When a person accused of a crime hires a defense attorney, every communication between the defendant and his or her attorney is privileged communication, meaning anything the accused tells the attorney cannot be divulged by the attorney nor can the attorney be forced to give up information the client has revealed. With certain exceptions, this also applies to communications between a potential client and an attorney, such as a consultation with an attorney before deciding whether to hire the attorney.

The purpose for this privilege is self-evident: If the client is not able to freely speak to his or her attorney, the attorney may be hindered in providing an effective legal defense.  Although not a constitutional doctrine, the privilege implicates the constitutional protections of the Fifth Amendment (right against self-incrimination) and Sixth Amendment (right to legal counsel).  As such, the privilege is one of the oldest recognized confidential communication privileges.

Imagine if this privilege did not exist and the prosecution or law enforcement could be free to learn the details of communications between an attorney and client, whether surreptitiously or by force. Clients would rightfully be concerned about telling their attorney everything and the attorney could have a serious disadvantage defending such a client. That is why, with few exceptions, law enforcement cannot listen in on conversations a client has with his or her attorney and cannot subpoena— or otherwise legally force— information a client has given his or her attorney.

For some mentally ill defendants, alternative sentencingoptions aren’t available, they might not be eligible for court ordered treatment under Laura’s Lawor the treatment failed, or perhaps they have been in a repetitive cycle of Penal Code section 1368 mental incompetencytreatment.  Whatever the failures of the justice system to adequately address the mentally ill defendant, the real effects on the defendant, and often his or her family, can be overwhelming.

In California, persons with severe psychiatric disorders may be placed under a mental health conservatorship. Commonly called a LPS Conservatorship (Lanterman Petris Short Act, codified at Welfare & Institutions Code, sections 5000 et seq.), this type of conservatorship is designed to force certain mentally ill persons into treatment.  While this treatment is usually in a facility, it may be outpatient treatment and/or medications. The treatment is determined and directed by the conservator after court approval. The statutory purpose of an LPS Conservatorship is “toprovide individualized treatment, supervision, and placement [of a severely mentally ill adult.” (Welfare & Institutions Code §5150.) The process of obtaining an LPS Conservatorship is not easy but for the family of a person who is severely mentally ill and in and out of the criminal justice system due to the mental illness, this conservatorship may provide relief

While the LPS Conservatorship may be the best alternative for the family of mentally ill individuals, the family or, for that matter, any private person cannot start a LPS Conservatorship. However, after the conservatorship is ordered by the court, a family member (or other appointed individual) can be the conservator.  An LPS Conservatorship can only be requested to the county Public Guardian Office by a mental health facility professional, in most cases after the mentally ill individual has been ordered to evaluation pursuant to Welfare & Institutions Code sections 5150 and 5250.

Continuing my discussion on mental illness and the criminal justice system, I now turn to a little-known California law that was enacted in 2002, known as Laura’s Law. This legislation, codified in the California Welfare and Institutions Code, sections 5345 et seq., permits the court to order certain persons to obtain assisted outpatient mental health treatment.  Directed at seriously mentally ill adults who have previously been treated in a mental health unit of a correctional facility or have a history of one or more acts of violence towards self or others, this law permits the county mental health department to file a petition to the court requesting the subject individual be ordered to treatment. A request to the mental health department to file the petition may be made by the subject individual’s parent, sibling, or spouse, or by a person who resides with the subject individual.  The request can also be made by treatment centers, hospitals, or other care agencies who are providing care to the subject individual or by a peace, parole, or probation officer.   Extensive due process requirements are written into the law; the court must carefully consider defined criteria before ordering an individual to treatment.

For my clients who are struggling with a mentally ill adult child or sibling who is caught in a seemingly endless revolving doorin the criminal justice system, this statute could provide relief.  The provisions of Laura’s Law leave implementation of the statute to each individual county and has been adopted by Orange, Los Angeles, and San Diego counties. In fact, Orange County was the first large county in California to adopt the law.

Laura’s Law is not the same as what is known as a 5150 hold, where a person can be involuntarily committed to psychiatric facility for up to 72 hours for an assessment and possibly 14 additional days for treatment. (Welfare and Institutions Code sections 5150 and 5250.) Laura’s Law does not commit a person to a facility; rather, it is an order for outpatient treatment. Unlike 5150/5250 holds, which mandates the release of the mentally ill individual from treatment whether he or she has shown any improvement after the statutory period, Laura’s Law mandates sustained and intensive treatment until a mental health professional deems the individual well enough to maintain treatment on their own.

