Every criminal case rests on the evidence. That is why the most recent Orange County Sheriff’s Department scandal is so disturbing. Or as on Orange County Public Defender put it: The implications of this scandal are massive. Orange County law enforcement is no stranger to scandal. In recent years, there have been crime lab scandals, informant scandals, and exculpatory evidence scandals.   And now we learn that the more than a few sheriff deputies were failing to follow protocol regarding evidence booking and much worse. This latest scandal could affect thousands of Orange County criminal cases.

An audit conducted on the Sheriff’s Department revealed that over 70% of the Sheriff Department’s deputies failed to book evidence according to the department’s procedure. In some cases, the evidence was booked days, weeks, or even months late and in some cases, the evidence was never booked at all. Another audit revealed that 47% of Sheriff Deputy reports that supposedly included evidence did not—in other words, the deputies lied on their reports. By some accounts, there are 9,000 missing pieces of evidence.

Incredibly, the Orange County Sheriff’s Department has known about this problem for at least two years but kept it under wraps—even apparently hiding it from the District Attorney, although the Orange County Sheriff maintains that the department was not obliged to inform the district attorney. It was brought to light by an assistant Orange County public defender, which prompted an article about the scandal in the Orange County Register. Understandably District Attorney Todd Spitzer is not happy about this, observing that this is part of a larger pattern of “systemic problem or failure” within the Sheriff’s Department. The auditors who discovered this multitude of irregularities euphemistically blamed it on the Sheriff’s Department’s “cultural idleness.” No matter what you call it, this is a big deal.

Four suspects were recently arrested for their involvement in a scam targeting elderly women in Southern California. The scammers would approach older women claiming they needed help cashing what was presented as a winning lottery ticket. The victims were all Latina women and the four suspects conducted their scam mostly in Spanish.

The scammers asked the victims to call a phone number on the ticket for instructions. The phone number was part of the scam and a co-conspirator would pose as a lottery official telling the victim that the ticket holder had to put up a deposit to claim the winnings. The scammer would tell the victim that he or she didn’t have the required deposit and would suggest that the victim put up the deposit and then split the winnings. Of course, as soon as the gullible victim gave the scammer money or jewelry, the scammer fled.

The tactics used to lure these elderly women were, on occasion, appalling.  In one instance, a 76-year-old victim came upon one of the scammers sitting on the ground crying. When the concerned victim sought to comfort the scammer, she was told by the scammer that she had a lottery ticket with a large payout but because she was undocumented, she was unable to claim the winnings. The victim, after falling prey to the entire scam, provided the crying scammer with thousands of dollars in cash and jewelry.

As several dangerous fires rage in California, fire authorities are investigating: Is the fire a result of natural causes (such as a lightning strike), or an external accident or negligence (for instance, a downed power line), or is the fire a result of an intentional act? If a fire is started by an intentional act, it is the crime of arson(Penal Code section 451). If the fire is started by an act of negligence or recklessness, it is a form of criminal arson (Penal Code section 452) that is not punished as severely as intentional arson, although it can become a much more serious crime if someone is injured or dies as a result of the fire. Whether the fire is intentionally set or is a result of negligence, the act of arson always carries with it the hazard that the fire will injure or kill someone.

You probably remember the Holy Fire in Cleveland National Forest last year. In that historic fire, over 23 thousand acres spanning Riverside and Orange Counties burned and 18 structures were destroyed. The Holy Fire is alleged to have been started by a man who is charged with intentionally starting fires in areas around cabins in Holy Jim Canyon, where he also lived. Reportedly, he had ongoing feuds with folks in neighboring cabins.  He may have only intended to disturb (or destroy) his neighbor’s cabins, not to burn 23 thousand acres of forest land, but because his act of starting the fires was (allegedly) intentional, he is charged with intentionally setting the Holy Fire. He in being held in Orange County jail on $1-million bail awaiting jury trial. If someone had died as a consequence of the fire, he would also face murderor manslaughtercharges.

