Court of Appeal Recuses Orange County District Attorney’s Office in Murder Case

On November 23, 2016, the Fourth District Court of Appeal affirmed the Superior Court’s Decision  recusing the entire District Attorneys Office in Orange County [OCDA] in the penalty phase of a case in which the defendant had previously pled guilty to eight counts of murder. The Superior Court concluded the OCDA had such a severe conflict of interest (its duty to fairly prosecute a case under the rule of law) with the [OCSD] Orange County Sheriff’s Department (in which the loyalty by prosecutors to  the sheriffs conflicted). As a result, the court held  it was unlikely the defendant could have a fair trial. This determination came after hearings over a period of six months in which nearly forty witnesses testified as to the systemic, known and prejudicial use of confidential informants that violated the constitutional rights of inmates, along with substantial discovery failures of the OCSD.

The ruling came after a  murder trial heavily reported by the media involving a defendant who with a barrage of gunfire killed eight individuals at a hair salon where his former wife was working. Although the Deputy Public Defender representing the defendant eventually discovered sheriff’s deputies were using confidential jailhouse informants to solicit incriminating statements from high-profile defendants, the District Attorney’s Office and its prosecutors on an ongoing basis failed to disclose this practice.

 

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

On August 16, 2016, a three- judge panel of the 9th Circuit of the United States Court of Appeals (this is the federal appellate court that covers California) ruled against the Federal Government, holding the Department of Justice (DOJ) cannot prosecute marijuana cases when a STATE permits medical marijuana &/or a business or individual is in compliance with state law.

In 2014, Congress passed a bill known as the Rohrabacher-Farr Amendment that DOJ cannot use any of its funding in any given fiscal year to interfere with medical marijuana laws in the states. In other words, the Federal Government is barred from preventing states from how they regulate the use or sale of marijuana.

This is a victory for proponents of medical marijuana laws, but there are two apparent limitations:

  • The cases will likely turn on whether there is strict compliance with the relevant conditions of state law; and
  • The Congressional appropriation restriction noted above expires 9/30/16 and, unless Congress passes a new bill to extend that prohibition, it will soon expire.

This is a unique situation inasmuch as the Federal Government has not updated its laws for40-50 years while approximately 41 states authorize at least one form of medical marijuana use. Some commentators argue the Federal Government is out of step with [what seems] a growing trend in a majority of states

We can expect to see new legislation by Congress regarding this subject very soon.

 

Appeals Court Upholds California Death Penalty

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was intoxicated.as a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

Former BP Engineer Convicted of Obstructing Justice

In New Orleans today, there was a jury verdict after the U.S. Department of Justice charged Kurt Mix, a former BP engineer, of deleting hundreds of text messages from his iPhone, thereby thwarting the investigation of the 2010 BP oil spill in the Gulf of Mexico.

Although none of the top executives of BP have been charged with crimes, this corporate entity acknowledged its responsibility earlier this year by pleading guilty to manslaughter charges for the deaths of 11 workers; and thereafter, BP agreed to pay $4 billion in penalties.

Mix was part of the team of experts involved in the efforts by BP to stop oil from gushing out of their blown-out well using a technique called “top kill.” He had access to internal data about how much oil was actually flowing from the blown-out well. It was reported that Mix received 10 individual BP notices that he was obligated to preserve all of his spill-related records. One of the texts messages was an exchange with his supervisor in which Mix estimated there were about 630,000 gallons of oil spilling per day; this amount was actually about three times greater than the estimate BP disclosed to the public at the time. By deleting text messages, the BP engineer was destroying inculpatory evidence, which would be critical proof that would tend to establish guilt of BP and its agents and employees.

 The sentencing hearing is set for March 26, 2014, and Mix faces up to 20 years in prison for this conviction.

Fort Hood trial resumes

The soldier on trial for the 2009 shooting at Fort Hood is continuing to represent himself after his standby attorneys claimed that he was trying to get the death sentence for himself.

The judge refused the attorneys’ request to be either removed from the case or be allowed to take over, saying that the lawyers simply did not agree with Maj. Nidal Hasan’s defense strategy. But they insisted, and said that they would file an appeal with a higher court.

The lawyers face an untenable conundrum in having a client refuse to follow their advice. The importance of trust and confidence as well as cooperation cannot be overstated as they are critical to the attorney-client relationship. The judge also has to struggle with guaranteeing the defendant is afforded the constitutional safeguards including the right to due process, even when the defendant refuses assistance and clearly inhibits the opportunity for a fair trial.

COMENTARY BY SAM SPITAL, SAN DIEGO CRIMINAL DEFENSE LAWYER

Couple pleads not guilty to child endangerment charges

A couple pleaded not guilty to felony child endangerment charges.

They were accused of leaving their 4-month-old son in a car. His temperature rose to dangerous levels, and he died in a hospital.

Can anyone reconcile a parent’s lifetime guilt as a result of allowing their child to die because they were using narcotics and forgot they left their infant child in the car when they remained inside their residence (perhaps using more drugs), notwithstanding the ever rising and burning temperature in their closed vehicle from the summer heat?  It is despicable and unforgiving.

This type of conduct only underscores the failure in our system to educate individuals at a very young age as well as adults through relentless media Public Announcements that drugs destroy one’s ability to exercise judgment, causing obvious lapses in memory as well as an inability to function in simple daily activities.

Is there a scintilla of evidence the parents are remorseful? The reporter failed to include any such references, leaving the reader to draw their own conclusion(s).

COMMENTARY BY SAN DIEGO CRIMINAL DEFENSE AND PERSONAL INJURY ATTORNEY

 

California officials review rehab centers after reports of fraud

Officials in California are conducting a statewide review of drug and alcohol rehabilitation centers after reports of fraud surfaced.

CNN and The Center for Investigative Reporting released joints reports stating that some rehab clinics have billed the state for patients who don’t show up, or for patients with no substance abuse problems.

It is distressing when these institutions, which are funded by taxpayers and were created to help those in need, start to take advantage of the state. They are taking for granted the millions of dollars that are put into rehabilitation programs by the citizens of the state.