Hearings for a violation of parole, with certain offenders excepted.

Passports for Felons

2009-11-10T21:09:00.001-08:00

There is nothing in U.S. law that prevents most felons from receiving a
passport -- unless the terms of parole, probation or sentencing deny
the person a right to a passport or international travel.

A passport is a document that certifies a person's citizenship. It is
not a guarantee of character or anything else; it is basically an
identity document. In fact, the passport form doesn't even ask the
applicant about criminal history.

Traditionally, there is just one type of felony that would prevent the
person from getting a passport. A person is ineligible if he or she
has "been convicted by a court or court martial of competent
jurisdiction of committing any act of treason against, or attempting
by force to overthrow, or bearing arms against, the United States, or
conspiring to overthrow, put down, or to destroy by force, the
Government of the United States."

That information is included on the passport information form,
available here:

Application for U.S Passport
http://travel.state.gov/DS-0011.pdf

A more recent U.S. law prohibits the issuing of a passport if a person
crossed an international border to commit a felonious drug offense.
(In some cases, a passport can be denied even if the offense was a
misdemeanor, provided the person crossed an international border to
commit the crime.) That law can be found here:

Section 2714. Denial of passports to certain convicted drug
traffickers
http://caselaw.lp.findlaw.com/casecode/uscodes/22/chapters/38/sections/section_2714.html

Other than those exceptions, there is no provision in federal law for
denying a passport for the mere act of having a felony record. It can
be denied only if the person is subject to arrest or if the person is
prohibited by terms of parole or probation from having a passport.

Here is a summary of the U.S. law:

Mandatory Denial. Passports are issued to
applicants as a matter of course in all but a few
rare situations. Except for direct return to the
U.S., the law provides that a passport shall not be
issued to an applicant subject to a federal arrest
warrant or subpoena for any matter involving a
felony. Furthermore, a passport shall not be issued
where the applicant is subject to a court order or
condition of parole or probation which forbids
departure from the U.S. Passports will also be
refused if the applicant has not repaid loans
received from the United States for certain expenses
incurred while the applicant was a prisoner abroad.
Nor will a passport be issued if the applicant is
under imprisonment or supervised release for any
conviction, at either the state or federal level,
for a felony involving a controlled substance.

Discretionary Denial. In any case, including for
direct return to the United States, a passport may
be refused where the applicant has not repaid a loan
received from the United States to effectuate his
return from a foreign country, where the applicant
has been declared incompetent, or where a minor
applicant does not have the necessary consent of
legal guardians. Moreover, a passport may be
refused if the Secretary of State determines that
the applicant's activities abroad are causing or are
likely to cause serious damage to the national
security or foreign policy of the United States.
Finally, a passport may be refused when the
applicant is subject to imprisonment or supervised
release for a misdemeanor drug conviction, other
than a first offense for possession, if the
individual used a U.S. passport or otherwise crossed
an international border in committing the offense.

Revocation. A passport may be revoked, restricted,
or limited where the national would not be entitled
to a passport as described above, or where the
passport was obtained by fraud, or fraudulently
altered or misused. Unless specifically validated
therefore, a U.S. passport shall cease to be valid
for travel into or through any country or area at
war with the United States. U.S. passports may also
be invalidated for travel through areas in which
armed hostilities are in progress, or where there is
imminent danger to the public health or physical
safety of U.S. travelers. Such determinations are
made by the Secretary of State and are published in
the Federal Register.

Source: U.S. Report under the International Covenant on Civil and
Political Rights
http://dosfan.lib.uic.edu/ERC/law/Covenant94/Specific_Articles/12.html

A passport can also be denied if the individual has outstanding
child-support payments of more than $5,000:

Other reasons for passport application denial
http://www.passportexpress.com/?page=deny

Note also that many countries will not issue visas or allow entry to
persons with a felony record (or even drunken driving convictions in
the case of Canada). A list of countries' basic visa requirements can
be found here:

Foreign Entry Requirements
http://travel.state.gov/foreignentryreqs.html

Dr. Gates and What Is Not Being Reported

2009-07-25T10:12:00.000-07:00

When so much has been written about the Gates incident I wonder whether additional comments or points of view are going to make any difference. But consider that no news articles that I have read have done any analysis of trash talking the police. Courts have addressed this question and have almost unanimously ruled that we have a free speech right to trash talk the police. Gates committed no crime by mouthing off. Of course, in the real world we might prudently choose not to assert rights we know we have. As a white man who has had encounters with the police I will add to this debate that even if trash talking them is our right it is stupid to escalate a confrontation with an armed man acting under the color of law. The cop was wrong no doubt; Gates was imprudent.