And that is just what the California Attorney General has advised if Pacific Gas & Electric is found responsible for the Paradise Fire in 2018. Eighty-six lives were lost in the Paradise Fire. PG&E didn’t intentionally start those fires, but the allegations are that the fires were started by PG&E’s “reckless operation” of power equipment. You might wonder how a company could be charged with murder. It does seem unlikely, but it has happened before. Those old enough to remember, may recall the Ford Pinto explosion that killed three people in Indiana. It was claimed that Ford was negligent in its design of the vehicle’s gas tank, causing the explosion. Ford Motor Co. was indicted by the Indiana Grand Jury on three counts of reckless homicide. Ultimately, Ford was acquitted after a jury trial.

There are two ways a person can be charged with a crime in California. One is by grand jury indictment; the other far more common method is by a criminal complaint filed by the prosecutor, who represents the People of the State of California. (The People of the State of California as plaintiff, the offender as defendant.) When an individual is charged by complaint, there is often a long list of charges, some seemingly redundant. My clients are often confused as to how the prosecution can come up with a long list of different crimes for the same act.

For example, say John Doe is accused of punching and kicking his wife. She falls to the ground and on all fours she crawls toward the front door to escape her husband’s abuse. As she attempts to open the front door, Mr. Doe hits her on the head with a nearby large glass vase, which shatters causing several lacerations on Mrs. Doe’s scalp. He then drags her away from the front door. After dragging her back inside, he then opens the front door and tells her to get out.

In this scenario, Mr. Doe would likely see several charges filed against him in addition to the domestic abuse offense. If Mrs. Doe’s injuries were substantial enough and the vase he hit her on the head was heavy, he could even face an attempted murdercharge. But at the very least, the Orange County district attorney would charge Mr. Doe with 1) corporal injury on a spouse, with a sentence enhancement of great bodily injury, 2) assault, again with a sentencing enhancement of great bodily injury, and 3) false imprisonment effected by violence.

One of the most common questions I hear from my clients is: “Will my arrest or conviction show up on an employment or other background check, such as for a rental application?”

There is no one database that potential employers or landlords can access that provides all the criminal information about an applicant. Rather, what normally happens when a criminal background check is initiated, is that the applicant’s personal data (including past addresses) will be given to a third-party company that checks the applicant’s background for a fee. The background check can vary considerably between these companies—some offer low cost cursory background checks; some of the more expensive ones will complete a due diligence background check that may include all states the applicant has lived in and federal records. The information in these reports vary in their accuracy.

So, where does the background information come from? Depending on how thorough the background check is, the information is gathered through county court records (usually by a paid subscription service that provides this data to the background check company) and perhaps federal criminal court records.  For sensitive employment positions, such as banking or financial services, the criminal background check will be very thorough.

While much press has been given to “Stand Your Ground” laws in Florida and other states, did you know that California is also a stand your ground state? A little over half the states have formally legislated stand your ground laws in one form or another. California, along with a few other states, have stand your ground laws established through case law precedent, rather than legislation. Altogether, 34 states, including California, allow a person to stand his/her ground in self-defense, no matter the setting. The remaining states allow stand your ground defense only if he or she is in his vehicle and/or home, while Vermont and Washington D.C. require a person to flee from a criminal assault of any kind and even if that is within their own home.

Stand your ground laws among states vary, but essential to all is the right of person to use force to defend him-or herself without first trying to flee. Hence the sobriquet “Stand Your Ground.”

Stacy was sitting in her kitchen feeding her toddler when suddenly her ex-husband, who was under court orders to stay awayfrom Stacy, their child, and Stacy’s home, comes banging through the front door. Wild-eyed and apparently on drugs, he started waiving a pistol at Stacy, telling her that he is going to kill her and the child. Stacy had feared this day and she kept a gun in the kitchen drawer. She was able to grab the gun and shot her ex-husband, fatally wounding him. It was later discovered that her ex-husband’s pistol was not loaded.


SHOULD THE U.S. RECONSIDER ITS INCARCERATION POLICIES?

FACT: The United States comprises 4.27 percent of the world’s population yet 25 percent of the world’s total prison population.  The rates of incarceration are higher in the United States than any other county, and folks, that includes Russia and China. Only North Korea, where statistics are hard to come by (but it is estimated by human rights organizations to be 600 to 800 prisoners per 100,000 in total country population) might the incarceration rate reach the rates in the U.S.  For some incarceration rate comparisons consider that the worldwide average is 145 persons locked up per 100,000, Russia has 615 inmates per 100,000, China, 118, and the U.S.? A whopping 737 per 100,000. Why?

