Articles Posted in Criminal

For almost as long as the federal government has harshly prosecuted drug use, researchers have been studying the psychologically beneficial effects of the very drugs that can land a person in prison. Clinical studies on both animals and humans have demonstrated the beneficial effects of many hallucinogenic drugs in treating PTSD, anxiety, depression, addictions, and other mental health disorders. Drugs, commonly taken recreationally, such as LSD, Ayahuasca (DMT), Ecstasy (MDMA), and magic mushrooms (psilocybin), show varying degrees of promise in a clinical setting. These drugs, along with marijuana, are currently classified as Schedule 1 drugs by the federal government. A Schedule 1 classification means that “there are no currently accepted medical use and a high potential for abuse.”

The Multidisciplinary Association for Psychedelic Studies (MAPS), a research and educational organization focused on discovering beneficial uses of psychedelics and marijuana, with a goal of translating those benefits into safe and legal prescription medicines, has long lobbied the U.S. Food and Drug Administration (FDA) to move forward to that goal. Recently MAPS succeeded in its efforts to convince the FDA to consider MDMA as a treatment for PTSD. The drug received “Breakthrough Therapy Designation” by the FDA, meaning that the FDA has agreed that MDMA may be a better treatment for PTSD than what is currently available. In granting this designation, the FDA has indicated the FDA’s intent to assist in the development and review of MDMA treatment for PTSD, putting MDMA above the other PTSD therapies up for review by the FDA.

MDMA, the main ingredient in the recreational drug known as Ecstasy or Molly, binds to serotonin transporters, giving the user feelings of euphoria. We’ve all heard of the “love” that Ecstasy users experience; this is a product of the flood of serotonin in the brain. Researchers have found that these feelings of euphoria and empathy open the otherwise troubled mind of a PTSD sufferer to psychotherapy. Using established psychotherapy techniques, a trained psychotherapist employs these techniques on the PTSD sufferer while he or she is under the influence of a controlled dose of MDMA.

INDEFINITE CONFINEMENT MAY ENSUE-NOT GUILTY BY REASON OF INSANITY PLEAS

It is estimated that over 10,000 people who have never been convicted of a crime are incarcerated in the United States. The states, under various statutes, confine individuals to mental health facilities who are found not guilty by reason of insanity or who are found mentally incompetent to stand trial. While these individuals are not considered “incarcerated”, for all intents and purposes, they are. Technically, they are hospitalized—against their will and with no liberty to end their hospitalization.

The New York Times recently profiled a man in his early 40’s who has been confined against his will in a New York State psychiatric facility since he was 20 years old. He was accused of rape—a crime that carries a sentence of 5 to 25 years in prison in the state of New York. But this man was never tried or convicted for the crime. Prior to his trial, doctors diagnosed him as having borderline personality disorder. Without fully understanding the consequences, the diagnosis allowed him to plead “not guilty by reason of insanity.” The court, by accepting this plea, found him legally not responsible for the crime. In New York, this plea allows an indefinite detention in a mental health facility.

Fire season is upon us and Firefighter Crew 13-3 is ready to swing into action. But Crew 13-3 isn’t the firefighting crew you imagine. Crew 13-3 is an inmate firefighting crew, stationed in Malibu, is one of many inmate crews stationed throughout California. You might be surprised to learn that there are approximately 4,000 inmate firefighters in California. Depending on the location, that makes up between 50 to 80 percent of all ground firefighting crews. The job is offered to inmates who volunteer and are physically able. Most inmates who qualify are incarcerated for low-level crimes, often associated with drug- or alcohol-related offenses. Both men and women serve these crews and, as you might suspect, the work is dangerous and the pay is low.

This program, known as the Conservation Camp Program, has been around since 1946. It is estimated to save California tax payers roughly $100 million a year because the inmate crews are paid a maximum of $2.56 a day—far less than a civilian firefighter is paid. But the work comes with some perks. The inmates aren’t incarcerated in prison; rather, they live in “Conservation Camps” that are more like retreats than prison. The food is good, the scenery is often exquisite, family visits are allowed, and some camps have vegetable gardens, yoga and meditation sessions, among other amenities that most prison inmates don’t enjoy. There is a camaraderie among the inmates that is not found in a traditional prison and many of the inmates report great satisfaction from the work.

The state recognizes that prison incarceration often fails to rehabilitate the defendant. And in the state’s self-interest, the state also recognizes that incarcerating criminals whose crimes were not violent, puts a burden on the prison system. Alternative sentencing schemes are available to address both of these problems. This Conservation Camp Program is one of many alternative sentencing options that are available to persons convicted of crimes in California.

We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.

This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!

This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.

While Orange County law enforcement has been dealing with its own evidence scandals, what has been happening in Baltimore, Maryland rips open the suspicions some have expressed for many years about law enforcement tampering with or planting evidence. Thanks to police body cameras, we are now witness to what appears to be outright manufacturing of evidence by the police, at least in Baltimore. There is no reason to believe that the Baltimore Police Department is the only law enforcement agency in the country that plays loose with the evidence.

Two incidents of police planting evidence in Baltimore have been recently exposed. In both instances, it is believed that the officers involved were not aware that their body camera was running at the time. Is this the tip of the iceberg?