As a criminal defense attorney in Orange County, I am sometimes left with the heart-wrenching task of helping the parents of an adult child with a mental illness wind their way through our state justice system; a system that often leaves no room for opportunities to address the underlying basis for the crime—the mental illness—but rather seeks only to punish. A person who suffers from schizophrenia, severe bi-polar disorder, or other serious mental illness is probably not going to be rehabilitated by incarceration. Yet all too often, mentally ill individuals commit crimes for which they are sent to jail or prison only to be released and start the cycle again.

Parents of these individuals are understandably frustrated and often at their wit’s end. Why, they ask me, does the system keep punishing my child for these crimes he or she commits (crimes driven only by his or her mental illness), rather than providing mental health treatment?  After their child has been through the revolving door enough times, the parents want to know, why can’t they just “lock him up” in a residential facility? Unless the crimes committed are serious felonies, their mentally ill child will not be “locked up” for long. Unfortunately, incarceration in jail or prison can exacerbate the mental illness.

While recent California legislation, which offers pre-trial diversion to some mentally ill defendants, attempts to address this issue, the problem is wider and deeper than the new pre-trial diversion legislation alone can solve, but it’s a start. Until the recently enacted pre-trial diversion legislation, mentally ill defendants who were not in certain classes (veterans, some drug cases), entered and exited the justice system without the system ever genuinely addressing the underlying reason for their criminal behavior.

Most criminal convictions require a showing of intent or an understanding that an act or omission will result in the commission of a crime. This is expressed by the Latin term “mens rea,” which as “guilty mind.”  In common law and up to this day, this standard has been applied, even when it is clear that the defendant suffers from a mental disorder. (There is an insanity defense, but that is a very difficult defense to prove and can result in indefinite detention.)

As our scientific understanding of the brain and the disorders that affect it advances and, indeed, as we reevaluate the concept of free will, it has become increasingly clear to many that not all criminal actors have a guilty mind. Recognizing that mental disorders often have a significant relationship to criminal offenses, the California Legislature passed a law that is effective immediately which attempts to make headway in how offenders with certain mental disorders including (but not limited to) bipolar disorder, schizophrenia, and PTSD are dealt with in the criminal justice system. The new law, codified as Penal Code section 1001.66 seeks a more effective way to address these defendants both in terms of rehabilitating the offender and as a way to reduce the financial costs borne by taxpayers to incarcerate these individuals, often through the criminal justice “revolving door.”

Not every offender with a mental disorder will be eligible; the statute specifically excludes those diagnosed with antisocial personality disorder, borderline personality disorder, or pedophilia, but, in the discretion of the judge presiding over the case, a defendant with other mental disorders may be granted a pre-trial diversion. This diversion is available to all eligible defendants regardless of whether they are charged with a misdemeanor or felony and those with prior convictions are eligible. However, if the court finds the defendant poses an unreasonable danger to the public, the diversion will not be granted. The diversion is only available to those defendants who have not yet been convicted.

I have previously writtenon these pages about the alleged prosecutorial misconduct by the Orange County District Attorney’s Office—misconduct that made national headlines. That incident prompted the California Legislature to introduce and enact a new lawthat that punishes California prosecutors who tamper with or withhold exculpatory evidence.

Prosecutorial misconduct is a problem across our nation’s criminal courts. I don’t mean to imply that all district attorneys’ offices are in the business of intentionally hiding or manipulating exculpatory or exonerating evidence, but it’s enough of a problem to be concerned. Sometimes the life of an innocent person is on the line because of—to put it charitably—overzealous prosecution.

Take the case of John Thompson. In 1984, he was convicted ofrobberyand murderin Louisiana. He was sentenced to death. Fortunately for Mr. Thompson, Louisiana is not a state quick to execute death row prisoners. After 18 years in prison—14 on death row—Mr. Thompson was exonerated and released. Turns out there was evidence that Mr. Thompson was innocent of the crime but the district attorney prosecuting the case concealed that evidence.


Have you sent your spit to one of the genetic-testing companies? It can be interesting to find out our DNA ancestry and perhaps proactive to learn if you might be genetically predisposed to certain health risks. And the police are interested in your DNA profile too.