Is it that the United States has so many more criminals than other countries? No. Study after study has shown the United States to have a lower crime rate than many countries, ranking number 45 out of 118 on the crime index by country for 2019.

When our second president was a young lawyer and before the United States was an independent nation, John Adams was called upon to defend a very unpopular cause. One of the founding principles on which our country was built was the rule of law over the rule of men. John Adams valued this principle over his own reputation and safety.

In March of 1770, while British soldiers still occupied the colonies, five Bostonians were fatally shot by British soldiers. This went down in history as the “Boston massacre”. The Brits were despised by most colonial residents and the clamor for independence was reaching a fever pitch. A crowd, or as some describe the events, a mob, confronted a British contingent of soldiers. Since there were no recording devices back then we must rely on varying accounts of the confrontation. What is known is that the colonists were threatening the soldiers; some may have physically attacked the soldiers and there were shots fired by civilians from the customs house where the confrontation occurred. The soldiers, apparently without orders from their captain, responded with their guns, wounding several people and killing five.

John Adams successfully defended the captain and the soldiers, who were all charged with murder. Only two of the soldiers were convicted of manslaughter and the rest were all acquitted. Despite the hostility towards the Brits and a propaganda war launched by patriots to affect public opinion about the events, Mr. Adams convinced the jury that the acts were in self-defense.

THE END OF BAIL – ARE RISK-ASSESSMENT TOOLS BIASED?

With the coming end to money bail, California courts will be mandated to rely on risk assessment conducted by Pretrial Assessment Services (PAS). Risk assessment, as mandated by the new law, will categorize those arrested for a crime as high, medium, or low risk in terms of the likelihood that the alleged offender will return to appear in court and the risk the alleged offender poses to the public. Each alleged offender will receive a “risk score” and depending upon that score, the defendant may be released on his or her own recognizance or may be held in jail.  Those charged with a misdemeanor (with certain exceptions) will not be subject to the assessment and will be released on their own recognizance.

But this blog post is not about the new law, but about “risk assessment.” How will PAS make the risk assessment? The new law requires PAS to rely on a “validated risk assessment tool” approved by the court from a list of such tools that are maintained by the Judicial Council. Orange County, as will each county in California, chose what tool to use from those approved by the Council. The tools must be scientifically validated for their accuracy and reliability in assessing the alleged offender’s risk. These tools are algorithm-basedand calculate risk based on the alleged offender’s criminal history and other personal factors plus general criminal justice data. The data input, depending on the tool, may include more than 100 factors, which are weighted according mathematical formulas to assess an alleged offender’s risk. This use of artificial intelligence to determine who gets out of jail and who doesn’t is not without controversy and opposition. Indeed, over 100 civil rights-related organizations opposepretrial risk assessment, including the ACLU and NAACP.

A Massachusetts woman’s conviction for involuntary manslaughterwas upheld by that state’s high court after a lower court found her guilty of the charge after she encouraged her boyfriend by text messages to follow through on his suicide. The Massachusetts involuntary manslaughter law is very similar to the law in California. Both states define involuntary manslaughter as act not intended to cause the death of another person but was committed in such a careless way that a death of another occurred. In Massachusetts, the act is defined as “wanton and reckless conduct,” while in California it is defined as “without due caution.”

Some typical examples of involuntary manslaughterinclude the Dr. Conrad Murry/Michael Jackson case where the doctor prescribed what ultimately was a lethal dose of a drug. Another example might be where a worker dies due to a dangerous condition in the workplace and the owner was aware of that condition.

But the Massachusetts case is not the typical manslaughter case. In that case, the young woman’s boyfriend parked his truck in a parking lot and then diverted carbon monoxide from the truck into the cab where he was sitting. He started to have second thoughts and texted his girlfriend. Instead of talking him out of it, she egged him on, telling him to get back in the truck and finish the job. Her text messages included statements such as “the time is right” and “your family will understand and accept it.” Apparently, her boyfriend had been struggling with depression, which made him a “vulnerable person” according the Massachusetts court. The high court found that the “coercive quality” of the young woman’s text messages overwhelmed the compromised willpower of the depressed boyfriend and had it not been for her encouragement, he would not have stepped back into his truck and killed himself.