LINGUISTICS AND THE PRACTICE OF LAW

Linguistics is the study of language. It is reflected in everything we say and what we do. Essentially, it impacts how we communicate with others. In this regard, every word can have significance; many of which are like a double-edged sword, in which there can be two completely different meanings.

To be effective in the practice of law, one must truly understand the impact EACH word has, which includes knowing how and when to be concise instead of wordy; and, to know whether we are in fact, as well as how to be, convincing instead of unpersuasive.

There is a distinction between “effective” counsel and “competent” legal representation in that the latter is legal advice and counsel without errors, such as whether the advice and representation would result in the denial of a fair trial. This is often classified as malpractice or negligence. On the other hand, one may not have departed from the elementary standards applicable to the practice of law and, therefore, not be negligent. However, one can still be “ineffective” by failing to obtain a winning result. In the practice of law and to be effective, a lawyer should strive for superior advocacy; this should apply to how one drafts legal documents; presents oral and written arguments; drafts and finalizes written communications; as well as the basic dialogues we have with those with whom we know and/or those with whom we want to influence by producing a positive response, feeling, or opinion.

It is the “art of communications” to know what to say, how to say it, when to say it, and, where is it acceptable or beneficial to do so. Additionally, one needs to know when to say no more, if only to allow the other individual an opportunity to digest what has been said and to reply, if desired.

Here are some considerations to help illustrate the above:

  • Is the same writing style and techniques in sending or responding to texts satisfactory in writing a letter, greeting card, etc.?
  • Do you communicate the same when conferring with a loved one, family member and/or friend? Are there differences when applying for a job; writing an essay or term paper for school or college; or submitting written arguments to the adversary in a case; to an organization; an arbitrator; judge; and to an administrative agency?
  • The tone of our communications can have a different impact, perhaps one that is not intended at all. The way words are expressed can lead to different meanings. For example, stating “I love you” in an angry or sarcastic voice vs. gently and softly saying the words “I love you.” Can you “hear” the difference? Try saying the same words in a different tone and you will see the reaction [the former angry tone likely will cause  a baby to cry, out of fear].
  • What about language in politics, in newspapers and television broadcasts? Are they fair and balanced?
  • In addition, should one consider the source of the communication; the activity and context in which the communication is made; as well as the credibility of the speaker or writer?
  • When is it appropriate to make a complimentary remark in contrast to ignoring what others may say or do that truly is, or seems improper?

Whether through linguistics and/or superior advocacy, the goal of a lawyer is to evoke an acceptance of an argument or obtain support for his/her argument. It is fair to say, effective legal counsel utilizes a combination of compelling and cogent language with logic and reasoning. Essentially, this involves both the “art of communication (linguistics)” and the “art of negotiation.”

 

Canadian Government Legalizes Marijuana

On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

California Recent Change to Marijuana Law

Under the ballot measure designated as Proposition 64 that was passed by 57% of the voters in the November 8, 2016 election that became effective November 9th:

1) those convicted of a felony as a result of possession, transportation &/or cultivation of marijuana can have it reduced to a misdemeanor;

2) the County Public Defender in San Diego has offered to file the Petition for free even if the crime occurred years ago, and even if the defendant was previously represented by private counsel;

3) if the San Diego District Attorney decides there is a basis to have the felony reduced to a misdemeanor, the defendant may not even have to appear in Court;

4) the current process in San Diego allows the Superior Court to re-sentence a defendant from a felony to a misdemeanor, or dismiss the charges [it would seem beneficial to have private counsel if one hopes to obtain a full dismissal of a prior felony conviction];

5) the law also now permits anyone over age 21 to possess up to 28.5 grams of marijuana, or grow at any one time up to six marijuana plants at their residence.

6) the maximum penalty is now up to six months in the County Jail and/or a fine of up to $1,000 for those who grow, transport or sell marijuana, which are now misdemeanors.

7) there are certain exceptions causing the case to be charged as a felony, such as:

  • the defendant has prior convictions for the sale of drugs;
  • the defendant is charged with transporting marijuana into the United States &/or across state borders. For example, one cannot obtain marijuana in a state in which recreational use is legal and bring it into California;
  • the defendant has a prior conviction of certain felonies that are deemed “strikes;”
  • the defendant is a Registered Sex Offender [RSO].

