California Criminal Defense Lawyer Blog

Alex Kern, 39, former San Mateo County auditor in Redwood City, CA, who was caught with over 4,000 child pornography images on a county-issued laptop, is going to prison.

This office has received two FBI Internet porn cases recently, and this works is how it seems to work: The FBI the initiates the matter by use of Internet technology such as Internet “cookies.” They turn over the evidence to a locals0, such as the San Mateo DA, and let him do the work. Or, more commonly lately, the FBI turns the evidence over to Homeland Security or other enforcement branch with financial resources and then brings the case(s) before a federal grand jury .

Kerr had no criminal record and had pleaded for probation or at least county jail time, as opposed to prison time. He has a 14-year old daughter and an 11-year old son, he has expressed severe remorse, he is at low risk to re-offend according to is probation report, and he has just been served with divorce papers by his long-term wife.

Still, this being San Mateo County—the man got 16 months in state prison. Plus, he has the certainty of a very difficult time when he is released, as permitted by California’s sex predator laws, aside from his likely life-long federal obligations.

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Posted In: Bay Area Cases , California Cases , Federal Crimes , Internet Sex/Porn , Sex Crimes

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A California DUI with “implied malice” can result in a second-degree murder charge, according to the seminal California Supreme Court case, People v. Watson (1981), Cal.3d 290.

A leading article appearing in the winter issue of CRIMINAL LAW JOURNAL mailed to the California state bar’s criminal section members last week, offers ideas on how to best defend DUI defendants when there has been death or injury.

With death, you can be charged with:

1. Second degree murder

2.Gross vehicular manslaughter while intoxicated

3. Vehicular manslaughter while intoxicated

When there has been either injury or death, you are in a different ballpark and you need a specialist.

Why? Here is just one quote from the article:

“Due to a statutory anomaly, the actual time of incarceration
served by a defendant convicted of a felony DUI with injury
is likely to be greater than the time served by a defendant
convicted of vehicular manslaughter, while intoxicated,
without gross negligence.”

For more information on what to do if you are involved in a DUI that resulted in injury or death, contact the Law Offices of Douglas Slain.

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Posted In: DUI Defense , DUI/Drunk Driving , Sentencing

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I wanted to comment of a very thoughtful article by Adam Liptak in his “Sidebar” column in today’s New York Times. Read the original article: Study of Wrongful Convictions Raises Questions Beyond DNA

The thrust of the piece is that, despite authorities with differing opinions on exoneration and innocence (you can be exonerated by DNA but still be guilty), no one denies that, “We know very little about any aspect of false conviction. But a few general lessons can be drawn nonetheless,” he concludes, and they are these:

1. Black men are more likely to be convicted of rape than white men under the same fact patterns, especially if the victim was white.

2. Minors are more likely to falsely confess to murder than adults.

3. Defendants who maintain their innocence are more likely to be innocent.

4. The longer it takes to solve a crime the more likely the defendant is not guilty.

Everyone knows blacks are at a disadvantage in our criminal system. The surprise, to me at least, is that minors are also at a disadvantage. The last two ‘lessons’ are well known to the criminal defense bar but likely far less well known to the public at large.

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Posted In: Crime and Punishment

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Police officers and sheriff’s deputies in California are now being rated at RateMyCop.com, a web site recently created by a Culver City, CA couple.

RateMyCop covers most states with a focus on California, Texas, and Florida. Users can search for officers by name, department or state and then rank them up to five stars, according to a story appearing today in The New York Times.

Users must register before rating or commenting on the officer, but their identify is hidden otherwise and the lack of contributor transparency is the cops’ biggest beef, claiming there is no method to verify whether or not the information is accurate.

Cops are in an uproar, of course, not being used to any kind of real citizen review of their work.

Success of the site seems assured in that February 28, 2008, its first day online, GoDaddy.com was forced to shut it down after too many users tried to access the site. It is now running on another server.

The publisher of CaliforniaCriminalDefenseLawyerblog.com hopes to provide the same transparency for a number of Californians who suffer every day in dealing with their POs.

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Posted In: California Cases , Celebrity and Odd Ball

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The Justice Department has seldom prosecuted or even identified clients of prostitution for a number of years, in an unusual admission to a New York Times' reporter. Read the original article: U.S. Defends Tough Tactics on Spitzer

Today's Times front page carries a story that includes interviews with Justice Department officials who are having a hard time denying that Spitzer has been treated differently than almost any other prostitution defendant in decades.

In defending its position, the Department stated that the F.B.I. now has roughly 450 ongoing prostitution investigations, but could not deny that they all involve large enterprises and circumstances different than in Spitzer's case.

The Times' story also revealed that the federal agency charged with monitoring statistics for federal prosecution does not bother to keep statistics because "it's really not a crime we prosecute," a Justice department said.

According to an affidavit signed by the F.B.I., Spitzer proved to be "easy prey."

Speaking of our government and sex, the same Times front page carries a story involving the frequency of U.S. Customs agents using "green card threats" to obtain sex from vulnerable immigrants.

It will be interesting to see how those agents who have been caught get charged and sentenced; I will keep you posted.

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Posted In: Celebrity and Odd Ball , FBI , Federal Cases , Federal Crimes , Sex Crimes

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As a California criminal defense lawyer who has defended DUI cases since the time of Moses, I enjoyed reading Wikipedia's entry for "driving under the influence."

