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.

 

California Death Penalty. Vote November 8th

There are two measures  that deal with the death penalty in California that are on the ballot in the forthcoming November 8th election. California has the largest number of inmates awaiting the death penalty of all the states. The last execution in California was about ten years ago when it was legally challenged because of a claim, among other things, that the process of using lethal injections was inhumane. The last attempt to abolish the death penalty occurred in 2012.

The first measure on the ballot is Proposition 62, which replaces the death penalty with life in prison without any possibility of parole and applies retroactively to all previous and existing cases in which anyone is currently incarcerated and facing the death penalty. If enacted into law, it will [also] apply to all future first degree murder convictions in which the death penalty would have been the sentence. In September of this year, a Field poll was conducted of likely voters and found that a plurality of voters (the most posted online votes, but not a majority of all votes which would be over 50%) wanted to abolish the death penalty and, therefore, voted that it be repealed. It is noteworthy that there were a substantial number of “undecided” voters, however,  and they will likely make the difference in the outcome on November 8th.

Those that oppose the death penalty cite, among other things, the following reasons: it is unfairly applied to minorities, the procedure is inhumane, and the process is costing far too much to the people of the State of California. Proponents of execution as the form of punishment assert this penalty is reserved for what can best be described as a most heinous and despicable crime against humanity, causing unparalleled and life long suffering to the families of such victims; and, there are newly developed procedures associated with death penalty cases that are being considered.

The second measure on the ballot, Proposition 66, is considered a competing measure and much different than Proposition 62 in that it speeds up executions and the death penalty process by requiring the outcome of a defendant’s appeal to not take more than five (5) years. A little over 1/3 of those in the Field poll noted above were in favor of this Proposition, but more importantly, about 42% of those who were polled were “undecided” and will indeed make a difference in the outcome of this Proposition.

To promote justice for whom they claim at this point in time are at least 1000 victims and their families, there are District Attorneys in the multitude of California counties, the California Highway Patrol Association and Peace Officers Association, along with victim advocates who are among those behind Proposition 66 declaring it to be much needed. The Office of the California Legislative Analyst reported when it last made a study it costs nearly $50,000 per year per inmate to be incarcerated in our State Prisons. The cost of a death row inmate is about $90,000 more per year due to the costs of lengthy and complex appeals to the California Supreme Court, which currently has a backlog that can take ten or more years for a ruling.

Today, there are about 750 Death Row inmates that for decades have been incarcerated in prisons. Proponents of Proposition 66 also note such inmates get three meals a day in state prisons that have heating and air conditioning; with access to cable TV and a library; and each receive nearly unlimited heath care, including but not limited to eyeglasses; dental care; hearing aids; hip, kidney, knee, heart and sex change surgery, all of which are often far better than most of us who do not get free health care, including senior citizens who often cannot afford the escalating cost of living, prescription medicine and/or a satisfactory long term care facility. In summary, these are stated as further grounds to support Proposition 66 and limit the current delays and streamline the criminal justice system in California.

If both measures were to pass on November 8th, then the one with the greatest number of votes will become law in California.

You are urged to vote on these and other critical issues that concern all of us in the forthcoming election.

WHAT TO DO IF YOU GET PULLED OVER?

Knowing what to do in the event you get pulled over is very important. However, it is equally important to know the reasons for getting stopped by a law enforcement officer so as to avoid being pulled over in the first place.

Here are a few of the top reasons:

  1. Speeding. Clearly, driving above the speed limit is most likely going to catch the attention of the police, sheriff or C.H.P. Because it will take longer to react to an unexpected event, and the braking distances increase the faster one drives, this is the number one reason law enforcement pull over drivers as it obviously helps prevent accidents.
  2. Cell Phones. With the proliferation of mobile devices, nearly everyone is using a cell phone throughout the day and night. However, using a cell phone to text and/or talk with another person while driving a vehicle is another major reason you will get pulled over. And, to deny you were using the phone or to throw the phone on the seat next to you may not be as clever as it might seem; cell phones not only maintain their own records on the device, but can be traced to the cell towers to identify the time and location of our communications.
  3. Unsafe & Hazardous Driving. It should be no surprise that, among other things, following too closely; driving through a stop sign or red traffic signal; making an illegal U-turn; failing to yield to other vehicles; unsafe and/or improper lane changes; driving too slowly; not wearing a seat belt; and, failing to signal are at the top of the list of the various reasons for getting pulled over by law enforcement.
  4. Vehicle Equipment. At the top of the list of equipment violations are improperly (extremely) tinted windows; headlights that are inoperative (such as burned out); expired registration license plate stickers; and, having no license plate on the front bumper. These are vehicle equipment reasons officers make traffic stops.

 

Considerations:

Once you become aware an officer intends for you to stop your vehicle, you should cautiously pull over to a safe area of the road or freeway as soon as possible. When the vehicle is at rest, the motor should be turned off.