Sad to say, the real issue is a simple and incontestable truth. Most people who pass through the criminal system are black, latino, or asians with whites being a distant minority. The reason for this can be debated but the perception it creates is suspicion of people of color and fear of them not only by the police but by anyone deemed "white" in the US. The criminal system reflects our own racism. The Gates incident stands out because of his position in society. Meanwhile voiceless, powerless people of color are hauled off to jails and prisons for marginal crimes, many of which arise out of their impoverished conditions and no one says a word.

Beyond that the police are brutal, authoritarian and downright rough in many cities and communities. Try trash talking one as a white person and experience the result. You'll be arrested and not treated too nicely and then be charged with resisting arrest, obstruction or disorderly conduct. After that it is their word vs your's. Who do you think juries believe?

Crim News of the Day: Daddy Ate My Eyes

2009-05-23T11:14:00.000-07:00

BAKERSFIELD, Calif. -- A Bakersfield boy will likely be blind after police say his father bit out one of his eyes and mutilated the other.

After 34-year-old Angel Vidal Mendoza Sr. allegedly attacked the boy, police say Mendoza rolled his wheelchair outside and began hacking his legs with an ax.

Four-year-old Angelo Mendoza told police, "My daddy ate my eyes."

The boy's mother was not home at the time.

Officials with Child Protective Services declined to comment on the case.

Mendoza, under $1 million bond, is charged with mayhem, torture, child cruelty and inflicting an injury to a child.

The incident happened April 28, and a hearing is set for May 20.

Accused Killer Attacks Judge

2009-03-15T10:56:00.000-07:00

One of the irritations of being a private defense attorney is going through courthouse security several times a day. One of the few counties left that doesn't search attorneys is San Joaquin County. Week before last during a murder trial, defendant was testifying when he attacked the judge with a shank he had smuggled in from jail. Bailiffs tried to get to her aid but a Lodi detective was quicker and shot the attacker, killing him, 3 times in the chest.

Of course he didn't get his shank from an attorney. But the whole episode reminds me that we represent clients who appear normal most of the time but once in a while go into crisis mode. It is neither foreseeable nor preventable.

The judge is recovering from neck wounds.

Reorganization

2008-09-20T09:30:00.000-07:00

I recently (about 6 months ago) reorganized my practice so I do only criminal defense now. Family Law can be a real pain, though it pays well, and my claim to expertise in immigration never led anywhere. Now the only immigration law I do consists of exploring the consequences of criminal convictions or pleas for my clients.

Hey I keep trying to post more often but life gets in the way. This summer I had 3 felony trials (1 guilty verdict, 1 hung jury and 1 acquittal) then in August health problems diverted my attention. My health now is fine but August was no fun.

Right now I am working on an appeal, and awaiting a 1st degree burglary trial on September 29. Problem is the defendant confessed to police and even led them to the stolen property. Hard to defend except that the victim was a friend who is just as low life as him. Might get mileage out of that. I like to do trials but this is a second strike case and my guy is going to get really hammered if he goes to trial and loses.

Something to think about next week. Next (I promise) my two murder cases.

Black Man Accused

2008-06-22T06:04:00.000-07:00

This week's trial: my client is a 30 year old black man who's been in jail almost a year awaiting trial. It starts at last tomorrow. If there are any blacks to serve on his jury I haven't seen them walking the streets of this rural community. He's accused of exposing himself in public which he denies and which I think I can demonstrate is a case of mistaken identity. He's searched, then handcuffed behind the back and put in the squad car for the ride to the police station. Once there he's searched again, this time nude, and nothing turns up. Dressed up again, he's cuffed once more and taken to the squad car for the ride to the jail. At the jail he's searched a 3rd time. Nothing turns up.

So the frustrated cop goes back to the squad car and searches the back seat where he find 8.9 grams of cocaine hidden in the seat of the patrol car. Client charged with possession and possession with intent to sell. Weird, bizarre, unbelievable? None of the judges on the case so far think so. But to connect this dope to my client you have to assume that the searches didn't turn up the dope because it was so well hidden on his body. Then you have to assume that with both hands cuffed behind his back he could have retrieved the dope and hidden it in the seat of the police car.