Some items found there and randomly selected include:

* Norway introduced the world's first "per se" law in 1936. All 50 states in this country subsequently followed Norway's lead and all now have two categories of DUI offenses: the per se violation based on the amount of alcohol in your system (requiring no other proof of intoxication) and the other drunk driving violation (requiring independent proof, such as the testimony of a police office).

*Turkey has a limit of 0.05 for PASSENGER-LESS COMPACT CARS only; otherwise, it is 0.00% (as in zero).

*In this country California leads the way (of course) in bringing second degree murder charges if there is evidence of reckless indifference to the lives of others.

*Germany takes your license away automatically for one year if found driving with a blood count of 0.08% or higher and takes it away indefinitely if found driving with a blood count of 0.16% or higher--that it, until you pass a rigorous medical-psychological driver assessment test.

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Posted In: DUI Defense , DUI/Drunk Driving

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This is not a California case, in fact it is not even an American case, but I wanted to discuss it, after seeing it reported on the Internet by News Star, in the U.K., because it highlights something I believe is too often overlooked by both prosecution and defense counsel in sex crimes cases: the pure addictive nature of this form of admittedly criminal behavior. Read the original article: Teacher had child porn
Stephen Burns, a 33 year-old recipient of the Bedfordshire school best teacher award, had no record of abusing children or acting inappropriately with children and was “well liked with a good teaching record, of good character,” with no record of anything, and he told the court he was filled with remorse.

As he described it, “I started searching the Internet for porn and came across websites with images of children . . . and became caught up in it and could not stop, even though . . . I could lose my job and go to prison.”

That is addictive behavior.

Turned in by his partner, Burns tried to justify his acts by claiming he tried to only download images of “children smiling, so they did not appear to be suffering.”

The court would have none of it, stating, “The children would not have been smiling . . . they would have been extremely distressed. You should be ashamed.”

Burns was sentenced for two years, suspended with probation, plus ten years as a required registrant on the Sex Offenders’ Register.

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Posted In: Child Pornography , Internet Sex/Porn , Sex Addiction , Sex Crimes

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One of my clients, a registered sex offender and probationer, formerly an active member of a San Francisco community church who is negotiating his way back into the flock, found something on the Internet entitled, “Church Attendance Safety Plan,” which he wanted to share with me. I do not know its providence but it may be useful to others.

The cut and pasted document begins: “The purpose of this safety plan is to support the probationer in . . . exercising his religious freedom while assuring the safety of the community . . . while minors are present.”

A 13 item check list follows, including:

* Church services without children present do not require supervision.

* Church services with children present require a "supervisor" to be present

* Supervisor accompanies probationer throughout the church except the bathroom where the supervisor must enter first and confirm that no children are present. Must precede probationer to confirm no boys are inside

* Attendance at other church functions must be approved in advance and monitored as appropriate (as above)

Continue reading " Sex Offenders in Church/Safety Plan " »

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Posted In: Bay Area Cases , California Cases , Sentencing , Sex Crimes

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A former Wells Fargo vice president, Kenneth Gibson, was sentenced to 135 months by U.S. District Judge Martin Jenkins in an Oakland courtroom yesterday for exchanging more than 600 images of child porn over a two year period.
Gibson choked back tears and apologized to the court, after the judge said to him, “ . . . there are real children significantly impacted by this.” Gibson’s lawyer, Robert Beles, said, “You’ve basically got a good man who went into a fantasy world. Other than that, he’s never done anything wrong in his life. There is no indication his is a pedophile. [italics mine].”

Gibson’s lawyer said that his client is “still searching for reasons why he entered that subterranean, perverted world of child-porn Internet.”

This case (Kenneth Gibson) is another illustration that we have entered a new age of thought police. No harm to another person need be proven. All the government has to show is that a person’s thoughts and fantasies involve children and sex, and that person was on the Internet. This case is similar to one I had last year in Hayward where a middle-aged man merely LOOKED at pictures of young girls on files he had downloaded, for which he was charged with several felonies. In that case, the FBI electronically traced the gentleman back to his computer and turned the evidence over to the Alameda DA, who sent the sheriff to make the arrest.

Continue reading " Internet Child Porn Puts Martinez Girls’ Soccer Coach in Federal Prison for 11 years " »

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Posted In: Bay Area Cases , California Cases , Child Pornography , Federal Cases , Federal Crimes , Internet Sex/Porn , Internet Stings , Sentencing , Sex Crimes

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The February 2008 issue of the ABA Journal has an interesting article entitled, The End of the Net Porn Wars.

Remember adult pornography being some serious crime? Forget about it. The government isn’t watching any more, and no one is getting prosecuted.

The latest revenue figures for the industry are $2.84 billion in 2006. Technology moves faster than legislation, the money is gushing in, and few prosecutors want to bother with adult porn.

When Alex Acosta, interim U.S. Attorney for the Southern District of Florida, tried to assign pornography cases to members of his staff, complaints to the Associated Press were made along the lines that the young prosecutors were “stunned” that they should be asked to prosecute adult porn.

Clyde Dewitt, an LA lawyer who represents adult industry producers and performers, “[Prosecutors] have gang activity, fraud, organized crime, drug cartels . . . nobody wants resources redirected to dirty movies. Whoever gets that assignment is the laughing stock of the department.”

All this reminds me of my days as a mom and pop ganja growers’ defense lawyer in Humboldt and Mendocino counties.

In both cases people are making large sums of money engaged in activities that many others do not engage in because they believe these activities are crimes.

In both cases, ungrounded fear of criminal consequences both lowers supply of product or services and drives up prices.

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Posted In: Federal Crimes , Internet Sex/Porn , Sex Crimes

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