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Articles Posted in Constitutional Rights

In earlier blog posts, I discussed the CalGang Database, a database collected and used by law enforcement throughout California. I discussed how this database is kept in secret and many who are included in the database are unaware of their inclusion and worse yet, many who are listed in the database are listed in error.

In a victory for the civil liberties and social justice organizations that pushed for it, a new law was just signed by the governor, to go into effect on January 1, 2018, that is designed to end the secrecy of this database and give those on the database an opportunity to contest inclusion of their name on the database. This is an important piece of legislation because inclusion on this database can have serious consequences and affects the due process rights of those who have been placed on a gang database.

As I previously discussed in earlier blog posts, a person might be put in a gang database for simply being in detained by the police in a certain neighborhood or even put on the database in error. For those later arrested for a crime, being in the database will, in many cases, result in the prosecution alleging gang enhancements, which necessarily carry greater punishments than the underlying crime itself. For undocumented immigrants, being included on a gang database can be cause for their deportation without hearing, even if they are mis-classified on the database.

In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

Zulmai Nazarzai was never convicted of a crime; he was never even charged with a crime. Yet he has been sitting in solitary confinement in the Orange County jail for six years now. That is a long time to spend in solitary confinement.

In 2010, the California attorney general filed a civil lawsuit against Mr. Nazarzai accusing him of running a boiler-room telemarketing scam that bilked elderly people to the tune of $2 million. This was a civil lawsuit; the attorney general did not charge Mr. Nazarzai with any criminal acts. The attorney general won the civil suit and Mr. Nazarzai was ordered to pay a hefty sum of $4 million in penalties and restitution. It was known to the attorney general that Mr. Nazarzai had withdrawn $360,540 from his business bank account. The judge who made the restitution order, ordered Mr. Nazarzai to turn over those funds.

Mr. Nazarzai told the judge he did not have the money. He actually told the judge some absurd story about how the money was lost. The judge called his story incredulous and held Mr. Nazarzai in contempt of court for willful disobedience of the court’s order. (Code of Civil Procedure §1209 (a)(5))

THE FIRST RULE TO FOLLOW AFTER AN ARREST: REMAIN SILENT EXCEPT TO REQUEST AN ATTORNEY

There is a scene in the Showtime series “Billions” where one of the characters is arrested by the F.B.I. for financial fraud. As he is read his Miranda rights and led away in handcuffs, he repeats only one word: “Lawyer, Lawyer, Lawyer,” Now I don’t say this just because I am a criminal defense attorney, but this scene got it right. When you are arrested, the cops must immediately “read you your rights,” which is to say, you must be informed that you have the right to remain silent, that anything you say may be used against you in a court of law, and that you have the right to an attorney. Let me emphasize something: anything you say will in all probability be used against you in a court of law even if the police later suggest during an interrogation that it won’t. All too often after an arrest the cops will use well-honed tactics to get an arrestee to talk. Your best advice is to follow the character’s action in Billions, request an attorney and say nothing else.

Under the law, once an arrestee invokes the right to remain silent and requests an attorney, the police are supposed to cease their questioning. Any response or statement made by the arrestee to further police questioning is evidence that is violation of the law and can be suppressed (i.e., not admitted in evidence). But in reality, what often happens is the police will manage to strike up a conversation with the arrestee and the arrestee will take the bait and engage in conversation with the police. Even if an arrestee says something like “I ain’t talkin’” and indeed remains silent, but then later responds—even in a limited way— to police questioning, it may be considered a waiver of the right to remain silent. In short, an arrestee must affirmatively and clearly state that he or she wishes to remain silent and moreover, do just that: Remain silent (with the exception of requesting an attorney).

THE TERRY STOP – “STOP AND FRISK” DETENTION

You’ve seen it in the movies and on TV shows: The police approach a person on the street or tell them to get out of a vehicle after a traffic stop and command the person to submit to a frisk. In my previous post, I discussed the lawfulness of police detentions so you might wonder what factors must be present for an officer to lawfully conduct what is commonly called a “Stop and Frisk.”

In 1968, the U.S. Supreme Court held that it is not an unlawful search and seizure when an officer stops an individual in the public arena and frisks that individual if the officer has reasonable suspicion that the individual is committing a crime, has committed a crime, or is about to commit a crime and furthermore, has a reasonable belief that the individual might be armed and therefore dangerous. Officers and legal authorities often refer to this as a “Terry Stop,” referencing the Supreme Court decision, Terry v. Ohio, 392 U.S. 1, in which this decision was pronounced. The decision is premised on officer safety, that is, if the officer has reasonable suspicion of the criminal activity, the officer can lightly frisk the detained individual for a weapon. Because the officer has reasonable suspicion of criminal activity, the individual is considered “detained” (but not arrested) and is not free to walk away without the officers consent.