Prosecutor wants 7 years. If we can find 12 angry men he won't get squat.

Verdict In

2008-06-17T16:56:00.000-07:00

My child molester client is toast; the jury found him guilty on all five counts against him. Since the sentences run consecutively in this area of the (California's famous one strike sex law, that is, one strike and you're finished). His sentence could be in excess of 100 years to life. As he is 34, this is an absurd proposition. Excessive punishment? Cruel and unusual? I'll say. If he lives to be 134, he would be eligible for parole. Why not just say life without possibility of parole? A friend of mine had a similar case, more serious, and his client got 467 years to life. Does anyone wonder why we have the biggest prison population in the world?

When we finally have jailed all the "bad" guys (and I'm not supporting child molestation) who'll be left? The Bush family?

Break down the prison doors.

PC 288 Trial

2008-06-14T14:52:00.000-07:00

I'm in trial now on a child molest case. That's penal Code § 288. Why defend a child molester? That question assumes he's guilty; the real question is did he do it. In that context my role is to see that he is treated fairly and that his due process rights are respected. Due process means simply that you can't be deprived of your freedom unless you've had notice of the charges against you and a trial by jury. After the alleged victim testified the jury wouldn't look at me anymore. Delusion: confusing the lawyer with his client.

We go into second week on Monday. The penalties have gotten outlandish in this area of the law. My client is accused of having touched a little girl's vagina. If you are over 18 and your victim 10 years or younger, new Penal Code § 288.7(b) says your minimum is 15 to life. Make that life. Sex offenders don't get paroled anymore. If they do, six months before their release date two doctors from the Department of Mental Health examine them to see if they could re-offend. Nobody gets a pass. If you did get a parole date you'd just be transferred to a state mental hospital for 8 years, renewable for life.

One of the reasons why the United States has more people in prison than any other country in the world including China. Home of the Free, Land of the Brave.

Jack's Fate, Part II

2008-06-14T14:44:00.000-07:00

Remember Jack, one of my first subjects. Clients often come back. Jack got shot 3 times in the back by gang members, narrowly survived and was put in witness protection. No sooner than done, Jack manages to get busted again so now the DA wouldn't pay to hide him anymore. Too bad. Jack est un type bien as we say in French, a good guy, with a troubled heart. Reminds me of the title of a Fassbinder film: "Fear Grips the Soul." I hope Jack is till out there. Haven't heard from him in months.

Berzerk DA

2008-06-14T03:22:00.000-07:00

In response to my post regarding criminal settlement offers with a high term and a probation report, I just got a 7 page single spaced letter from the DA on that case attacking me for everything I've done in the case and calling my post unethical. What BS. Any DA who can crank out a letter like that doesn't have enough to do. In criminal law we don't write a lot of letters as most interaction with the prosecution takes place in court. I guess this DA is just pissed because I got a major portion of the complaint against my client dismissed. Go pound sand.

New Felony Cases

2007-11-19T07:32:00.000-08:00

I am now running the defense in a drug sting (7 counts of possession with intent to sell), a second 2 count similar accusation with priors, running a meth lab with guns involved, elder abuse resulting in death, identity theft, real estate fraud (subprime variety) and about 30 misdemeanor cases.

This is why I no longer write every day. Gotta break down those prison walls!

Time Keeps on Slipping

2007-11-18T14:46:00.000-08:00

Meditation on time: do the crime, serve the time? Time. Credit for time. CJ Time 2days for three; SP time 1 day for 2. Watch out strikers. Time can tick at 85%.

Settlement conference with Judge and DA the other day. Day recommends lower term but judge has option of going up.

"Depends on the probation report," he says. He's lying. In San Mateo County judges always give the upper ranges. It doesn't matter how much ass you kiss with your probation officer.

"Just wanted to know the range," I respond.

"Counselor, it'd behoove you to settle this case." Judicial threat. Do the right thing or I'll make you pay, that is, make your client pay. With what? Time. It keeps on slipping into the future.

You know how some words stick in your mind? That "behooves" stuck in mine. Couldn't sleep thinking about what "behooved" me to do. Pissed me off, staircase wit that I am. I should have said if you're going to threaten me let's put it on the record. Not quick enough. Time rushed over me like a river.