The first exposure involved an incident in January where officers were investigating a drug suspect behind some empty row houses. Unbeknownst to the officer, his body camera was recording as he placed a plastic bag of drugs inside a can in the alley. He then manually turned on his body camera and announced to the other officers that he was going to check the alley. Lo and behold, he finds the can. The suspect was arrested and unable to post bail. It wasn’t until June when the defense attorney representing the suspect received and viewed the body cam footage that the acts of the officer were discovered. After six months in jail, the charges were dropped against the suspect after the body cam revelation.

We are all familiar with the term “statute of limitations” but what does it actually mean. In criminal law, it refers to the time in which a person can be prosecuted for a particular crime according to the statute (law). Each state has devises its own statutorily defined time in which a person can be charged with a crime and the federal government has its own statute of limitations for federal crimes.

In California, crimes that can be punished by death or life in prison without the possibility of parole have no statute of limitations, nor do crimes for the embezzlement of public funds. In 2016, a new bill was signed into law that removes the statute of limitations on prosecutions for certain sex crimes, including rape and child molestation. Previous to this law, rape had a ten-year statute of limitations and sex crimes against children had to be prosecuted before the victim turned 40.

All other crimes have a specified number of years under the California statute in which the prosecutor can charge those crimes, but it’s complicated. Generally, misdemeanor crimes must be prosecuted within one year of the date of the crime while felonies must be prosecuted within three or six years depending on the applicable punishment for the crime. Those crimes that are punishable by imprisonment have a three-year statute of limitations, but if the crime is punishable by imprisonment for eight years or more, the statute of limitations bumps up to six years. There are many exceptions. For example, some crimes against a person over the age of 65 have a five-year statute of limitations and some white-collar crimes such as fraud and embezzlement have a four-year statute of limitations.

Perhaps you have heard of the “Twinkie Defense.” The term derives from the 1979 trial of Dan White, a former San Francisco Supervisor who, following a dispute with San Francisco Mayor George Moscone and San Francisco Supervisor Harvey Milk, shot and killed both men at the San Francisco City Hall. Mr. White’s defense was that he suffered from “diminished capacity” due to his depression. His defense attorneys argued that among Mr. White’s symptoms of depression was his consumption of unhealthy sugary foods. The press invented the “Twinkie Defense” even though Twinkies were never mentioned at trial.

Mr. White, who was charged with first degree murder, was convicted of the lesser offense of voluntary manslaughter. He was not convicted of murder due to the successful argument that Mr. White suffered from depression and thus acted with diminished capacity. The defense did not argue that Mr. White’s mental state was impaired because he ate Twinkies, as urban legend tells the story; rather the ultimately successful defense was that Mr. White’s state of mind due to his depression negated premeditation, which was a required element to convict on first degree murder. Diminished capacity is something less than insanity.

But that fake news story about the Twinkie Defense took on a life of its own.

Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

ANGER MANAGEMENT

Many violent crimes have one common variable: anger. As a criminal defense attorney in Orange County, I have witnessed the role anger plays in violent crimes from domestic abuse to assault to murder. While most people are able to control their feelings of anger to some degree or another, those who commit violent crimes often do so because they do not have the ability to control their anger. While there is certainly a multitude of variables that plays into any violent crime, anger is almost always one of them. And according to an analysis conducted by psychiatrists at Oxford and Maastricht Universities, when anger is combined with impulsiveness, there is a substantially increased risk of a violent outcome. But we don’t need studies to tell us what we already know: many who commit violent crimes have a problem with uncontrolled anger.

That is where anger management comes in. One of the most common exhibitions of uncontrolled anger that ends in arrest is domestic violence and child abuse. A person convicted of either one of these offenses in Orange County will surely be required to attend anger management as a part of the sentence. The defendant so ordered would be wise to take these classes very seriously. Why? A felony domestic violence conviction is the single greatest predictor of a future violent crime. Domestic abusers, if they cannot get their anger under control, will often abuse again…. or worse.

Last week I wrote about computer-assisted bail decisions. There is something even bigger afoot: a bill before the California Legislature—California Money Bail Reform Act of 2017—would end bail altogether for a wide array of charged offenses. Even when a judge grants bail, the offender often can’t pay it. This results in a huge number of individuals who are incarcerated even though they have not been convicted of any crime. In effect, they are incarcerated because they are poor—or at least, too poor to pay the bail bill. The California Money Bail Reform Act of 2017 would end excessive bail amounts for most misdemeanors and some felonies.

Consider that the median bail amount ordered in California is $50,000. Even with the services of a bail bondsman, the defendant, or his or her family and friends, must come up with $5,000 to make bail. This is no small amount, especially if you are poor. And it means that a defendant unable to make bail will probably lose his or her job, with the cascading consequences of a job loss. Seems as though the bail system is pretty unfair to poor people and that is one of the primary reasons for the introduction of this bill. And if you think this affects only a small number of people, you would be wrong. According to the Public Policy Institute of California, over 60 percent of inmates incarcerated in county jails across the state are there awaiting trial or sentencing, that translates into 46,000 incarcerated individuals on any given day. Most are there because they couldn’t afford bail. Not only does this affect the individual who couldn’t post bail, but his or her family too.

In reality what this creates is a two-tiered system. One for the reasonably well-off and one for the not so well-off. If a person accused of a crime—even a very serious crime—has enough money to make bail, he or she will usually be granted freedom on bail. If a person is too poor to make bail—even for a minor crime such as a misdemeanor—he or she will lose the freedom to return home to family and work. In both cases, the alleged offender is innocent until proven guilty but one is free the other is a prisoner. What justice is there when it takes money to buy your freedom?