YOUR RIGHTS WHEN THE POLICE STOP AND QUESTION YOU

If a police officer stops you in a public place and begins asking you questions, what rights do you have?

(Note that this post does not apply to a DUI stop. For information on your rights if you are stopped for a suspected DUI, see my DUI blog. )

INTERROGATE UNTIL THEY CONFESS

In 1989, a female jogger was brutally assaulted and raped when she was jogging through Central Park. Five males, ages 14 to 16 at the time, were arrested and confessed to the crime. They were tried and convicted in two separate trials. They became known as the “Central Park Five.”

In response to the arrest of the Central Park Five in 1989, Donald Trump placed an ad in the NYT, The Daily News, and New York Newsday calling for New York to “Bring Back the Death Penalty. Bring Back Our police!” The emotionally charged ad described the streets of New York as ruled by “roving bands of wild criminals.” He asked: “How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS.”

The police regularly use confidential informants to gather information about criminal activity. The use of confidential informants is legal and an important tool in law enforcement’s tool box. But the practice of recruiting jail house informants is often illegal. So what’s the difference?

Most people in jail are represented by attorneys. When law enforcement attempts to get a pre-trial confession or find out information about a crime using a jailhouse snitch, the constitutional rights of the inmate may be violated if law enforcement attempts to discover the incriminating evidence without the presence of the inmate’s attorney. While there is no violation if an inmate volunteers incriminating evidence to another inmate and the receiving inmate takes that information to law enforcement, purposefully recruiting an inmate to elicit the incriminating evidence is illegal as it implies a violation of the inmate’s Sixth Amendment right to counsel.

Violation of this right recently got the Orange County Sheriff’s Department and the Orange County District Attorney’s office in a lot of hot water. It has come to light that the Orange County Sheriff’s Department has been running a jailhouse snitch program since 1990 and passing the information to the Orange County District Attorney’s Office. The program, known as TRED, was kept secret until one Orange County Defense attorney dug in his heels and ultimately forced exposure of the program.

“THE STINGRAY” STING

Daniel Rigmaiden might have seemed a bit crazy to his attorneys. He was arrested in 2008 after he was caught in his elaborate and meticulous scheme filing fraudulent tax claims while living “off-grid” in the woods. He couldn’t understand how the authorities found him; he operated on fake IDs, had virtually no public identity and he ran his scam through anonymized web browsing. Mr. Rigmaiden surmised that the only way the authorities could have found him was through the cellular AirCard that he used to access the internet. He told his attorney, “I think they tracked me down by sending rays into my living room.” That may still sound a little kooky now but back in 2008, before Edward Snowden’s revelations, he sounded like a crazy person. After his fourth attorney withdrew from his case, he ended up representing himself.

Turns out Mr. Rigmaiden wasn’t crazy at all —at least not about the rays in his living room. While in prison, Mr. Rigmaiden spent countless hours poring over his case, reading tens of thousands of documents. He was able to piece together enough information to suspect the authorities caught him by using a secret technology that intercepted cell phones. In fact, what he found eventually led to the discovery of technology, known as the StingRay, that police agencies have been using for years, unbeknownst to anyone outside of the agencies using this technology.

OFFICER MISCONDUCT AND THE PITCHESS MOTION

You are driving late at night and your eye catches flashing red lights in your rearview mirror. Your mind races—you were driving at the speed limit, didn’t run any stop signs or the like—why was the officer stopping you? You pull over and the officer swaggers over to your stopped vehicle. You sense something is wrong. The officer asks you for your driver’s license, registration, and insurance card; you produce all three. You are extra compliant because your sixth sense alerts you to be on guard; something is not right with this guy. He asks you to step out of the car. At this point you have no idea what you have done wrong so you politely ask the officer why he stopped you. Rather than respond to your question, his voice becomes agitated and demanding: “I said ‘Get out of the car!'” You promptly comply, feeling both angry and afraid at the same time.

The officer commands you to put your hands on your car and assume the search pose. Your mind is now racing—there is nothing, absolutely nothing, that would explain why the officer would search you. He searches your pockets and pulls out your wallet. He commands that you sit on the curb and begins riffling through your wallet. He pulls out some cash and tells you he is writing you up for several serious vehicle code violations. You know that is a lie. At this point, your brain kicks into self-defense mode. You ask the officer to return your wallet and money; the officer just laughs. So you stand up and try to grab your wallet. He gives you a big push, slamming you into your car. A struggle then ensues, which the officer initiated. Next thing you know, you are in handcuffs and being booked for resisting arrest and assault on an officer!

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