Back Again

2007-08-18T11:47:00.000-07:00

Work's picked up so I've been too busy to post (yeah, excuses I know). Typical cases: spouse batterers (both sexes), DUI's, petty thefts, expungements, felony drug sales and the atypical: passing counterfeit money. I'm in court a lot and underpaid but better off than in March when I posted last. I'm also learning the in's and out's of all the jails around the Bay Area, a report of which would be a novel in itself.

Criminal defense work in SF varies wildly. The Hall of Justice has its own unique culture to learn. Attorneys who are known to the judges routinely show up late for appearances without criticism. It's a club really and once you're in it's ok but you have to learn the rules. Those of us who still show up on time crowd around the podium once the judge takes the bench, vying for a chance to be heard first and get out of there. The judges are always late but I figure its chancy counting on that. In some departments defendants are routinely summoned for 8 am hearings which everyone knows never start before 9:30. I have stopped showing up at 8; although I still feel an obligation to be there by 9.

Most of the time the DDAs don't know what they are doing until the complaints and dismissals come down from upstairs around 10:30 or so.

In many ways it's a tedious culture where 90% of your time is spent waiting with the remainder left for lawyering.

More to follow.

Jack's Fate

2007-03-29T14:01:00.000-07:00

You remember Jack from my early postings I hope. His case went to trial last week (one reason I haven't written here for a while). The DA was incredulous that I wanted a jury trial on misdemeanor charges; more importantly the judge said that if we had a jury trial and lost he'd run the sentences on the different counts consecutively, that is one after the other, meaning Jack risked 2 years and 3 months in state prison by insisting on a jury trial (his constitutional right). That's called a trial tax and is contrary to the law.

Jack was afraid and decided to accept the slow plea which means that the state's evidence goes in by stipulation (agreement) and Jack is allowed to present his defense to the judge without objection. But when we start his case, the DA objects and the judge sustains his objections which means the pretrial promises weren't being kept. Eventually the judge finds Jack guilty but in a gesture of appreciation for not putting the state to the cost of a jury trial gives him credit for time already served which means Jack walked free. Except he's got to do a 52 week class on domestic violence as the price of leniency. Say, what???

Lessons learned: if there's any way your schedule can stand the strain, don't waive either time or a jury. Neither the judge nor the DA is prepared for that and it's a good way to keep them off balance. Problem is often your client folds under the pressure, pleads and then later has regrets he didn't go to trial. Guess who gets the blame for that?

Going to Canada--Clear Your Record First

2007-02-25T15:29:00.000-08:00

Over the years Americans have grown used to free passes into Canada for vacations and short term stays. However, as a result of 9/11 and stronger border controls, Canadian border official are declaring many Americans inadmissible who least expect it. Members of Inadmissible Classes include those who have been convicted of MINOR OFFENSES (including shoplifting, theft, assault, dangerous driving, unauthorized possession of a firearm, possession of illegal substances, etc.), or of INDICTABLE CRIMINAL OFFENSES (including assault with a deadly weapon, manslaughter, etc.). As well, those who have been convicted of DRIVING WHILE INTOXICATED (DWI) are considered Members of an Inadmissible Class. Driving while under the influence of alcohol is regarded as an extremely serious offense in Canada.

Those who have received TRAFFIC VIOLATIONS (including parking/speeding tickets, etc.) and other minor violations (i.e. littering, etc.) most likely will NOT be prohibited from entering Canada. Similarly, those who have JUVENILE CONVICTIONS (convictions for crimes committed while under age 18) most likely will NOT be prohibited from entering Canada unless they could have been tried as an adult for their offenses.

If you plan a trip to Canada think six moths ahead and have a good lawyer, like me, obtain for you a TEMPORARY RESIDENT PERMIT, APPROVALS OF REHABILITATION, AND/OR PERMISSION TO RETURN TO CANADA, each of which requires extensive paperwork from the US.

The Future of DNA

2007-02-24T10:17:00.000-08:00

We all know or have heard of innocent people being released from prison after DNA testing; according to the Innocence Project there have been 192 such cases since the question first arose. But how reliable is DNA and what is its future?