8) in addition, there are miscellaneous restrictions in connection with marijuana, such as:

  • there are Federal laws that apply to the use, possession, sale, transportation and/or cultivation of marijuana;
  • driving while impaired by the use [under the influence] of marijuana is a crime in California;
  • smoking marijuana (a joint) (pot) in public is still illegal;
  • a store, shop, or retail establishment that sells recreational marijuana must check ID’s to be certain they are not selling marijuana to a minor; and such a business cannot be within 600 feet of a school, daycare or youth center;
  • unless the law is amended, a medical marijuana dispensary and/or an entity that cultivates marijuana cannot legally sell to an adult recreational user [includes social, personal or nutritional uses] until January, 2018;
  • advertising that is aimed to minors is prohibited;
  • a city or municipality has the power to issue an ordinance to ban the sale of marijuana; and if they permit such a commercial entity to do business, they have the power to regulate those entities under zoning laws.
  • an employer can lawfully require all prospective employees to pass a drug test as a condition of employment for certain positions as long as no individual or group is unlawfully selected, such as discrimination on the basis of race, nationality, religion, sexual preference, etc.
  • an employer can lawfully refuse to hire an employee who has tested positive for marijuana, even though it was legally prescribed for a medicinal purpose

9) nonetheless, there are still advantages to have a felony reduced to a misdemeanor, including but not limited to allowing an individual to maintain &/or obtain current and future: employment, security clearance, insurance, rent or lease property, and, in specified instances to possess a firearm, etc.

On the other hand, it is still likely if one has a professional or occupational license in California, or seeks to obtain such a license,  the state licensing Board, Bureau, or Department will require one to report a crime, whether a felony or misdemeanor; and, they will investigate and likely file an Accusation even if a misdemeanor is expunged. At Spital and Associates, we aggressively seek to present a comprehensive and cogent treatise with a compelling defense and offense and utilize forensic experts (adding the technical science) to marginalize any such investigation or Accusation.

Any discussion of marijuana of necessity has to include what opponents consider to be the dangers of such use. The short term effects include but are not limited to causing changes in a person’s mood, but  it can also impair body movement; as well as difficulty in attention and/or memory (learning) and/or problem solving (thinking). It has also been reported that marijuana raises one’s heart rate, which can increase the risk of a heart attack, particularly with older individuals and/or those with congenital or later developed or contracted heart problems.

The long term effects can adversely impact the previously mentioned mental abilities, and possibly cause permanent loss of certain brain functions. In some individuals,  the long term use of marijuana can cause temporary symptoms such as paranoia and hallucinations, as well as anxiety and depression that has been linked to mental illness. Not only can there be a loss of physical and/or mental health, but it has also been described as a “gateway drug” because it can lead to the use of other drugs and narcotics (some of which are highly addictive and deadly).  In addition, the smoke can harm a person’s lungs and, therefore, cause lung cancer. The risk to the development of a child during and after pregnancy is still unknown. When one seeks to stop using marijuana, there may be withdrawal symptoms.

You are encouraged to consult with a physician in terms of  medical and psychological issues; and, it is recommended that you obtain the advice of an experienced lawyer in regards to each and all of the above items to determine whether and to what extent any apply to you, a loved one, and/or a friend or associate. If you desire a Free Attorney Consultation, call 619.583.0350 and ask for Sam Spital, Managing Lawyer or send an email

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.

 

Wrongly Convicted Man “Truly Happy” After 14 Years in Prison

An Alameda County judge has overturned the conviction of an East Oakland man who served 14 years in prison for an attempted rape he did not commit. He spoke publicly for the first time.

Through the use of DNA, a team lawyers and students were able to prove that the 37-year-old was not guilty. The evidence showed that the DNA found on a 9-year-old’s T-shirt did not belong to the man. It was the DNA that led to his arrest in 1998.

Despite having served more than a decade in prison, the now free man expresses an eagerness to learn from previous experiences. Among his future endeavors, are the obtain employment and going to school.

The California man is the second innocent person to be exonerated this year.

Are Firearms The Real Problem or People Who Abuse them?

With the escalating scourge of mass killings, we are obliged to examine both the underlying causes of and potential solutions to drastically reduce mass shootings, by those with depraved and evil minds, sociopaths, psychopaths, terrorists and barbarians who without any conscience (morals) whatsoever use military style assault weapons and/or stockpile and then utilize huge quantities of bullets and large quantities of ammunition magazines to murder innocent and unsuspecting individuals regardless of age, race, sex,  .

It is noteworthy, the subject of colossal shootings is complex and there are clearly two sides of the equation. Moreover, these concerns are not new; sadly and repeatedly have political overtones. Hence, it is hoped the reader of this blog will perform his/her own search on the internet to review state and federal firearms laws, exceptions, limitations and other issues, including actual statistics. We should be mindful that these are serious and horrific acts, yet we need to acknowledge there also are far more deaths that are due to other causes (such as deaths due to driving under the influence, but for the sake of this comment only and albeit an over simplification and generalization, but we do not outlaw or seriously limit the sale &/or consumption of alcohol).

Proponents of gun control claim we need stricter gun control laws. Opponents claim we already have strict regulations, and in those jurisdictions that have “gun-free zone” laws in which it is prohibited from having a firearm these locations have a far higher number of shootings.