The officer will request your driver’s license, vehicle registration and proof of insurance. Being evasive or denying any wrongdoing when it is clear you violated the law is not likely to be in one’s best interest. Also, do not argue with the officer. Being polite as in most situations we face is generally the wisest decision.  By talking back to or arguing with an officer, it is likely the officer will be angered; and, being confrontational, probably will exacerbate the situation. Since an officer has discretion on how to proceed, there is little or no reason to get into a conflict with him/her. On the other hand, if the officer asks “Do you know why I stopped you,” it is noteworthy that anything you say can and will be used against you (see information below).

Some Relevant Laws:

The Fifth Amendment to the U.S. Constitution: This Amendment to the Constitution guarantees one the right to remain silent and to be free from self-incrimination. In the situation of a traffic stop, however, refusing to talk to an officer can result in unintended consequences. Ordinarily, a traffic stop is deemed an investigatory process; at the outset, you are not considered to be in custody and, therefore, there is no requirement to be admonished by law enforcement as to your rights. If you are asked to “voluntarily” come in to the police or sheriff’s station for questioning, you can refuse. On the other hand, once an individual is arrested, you will be taken into custody and, therefore, should obtain the advice of a criminal defense lawyer before making any statements. And, if the traffic stop escalates into an arrest, you should affirmatively invoke your Miranda rights under the Fifth Amendment and remain silent. However, it is important to do all of the above calmly and politely.

The Fourth Amendment to the U.S. Constitution: If an officer decides to detain you, there may be sufficient evidence to do so. If there is probable cause to make an arrest, however, the situation as noted earlier becomes one in which you are in “custody;” then, the officer must state (commonly referred to as the Miranda rights)  you have a right to remain silent; anything you say or do can and will be used against you in Court; you have a right to an attorney; if you cannot afford a lawyer, the court will appoint one. At the point of what can be characterized as a custodial interrogation, it is highly recommended you do not answer any questions nor voluntarily provide your own narrative of the facts without the prior advice of legal counsel.

This blog is not intended as legal advice. Each situation requires a proper and thorough evaluation of all of the facts and circumstances. It is noteworthy that there are many articles on the above subject matter. In addition, you can view more information by clicking the topic Probable Cause and Miranda rights.

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).

Is a University Liable for Violence on the Campus?

The California Court of Appeals was scheduled  to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and  inhumane have become a national scourge.

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

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.

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.

Undercover Law Enforcement Operations

On October 23, 2013, the 9th Circuit Court of Appeals in the case of UNITED STATES vs. BLACK, #11-10036, held a reverse sting operation by the government was not so outrageous and shocking to be barred by elementary principles of due process and fairness and, therefore, affirmed the U.S. District Court conviction of multiple defendants.

In the underlying case, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used a confidential informant (CI) to obtain potential suspects to engage in a pre-planned robbery at a staged and fictitious residence as part of an ongoing sting operation. Thereafter, under the pretense of a robbery several individuals were arrested after being enticed to go to the fake stash house (a phrase used to refer to a house where weapons and drugs are hidden). One of the individuals, Cordae Black, was charged with, a jury found him guilty and he was convicted of using a loaded firearm as part of a drug trafficking offense along with conspiracy to possess cocaine with the intent to distribute. The 9th Circuit Court found the conduct of the government to be reasonable and affirmed the lower court ruling.

What is seriously problematic is the effort by the government to employ undercover operations to seduce and entice through deceit and persuasion potential suspects when there is enough criminal activity to stop through the use of clearly orthodox and universally accepted methodologies. Criminal defense attorneys often argue that law enforcement should not be permitted to induce others to engage in illegal conduct that is based upon a mere suspicion of prior criminal activity. Against this argument are court cases that have allowed law enforcement to use undercover investigations without suspicion to believe a person has already engaged in criminal activity at the time the police afford a suspect an opportunity to commit a related offense. Before it is prohibited, they maintain there must be an undue amount of coercion, threats and/or inducements made to another to break the law. It is still up to the defendant to prove he was not predisposed to commit the crime in question.

The role of defense counsel in this and other cases is to articulate and distinguish the precise facts in order to establish a truly compelling legal argument. As such, each case will rest on the exact facts and individual circumstances, and why the art of persuasion is a primary tool of a winning lawyer.

The above reported Decision can be found at the following link: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/23/11-10036.pdf

Long-term inmates move to county jails

Governor Jerry Brown’s plan to ease state prison overcrowding has created other problems.

Now, county jails that are not built to hold long-term prisoners are being forced to take felons with long sentences. Sheriffs say that these prisoners pose security threats and are more than the jails can handle.

Though it is good to think of solutions to overcrowding, it is irresponsible to send dangerous criminals to facilities that are not equipped to hold them.