The answer to the first question is highly reliable BUT if and only if proper procedures are followed to avoid contamination. Recent cases have called into question DNA results where 3rd party DNA appeared on the evidence which could not be identified; these cases resulted in reversals because the DNA did not disclose this fact to the defense. Where does this 3rd party DNA come from? Who knows really but probably from someone who handled the petri dish containing the sample or someone at the factory who assembled the kit in the first place.

But this does seem to cast some doubt on DNA evidence. Is it enough to be reasonable? Probably not. One can imagine a future in which the role of defense counsel is reduced as criminal trials become a battle of scientific experts. Within the next 20 years I predict there will be a national DNA data bank. Why then bother with a trial at all: DNA match and summary punishment. Orwell could not have imagined worse.

Unreliability of Any Line Up???

2007-02-21T16:06:00.000-08:00

From this week's Economist:

THE difference between fuzzy perceptions and hard science can mean everything to someone who has been falsely accused of a crime.
According to the Innocence Project, a non-profit legal clinic attached to Yeshiva University in New York, DNA evidence has so far helped to exonerate 194 people in the United States who were wrongly convicted, and who spent an average of 12 years in prison before being released.
Of the wrongly accused, over 75% had been mistakenly identified by eyewitnesses.

Since using witnesses to weed out suspects remains a crucial tool for investigating crimes, groups across the country--from crime commissions to state legislators--have been looking for better ways to run police line-ups. That effort is spotlighting an academic debate about psychology and research methods. And it has now triggered a lawsuit over a pilot study of three police departments in Illinois.

In traditional police line-ups (as featured in many a celluloid crime
drama) investigators show eyewitnesses a group of subjects or a palette of photos and ask whether the criminal they saw is among them. Many psychologists and criminal defence lawyers have called for a switch to another method that is different in two important ways. First, they say, the officers handling the line-up should not know which members of the group are "fillers": ie, innocents who have been added merely to make the eyewitness choose. That way, the witness does not pick up any cues, intentional or otherwise, about which subject the police suspect.

Second, say psychologists, eyewitnesses would respond more accurately if they could see subjects one at a time, rather than seeing a whole group at once and making relative comparisons. A number of research studies in academic settings have suggested that this method, called "sequential double blind", would lead to fewer witness errors than traditional line-ups. New Jersey's attorney-general recommended the new method to the state's police department in 2001. Since then, attorneys-general or crime commissions in Wisconsin, North Carolina and Virginia have endorsed the reforms in different ways; and legislatures in five other states are considering them.

This reform drive was called into question last year, however, by a pilot study in Illinois. Unlike earlier research, which often used video clips or other methods to simulate crimes and witnesses, the Illinois study was the first and only one to compare the two methods in the field using actual cases. During 700 or so real police investigations in Chicago, Evanston and Joliet, eyewitnesses using sequential line-ups were less likely to name the police's suspect, or anyone at all, as the criminal.

That is an ambiguous result, since the police, of course, could have been wrong about some of their suspects. But eyewitnesses using sequential line-ups named fillers as criminals--that is, they wrongly accused people who were definitely innocent--three times more often than witnesses who looked at traditional line-ups.

Many reforms remain convinced that the newer method is better, but concede that the Illinois study has slowed their political momentum. So earlier this month two reforming groups--the National Association of Criminal Defence Lawyers (NACDL), and the MacArthur Justice Centre at Northwestern University--filed a legal demand for more details about the pilot study. Scott Ehlers, who deals with state legislatures for the NACDL, says that some of its results are "fishy". The Chicago police, however, say that they are innocent. No eyewitnesses have come forward.

See this article with graphics and related items at http://www.economist.com/world/na/displaystory.cfm?story_id=E1_RSDSQPD

Justice or the Law

2007-02-13T11:10:00.000-08:00

Not the same concepts are they? We all know of unfair laws or laws that are fair but not applied fairly. In the 19th century the Fugitive Slave Laws required that escaped slaves be returned to their masters. Is this just? Not unless slavery is just. Many were arrested during the civil rights movement for breaking laws in order to protest the existence of segragation. Is it just that these people should be imprisoned for what they did? Only if you believe segragation of the races is just.

There are times when our own notions of justice and the law conflict. If we are asked to sit as jurors in a case involving such a situation what is our duty: to follow the law or to do justice? When a lawyer appeals to the jury to do justice when that means refusing to apply an unjust law that is called jury nullification. But although in a criminal case the jury has the power to do what it considers right, the judge will tell you that jurors do not have the right to do so. In fact many judges will accuse lawyers of violating the standards of professional conduct if they seek jury nullification. The rule from the judge's perspective is easy: the judge explains the law to the jury and the jury then applies the law as explained to the facts of the case.

