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.



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.

Supreme Court Ruling Allows DNA Samples After Arrest

The US Supreme Court ruled on Monday that it is legal for the police to take a DNA sample at the time of an arrest for a serious crime.

The ruling came about after a court in Maryland said it was illegal for a police to take Alonzo King’s DNA. King was arrested for felony second-degree assault. When his DNA was checked, it matched the DNA connected to a rape and robbery case from 2003. King was then convicted of rape and received a life sentence.

As well as setting the policy for DNA swabs, the Supreme Court’s ruling reinstates King’s rape conviction, which was overturned when the Maryland court said that his DNA should not have been taken in the first place, since he was arrested for unrelated reasons.

The court was nowhere near unanimous on the issue, with five judges in favor and four dissenting.


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.

Ex-Border Patrol agent sentenced for theft, child porn (Sam Spital)

Commentary by Criminal Defense Lawyer SAM SPITAL:

“A former Border Patrol Officer convicted of interstate transportation of stolen goods, theft of government property and possession of nearly 400 photos of minors engaged in sexually explicit conduct was reported by CBS8.com on January 14, 2013. The U.S. District Court Judge sentenced the defendant to 3 years in federal prison and was ordered to register as a sex offender (RSO) on his plea to the theft of night-vision goggles worth approximately $10,000 and a GPS unit worth under $100.

The story did not contain any facts regarding the defendant, his lawyer’s arguments nor position of the defense. Little was revealed as to the social and family history of the defendant nor evidence of mitigation and/or remorse. Accordingly, it is difficult to evaluate the case and offer any thoughts or opinions.”

—Sam Spital

California Attorney General Kamala D. Harris Announces Nurse Sentenced to 3 Years in Prison for “Convenience Drugging” Elder Patients

Commentary by San Diego Criminal Defense and California Professional License & Statewide Administrative Law Attorney Sam Spital:

“On January 9, 2013, the Sierra Sun Times, a local newspaper in Mariposa County, California, reported Gwen Hughes pled nolo contendere and was sentenced to three years in state prison for one count of felony elder abuse with a special allegation that the abuse contributed to the victim’s death. The article revealed the former licensed Registered Nurse ordered the administration of psychotropic medications to 23 elderly residents under care and treatment for Alzheimer’s or dementia at a skilled nursing facility who were noisy, complained &/or were argumentative as well as prone to wandering, to control and quiet them for the convenience of the staff and not for therapeutic reasons and/or prescribed by a medical doctor. According to the news article, the drugs accelerated the death of 3 patients, and all of the specific residents in question experienced an adverse physical reaction.

For a copy of the the Court Order previously suspending her license, you can click the following link:https://rn.ca.gov/public/rn260423.pdf The online license history of the former RN reveals she also allowed her license to expire (see: https://www2.dca.ca.gov/pls/wllpub/WLLQRYNA$LCEV2.QueryView?P_LICENSE_NUMBER=260423&P_LTE_ID=828) The article also noted the Medical Director of the facility, Dr. Hoshang Pormir, failed to conduct examinations and monitor the reaction to medications and as a result was placed on probation by the Court, required to make restitution in the civil lawsuits that were pending and to perform 300 hours of voluntary service.

Nothing was reported concerning any interview or dialogue with the nurse or physician, their prior employment and social history, mitigation and’/or remorse, if any. Since there are many factors considered in the sentencing of a defendant, these elements are critical to the analysis by a criminal court judge. Crimes are generally punished according to the seriousness of the offense. As a criminal defense lawyer as well as in administrative law matters, I argue in favor of mitigation, using some or all of the following elements: (1) a client’s prior criminal record; (2) her age; (3) her work history; (4) her social and family history, including use of drugs and/or alcohol; (5) her religious history; (6) whether a weapon was used in the offense. Clearly, the circumstances surrounding a crime may be of interest, however the defendant’s personal history can be persuasive as well as significant factors of rehabilitation and remorse.”