First, it is noteworthy, that the Federal Gun Control Act, enacted in 1968, establishes a list of those (such as felons) who are prohibited from possessing, obtaining or receiving firearms and ammunition. In addition, there are many other restrictions as to the sale, use, possession, transfer, etc. of such weapons. Click the following link for the 247 page Federal Firearms Regulations: Federal Reference Guide

Second, California has one of the strictest gun control laws in the United States. Yet, the recent shootings in San Bernardino, a large metropolis in California, occurred even though assault weapons were used and are already against the law. Also, California has a huge number of restrictions, such as limiting large capacity magazines that hold a dozen or more bullets. Click the following Link for the California Firearms Laws summary: California Firearms Law

Is the solution to enact tougher gun laws? If so, why did the most recent shootings occur in three states (California, Colorado and Oregon) that already have very strict gun laws?

Some pundits argue the states that have the most lenient rules and regulations regarding firearms have the lowest number of mass shootings; perhaps, because terrorists look for sites where they will not face opposition by individuals that “carry” weapons. Maybe that is one of the reasons movie theaters and malls, shopping centers, schools, churches and social centers, etc. have been the place of choice and selected by such terrorists. These same pundits encourage individuals to arm them self to be able to defend and/or fight back; they note that police cannot be on every corner and the drive time to respond is too great to risk your death or anyone else in the interim. Some advocate we urge our legislators to pass emergency legislation to increase the number of police, sheriff and FBI, and give them the power they need to accomplish their job.

It is hoped this blog will open a further dialogue in the reoccurring debate that includes many who claim taking away &/or more severely limiting those law abiding individuals who desire to possess and/or carry firearms will not prohibit the lawless, who it seems inevitably find ways to obtain whatever weapons they desire, whether illegally or not. Choose the narrative you feel comfortable with, but be open to seeking a realistic solution that is based upon logic, reason, and, of course, our United States Constitution, and not political rhetoric. Contact your state and federal legislators to voice your opinion.

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).

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.

Boston Bombing – A Fortuitous Event?

On the anniversary of the Boston Bombing, April 15, 2013 in which three innocent victims were killed and nearly 300 others were injured, many are asking whether this was a fortuitous event, or calculated killings by terrorists using weapons of mass destruction. Even more compelling is the surfacing of information that one of the bombers has been linked to a triple murder in 2011 in which three individuals had their throats sliced. These insights raise a question as to whether the bombings last year could have been prevented had even only one of the radical extremists been arrested and convicted for the slayings in 2011.

Some commentators contend the government lacks the tools to prevent such horrific crimes to maintain the safety of our citizens. Others believe it may be politics and a lack of communication between agencies; they remind us of the 9/11 deaths they claim may have been prevented had the CIA and the FBI shared data bases and the substance of their respective investigations. The sad reality is that religious fanatics are rapidly increasing all over the world, and many in society are afraid to criticize under the veil of freedom of religion. Regardless how small in number they may be the fact remains the murders that have been committed have changed the way far too many people all over the world now have to live. Few will take issue with the fact we need to do more for the family members of those killed, other survivors and first responders, and to pay tribute to each and every one of them.No one disputes that we need to put a stop to senseless carnage.

POT DEALER TO DO 8 YEARS IN FEDERAL PRISON (Sam Spital)

COMMENTARY BY SAN DIEGO CRIMINAL DEFENSE LAWYER, SAM SPITAL:

“On January 24, 2013, according to the UT San Diego electronic news, U.S. District Judge Irma Gonzalez sentenced 32 year old Joshua Hester after a guilty plea to more than eight years in Federal Prison for money laundering, maintaining a drug-related business, conspiracy to distribute more than a ton of marijuana, and other charges. The Federal Government lawyer argued and the Judge agreed in imposing the sentence that Hester operated a multi-million dollar business in two medical marijuana dispensaries and used the state law to seemingly shield his operations for dealing in the sale of illegal drugs.

In 1996, Proposition 215 was passed in California as an Initiative (commonly known as the Compassionate Use Act of 1996. The purposes of the Act are to ensure seriously ill individuals have the right to obtain and use marijuana for medical purposes as long as the medical use is deemed appropriate and has been recommended by a physician who has determined the health of such individuals will benefit from the use of marijuana in the treatment of medical disorders and diseases such as cancer, AIDS, chronic pain and arthritis,  migraine headaches and/or any other illness for which marijuana is deemed to provide relief.

Essentially, under California law, one can use marijuana for medicinal purposes as long as there is a recommendation by a physician.  In addition, the Medical Marijuana Program (MMP) was established in 2003, pursuant to Senate Bill number 420 that was passed as an extension and clarification to provide qualified patients and their caregivers a registration program and the issuance of a voluntary medical marijuana identification card. The problem is that since 1972, the United States Congress has listed marijuana in Schedule I of the federal Controlled Substances Act, which means that it has no accepted medical use and is illegal under Federal law. Since that time, however, 17 of states and the District of Columbia have legalized the medical use of marijuana given the opinion that medical marijuana dispensaries are operated for the public good to serve those who are seriously ill and as such have found relief from marijuana. The debate will continue as long as there is a conflict in State and Federal law.”

–Sam Spital

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