Today many believe that the terminally ill have a right to die, although in most states to assist them in doing so is to commit murder. Is it just that people who pull the plug on hopelessly ill relatives be tried for murder? I believe most of us would at least say it is a personal choice which is beyond the law. Is it just to punish those who supply the ill with marijuana to alleviate their pain? Most would say no but the law in most states prohibits the distribution of marijuana and such a person would be subject to prosecution for doing so.

Does a soldier have a right to refuse orders in a war he considers unjust, or to refuse an unjust order in a lawful war? In the Vietnam era many refused orders on this basis and a few were prosecuted. What then is the role of the judge or the Court? To follow the law or to do justice? In today's Iraq war, a few are beginning to question the war's legality; do they have a right to refuse to go there if ordered?

The law simply doesn't have all the answers or, to put it another way, the law has all the answers up to a point where human conduct takes us into uncharted waters. I have a case like this coming up for trial; I know the judge will lose it if he thinks I am going for jury nullification. I know it is not just that my client be convicted for behavior, that while illegal, did not cause the kind of harm the law is meant to prevent. If I do my job, as the law intends it, I must follow the law in defending my client. If I seek a just result I'm going to have a bumpy ride at the trial. A dilemma, huh?

Inmate Transfers Out of State?

2007-02-05T08:52:00.000-08:00

Just when I was beginning to like Arnie again, I see news that he has signed an order transferring 5,000 inmates to other state prison systems. Likely transfer states are Mississippi, Arizona and Oklahoma, where private prisons flourish. While it is doubtless true that California's prisons are horribly overcrowded, shipping prisoners to private prisons far from their homes and loved ones hardly seems a humane solution. Prisoners can appeal the transfers, although the grounds are not clear.

I guess at heart Arnie will always be the Terminator, ruthless, cold, inhuman.

Determinate Sentencing Overturned--Rehearings Possible Statewide

2007-01-23T08:20:00.000-08:00

The United States Supreme Court Monday struck down California's determinate sentencing law, opening the way for thousands of petitions for resentencing. In Cunningham v. California 07 C.D.O.S. the high court ruled that sentencing enhancements decided by judges are properly the province of the jury. Under current law, an offense carries three possible sentences, the judge being obligated to make the middle choice unless he or she finds mitigating or aggravating factors. The Supremes held that finding whether those factors exist is up to the jury not the judge.

It is unclear whether the decision will be retroactively implemented. Regardless, it seems that thousand of those previously convicted may be now able to file for resentencing hearings before a jury. See your lawyer or call KLG at 415-753-1889 for help.

Expungements--What They Don't Do

2007-01-21T16:40:00.000-08:00

Many clients approach me wanting their criminal record cleared or expunged. Assuming they qualify, I must petition the Court to vacate their previous gulty plea and enter a plea of not guilty. If the Court does so, many regard their record as sealed but it is not. The statute still requires that you disclose your conviction in response to a direct question when applying for a government job, applying for a license (doctor, lawyer, accountant) or when contracting with the California lottery.

The California Judicial Counsel goes further saying you must answer a direct question about convictions from any potential employer, public or private.

More importantly your criminal record is not sealed. Your arrest still appears on police rap sheets, and in Court files. In can be used to enhance your sentence in later convictions. Investigative private agencies can and do get this information for private employers. Once the information is obtained by any agency it is shared with all much like a credit report.

The exceptions to the cleansing effects of expungement are so wide you could fly a 747 through them. Attorneys who tell you this procedure frees you up for a new life either don't know what they are doing or are dishonest.

There is a procedure which actually results in the destruction of your criminal records but it requires that you prove you were "factually innocent" of the accusation with which you were charged. Few people are able to prove this. There are also Prop 36 dismisals which will erase certain drug arrests (usually those for personal use). But even here if any investigative agency has a record of your arrest, it stays out there waiting for someone to request it.

There are advantages to expungements, particularly in immigration cases. Be careful, however, of what you are promised before forking over $1500 to a private attorney to "rehabilitate" your record.