–Sam Spital

19-year sentence for fatal rock beating (Sam Spital)


“On November 15, 2012, the UT San Diego news reported the defendant with a long history of drug related offenses in a revenge and repeated beating with a rock to the head of a 31 year old homeless man was sentenced to 19 Years to Life in State Prison for Second Degree Murder, and Threatening a Witness and Assault with a Deadly Weapon on another person. The defendant was represented by a Deputy Public Defender who alleged: ‘his life appears to have been eroded by drug use.’ When asked by the Judge what facts were in dispute, the article noted the defendant’s appointed counsel did not provide any specifics. This is a tragic example of the scourge of addiction and how even during and after incarceration, adequate treatment is misdirected or absent”


Confessed murderer sentenced to 80 years to life in prison (Samuel Spital)

“A former nurse pleaded guilty to two counts of second-degree murder in the slayings of (1) his estranged wife, who was a nurse and almost half his age, previously filed for divorce and kicked the defendant out of the condo they earlier had occupied, and (2) a male co-worker who was also a nurse, after seeing them together cuddling on a couch, as reported in the UT San Diego news on October 10, 2012. When the guilty plea was taken, the defendant agreed to an 80 year state prison sentence.

The news account did not report any defense statements or evidence, or a presentation regarding remorse in order for this writer to render an opinion regarding the sentence. However, the Deputy District Attorney stated the defendant “is believed to have watched the victims from a backyard area before ‘shooting his way in,’ which would likely be strong evidence to establish first-degree Murder since there appears to be premeditation and malice, being willful and deliberate. Also, it would ordinarily refute a claim the homicide occurred in the heat of passion or spur of the moment (second-degree homicide). It appears the plea deal avoided the necessity of a trial and benefited the prosecution while at the same time it circumvented a Murder One conviction, thereby an inducement to the defense.”

Criminal Defense and Professional License Attorney

Court: Convicted Crowe killer due new trial (Sam Spital)

“In the UT San Diego News, October 2, 2012, the author reported the U.S. Supreme Court denied the Petition for a Writ of Certiorari filed by the California Attorney General’s Office, who sought review of the United States Court of Appeals for the Ninth Circuit decision that reversed the 2004 voluntary manslaughter conviction of Richard Tuite for the killing of Stephanie Crowe in 1998. This is the case in which the police first investigated Stephanie’s brother, Michael Crowe, and his two friends, but just before trial dropped the charges against them when they found the 12 year old girl’s DNA on Tuite’s clothing. If the AG’s Office does not seek another trial of Tuite, he will be released from State Prison. On the other hand, if the Supervising Deputy Attorney General handling the case seeks a new trial, he cannot file murder charges as that would be double jeopardy since Tuite was acquitted of murder in the San Diego Superior Court trial in 2004.”


Mother Sentenced in Daughter’s Murder (Sam Spital)

“A mother was sentenced after her guilty plea to Second Degree Murder in the death of her nine year old daughter, as reported in the September 19, 2012 NBC digital edition of the news.

The story described a daughter who suffered an agonizing 17 months of continued strangling, kicks, burns and punches after she moved from the custody of her father to that of her mother. Her final days were a “slow and painful death.”

The mother was sentenced to 15 years to life in State Prison.  Without knowing more, it is a challenge for anyone to know and understand what was going on in the mother’s mind.

These homicides are the types of cases that a criminal attorney has to fully investigate in order to shape a defense, which does not mean one seeks to deny and/or excuse the behavior. Instead, the defendant’s attorney hopes to present to the court any mitigation and extenuating circumstances that exist when imposing punishment. For some, there could be no amount of evidence to persuade them to have mercy in a murder case. For others, there is a desire to understand the Defendant’s family history, her childhood, education, the victim, and finally the offender’s mental state so the punishment fits the crime. In other cases, the court looks only to the statutes and precedent in imposing a penalty.

While the child has lost her life, the mother will likely never escape the constant guilt of killing her daughter, a homicide that is unspeakable by nearly everyone’s account.”

SAM SPITAL, Criminal Defense Lawyer


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