In the 1970’s and 80’s, a person dubbed the “Golden State Killer” murdered12 individuals and raped45 women throughout California, including in Orange County. Police knew it was one person who committed these crimes because they had collected the DNA of the suspect in each of these cases. But they couldn’t find a match for the DNA. While the FBI and state law enforcement agencies have routinely collected DNA from arrestees and/or individuals convicted of crimes, the Golden State Killer’s DNA was not in any DNA data bank.

Earlier this year, police found their man. Now 72 years old and a former police officer (who committed some of the crimes while still working as an officer), the suspected Golden State Killer was arrested this spring.

Fentanylis the deadliest opioid of all the opioids being abused in this country. It is said to be 50 times more powerful than pure heroin, making it very easy to overdose on the drug-hence the highest rate of fatal overdoses in this country can be attributed to Fentanyl. In 2017, an estimated 19,000 people died from Fentanyl overdoses.

Contributing to this epidemic is Fentanyl’s ease of manufacture and transport. It is a synthetic drug, requiring only chemicals, cheap equipment, and a little bit of knowledge to make. Most of the illicit Fentanyl on American streets are made in Chinese laboratories. Sometimes referred to as a “Drug Bazaar,” chemical laboratories operate all over China with little oversight or regulation. Many of the labs are producing fentanyl and fentanyl analogues by the tons. China denies this but there is plenty of evidence supporting the charge.

Moreover, the sale of fentanyl is an extremely lucrative business. By way of example: $1,000 worth of bulk heroin divided up into retail portions would net the dealer a profit of $4,000. The same purchase of bulk fentanyl from China would net a profit of $7.8 million! These figures, as incredible as they may seem, come from the Drug Enforcement Administration (per Bloomberg News).

OxyContin, first introduced by Purdue Pharma in 1996, was aggressively marketed to physicians, nurses and pharmacists as a superior, longer-lasting, and safer treatment for cancer-related chronic pain as well as other pain, and as a treatment for “non- malignant pain” (long-lasting pain with no identified precursor).  The marketing campaign was intense even though randomized double-blind studies found that OxyContin was no more effective than opioids already in use for the treatment of pain.  Purdue’s intense promotion of the drug proved to be very lucrative for the company. From the time of its introduction to 2000, a mere four years, sales of OxyContin grew from $48 million to over $1 billion.

Purdue Pharma claimed that the risk of addictionto the drug was minimal, maintaining that less than one percent of those that used the drug got addicted. The company even cited studies to confirm this “fact.” We know now that OxyContin is highly addictive; Purdue knew it then. OxyContin, zealously promoted and widely available, was a “gateway” drug to theopioid crisesthat continues to grip the country. Yet, Purdue Pharma claimed for years that it was unaware of OxyContin’s addictive properties. That was an outright lie.

A United States Justice Department investigation exposed conclusive evidence that Purdue was well aware of OxyContin’s addiction risks as early as 1997. Yet, when Purdue’s chief medical officer was called to testify before the House Appropriations subcommittee in 2001 concerning the then evident risks of OxyContin addiction abuse, he claimed that Purdue was unaware of the problem for the first four years it was on the market.

Did you see the 2002 movie Minority Report? Back then, it was science fiction; now it’s getting close to reality. In Minority Report, police departments had “PreCrime” units where “precogs” (strange psychic bodies that lived in liquid pools) were able to predict when a person was going to commit a crime. Based on this knowledge, the police would arrest the individual before they had the chance to commit the crime.

Today, police departments are utilizing predictive policing technology to pre-empt criminal activity. They don’t employ precogs, but they do use algorithms. And they aren’t arresting people before they commit a crime – at least not yet, but they do plan policing day-by-day based on software predictions. Utilizing algorithms, the Los Angeles Police Department’s program PredPol (the title itself sounds dystopian) identifies 150 square-meter areas where certain types of crime are more likely to occur on any given day. The PredPol technology got its start when then LAPD Chief, Bill Bratton, went to UCLA researchers seeking a way to use the historical data compiled by the LAPD to pre-emptively deploy the police force wherever crime was likely to occur.  Using the PredPol algorithms the LAPD sends units to patrol these “hotspots” based on the predictions.

This is not a matter of just beefing up the police force in high-crime areas, it’s way beyond that. Data is continuously fed into the model resulting in ever-changing predictions. The algorithms predict the highest risk areas for any particular crime on any particular day and at any particular time, thereby theoretically (and perhaps factually) stopping the crime before it happens, or at least being there when it does.