Jack's Dilemma

2007-01-17T16:12:00.000-08:00

You're probably wondering what happened to Jack. The shrink said he was psychotic but found him competent to stand trial. Competent simply means you know who the judge is and his role, as well as that of your lawyer and the DA. That's competent. Otherwise you can be seeing the courtroom in psychedelic zoom in and still be fit to go to trial.

So Jack's going to trial. He got busted again for telling his wife via the Internet that he loved her. Another $7500 in bail that Jack doesn't really have. But the trial keeps getting delayed. The judge regularly assigned to our courtroom has been laying low recently and the substitutes could be my grandchildren. So Jack gets one continuance after another. In February, IF the regular judge is there, I imagine he's going to start setting Jack's many indiscretions for trial.

Jack's defense is that he never hit her and I believe him. The domestic violence laws, however, include many other things besides classic battering: verbal abuse, stalking, threats. Jack can't get that one through his skull. His wife finds his many love letters harassing and in the end it will matter very little that he never hit her.

It's called the DV trap.

What Is Criminal Law?

2006-11-30T13:08:00.000-08:00

If war is the continuation of politics by other means, then civil litigation is the continuation of business by other means. “Getting to yes” means confrontation, struggle, damage awards and attorneys’ fees. In civil litigation, businesses use litigation as a weapon to gain market advantage, protect a patent or process, or simply to hobble a competitor. I had my start in business litigation, there being few opportunities for me at the time in criminal law. Businesses resort to litigation when they perceive it to be in their best interests despite the costs and the disruption of their principal activity, making profits.

In my experience, however, when businesses have at each other, usually each side has some rational goal it is pursuing and the decision makers are relatively unemotional about the process, even when the stresses and strains crack their composure. And there is an element of freedom of choice: in most cases even though litigation is initiated, a business can retreat, settle, attack, or appeal.

Criminal defense bears little similarity to business litigation. The accused is not at the bar because he or she has made a quasi rational choice to be there. Often the accused is incarcerated pending trial for something he may or may not have done. He is led from the jail to the courthouse in chains and returned by the same means. The whole force of the state is being brought to bear against him in a setting that has little to do with rationality.

The whole apparatus of criminal law rests on a structure that is intentionally repressive, often in irrational ways. A man arrested for beating his wife may or may not have struck her but the system cares little about whether he did or not. The accusation is usually enough; if the accused attempts to defend himself, he will be told that he is in denial.

Aside from the many irrational rules that govern life in a jail or even in prison, in at least 90% of the cases the fate of the accused is decided by plea bargaining, a system of negotiation that is stacked against the accused. You are accused of assault but you believe you were acting in self defense. Without witnesses or an admission on the part of the victim you have a hard way to go. Someone’s nose was broken, his vision may be affected, you could go to county jail for 12 months or state prison for a longer time. Could go, that’s the catch. You almost certainly won’t serve that much time but there is no guarantee that if you go to trial and lose you won’t get the max.

So the DA says he’ll accept a guilty plea and 30 days in the county jail: what are you going to do? The rational choice, if this were a piece of business litigation, is to limit your losses and do the 30 days. Doing the 30 days, however may impact your job, your future career, your immigration status, your choice of a profession, so the choice is heavier than 30 days as against one year. But still will you take the risk and go to trial?

In the end you do the rational thing and take the 30 days even if you are innocent. It’s the safe choice. Guilt or innocence, crime and punishment, have little to do with your outcome. In reality the whole apparatus exists to repress certain racial groups or to force acceptance of certain social policies. All your protestations are wasted energy. You stand accused; you’re going to get a disposition, and you will pay regardless of the facts that accuse you.

Your lawyer can help, although often his role will be limited to telling you when to accept a plea. If the stakes are high, a good defense lawyer may take you through trial and win your case for you. But a criminal trial in which you are rolling the dice against 25 years of your life is high anxiety, maybe the highest.

Everyone has the jackboot of the state poised above their heads anyway. Criminal law is when the jackboot of the state is brought down upon you with crippling force. It is the extension of class struggle by other means.

Back to Jack

2006-11-30T13:03:00.000-08:00

Jack is 34, Irish by birth, passionate and depressive at the same time. He married a 22 year old woman who calls the police every time they have an argument. She has had Jack arrested 3 times and confined to a psychiatric facility once. What drives Jack crazy is that every time she puts him in lock-up, she relents, writes retractions to the DA and Judge and then reconciles with Jack. A real dance away lover.

She’s now got a domestic violence restraining order against Jack. Domestic violence or DV is sanitized talk for wife beating. Either spouse can get one but very few men seek restraining orders against their wives. Of course opposing spousal abuse is PC; you can’t really take the opposite position. Jack’s restraining order is a no contact order which means he can’t phone her or even send her an e-mail. How she got the order is beyond me except she did say Jack slapped her once, an allegation he denies.

But he’s so obsessed with her he can’t stop calling and sending e-mails. The last time she had him arrested it was for a package of e-mails in which he talked a great deal about God and how their marriage was ordained in heaven. As it turns out talking about your relationship with God is not PC and the DA wants him to be examined by a psychologist to see whether he is sane or not. The judge didn’t blink an eye. Order granted.

Take notice: it may be illegal to admit that you pray in Santa Clara County. The DA said that if there were no God talk he’d recommend 30 days in jail. “But this God stuff makes me wonder if he’s all right in his head.” Wow. In God we trust. One nation under God….Makes you wonder.

So Jack’s going to have his head examined tomorrow. Once the state gets into your head it’s far worse than 30 days in jail. You have to read Orwell to understand.

Where's Jack?

2006-11-30T12:58:00.000-08:00

My client was arrested in Fresno and taken to San Jose so first I must find him before I can help. The cop who answers the phone at the jail is friendly enough. He calls me "guy." He tells me my client has been "transported" (his word) to the Santa Clara County jail; I call there. Transfered from one automated phone message to another. Finally, miraculously, I get a deputy, who tells me my client just arrived.

I think about the drive from SF to San Jose which has the fifth largest jail in the US. It's a dreary hour on the road to get there but go I must. The county complex in San Jose consists of three tall buildings: county administration, the main jail, and the courthouse (criminal cases only). You can see it from 101 but you have to take some twists and turns to land in the right spot.

It's not so easy to get inside the jail although the deputies are more helpful with attorneys than the public generally. If you know the prisoner's birthdate they can tell you which part of the jail he's in. I didn't know. Never thought to bring it with me. Prisoners also have a booking number eight digits long. That'll call up his case and location. He or she will also have a number assigned by the district attorney and finally a docket number which is the number of their case. After some gruff complaining the deputy looks up my client's name and is able to place him in the system.

"Shit," he says. "He's in the old jail."

"Where's that?"

"Follow the corridor to the elevators. Take the elevator to the basement. No buttons. Use hand signals in front of camera to indicate floor." He gives me a few signals. "When you get to the basement each time the corridor turns ask someone which way to go."

So you have to walk under the main jail to get to the old jail. It's strange following this endless twisting corridor. At one point I try to open a door and a voice over the loud speaker shouts "Wrong way, you are going the wrong way." Eventually I get to the old jail where I have to take an elevator up to my client's dormitory. When I finally get to see him he is a droopy sad looking fellow, smaller than I expected, not at all dangerous looking. There are handcuffs attached to chains embedded in the floor but the guards don't use them.We talk. Jack mainly wants out. They all do at first. Fear of incarceration. After a few days they settle down, make a friend or two, get used to it. They still want out but they don't display the panic fear of the first 2 or 3 days.

I try to figure out when he's being arraigned so I can be there. No one knows or no one's saying. Finally a deputy tells me there's a transportation order for my client tomorrow at noon. That's cop talk for he's being moved to a court room for his hearing. There's a lot of cop talk in the jail. The prisoners are called the in custodies, not prisoners. There are more rules than you'll find in Kafka. In the courtroom the in custodies sit in the jury box. You can't speak to an in custody if you're a friend or relative. That includes signals, any signs of recognition. The in custodies are a droll sight in the jury box in their orange jail uniforms and chains. They sit as if they are putting the system on trial--that's the visual anyway.

As a lawyer I can talk to my client. The deputy puts 2 chairs by the custodies, unchains my client and calls him down to sit by me. The deputy says to me "Watch your back," and I guess he's right but the custodies act as if they'd been drugged or just waked up from sleep.Each case gets a few moments. At arraignment the judge reads the custody his rights and takes a plea. If he can't make bail he stays in custody. My man can't. When we are done he looks at me wistfully from the jury box as I leave the courtroom. I get to go home; he doesn't. What a world of difference.