Articles Posted in Criminal

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.

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.

In 2017, Stanford Law School’s Justice Advocacy Project studied the long-running problem of mental illness among prison inmates in California. Using data provided by the California Department of Corrections and Rehabilitation (CDCR), the Justice Advocacy Project studied the continuing trend, concluding that the problem is getting worse.  According to the CDCR, at the beginning of this century, less than 15% of California’s prisoners were receiving treatment for a “serious mental disorder,” now that number tops 30%.  The most dramatic increases have occurred in the last five years. A “serious mental disorder” are DSM Axis I diagnoses such as schizophrenia, psychotic disorder or bipolar disorder.

Ironically, it might be the recent criminal justice reforms that is one of the driving forces behind this increase in mentally ill prisonersexpressed as a percentage of all prisoners. The reforms, such as the Public Safety Realignment Actand the Public Safety and Rehabilitation Act (Prop 57), are directed at reducing the prison populations by rewarding good behavior in prison and the reforms assess suitable candidates for early release. But for the mentally ill prisoner, prison conditions often exacerbate his or her illness with the end result that the prisoner’s behavior deteriorates. Even the Supreme Court observed that the conditions in California prisons can worsen prisoner’s mental illnesses and cause the development of overt symptoms. (Brown v. Plata(2011) 563 U.S. 493.)  The mentally ill prisoner may for example, have a psychotic episode, attempt suicide, or lash out, all of which will end in conduct violations and sanctions meaning a loss of custody credits; these credits reduce the time the prisoner must serve.

At the same time, CDCR has a psychiatric staffing shortage, with many positions left unfilled. Governor Jerry Brown’s new state budge has earmarked $117 million to address mental health programs and services for mentally ill prisoners. But Senator Jim Beall (San Jose) doesn’t believe more money is the answer. He is pushing for reforms that would keep the mentally ill out of the prison system. His proposed legislation would require the courts to consider a defendant’s mental illness in sentencing decisions and give the courts discretion to order some defendants to treatment. Senator Beall believes that mental health professions, law enforcement, social workers, and the courts need to work together to address this growing problem.

Imagine being charged, convicted, and serving years in prison for a crime you did not commit. As I have documented, this happens more than anyone cares to think about. With the advent of DNA evidence analysis, hundreds of individuals have been freed from prison based on DNA testing that proved their innocence; some of these exonerated individuals were on death row. How many people have been executed over the years for a crime they did not commit? We don’t know, but it is certainly more than a few. Some may argue that in an imperfect system, it is better to occasionally make the mistake of convicting an innocent person than to let the guilty go free. I challenge anyone with that perspective to honestly consider whether they would still believe that if the wrongly convicted innocent person was themselves or a member of their family. (And, besides if you convict an innocent person, then the actual perpetrator IS allowed to go free.)

DNA exonerations aside, what about persons who are convicted based on shoddy forensic evidence, questionable science, or dubious expert testimony. Many people are unaware that it is not unusual for a person to be convicted solely on the testimony of an expert. Case in point: This month a man who had served 25 years on California’s death row was freed after his conviction for the rape and killing of his girlfriend’s 2-year-old daughter. Pretty horrific crime. However, the man, who is now 68 years old, was convicted on false medical testimony according to the California Supreme Court.

At the trial, a forensic pathologist and numerous medical doctors testified that the child died as a result of sexual assault. What makes this particularly shocking is that years later, many of the doctors who testified, recanted. Turns out they had not actually reviewed the full medical records of the child, which would have informed these experts that their testimony was false. The records admitting the child to the hospital, which incredibly, the testifying experts had not reviewed, did not reveal any sexual assault. The evidence the experts testified to was actually a result of medical interventions at the hospital. This is truly egregious behavior on the part of these testifying experts. What expert would put a person’s life and freedom on the line so carelessly? We expect more from professionals but the reality is, these professionals are often paid a handsome sum to testify. I am not accusing the particular experts for carelessness in favor of personal benefit, but our justice system should deal with the fact that some testifying experts are in it for the money and will skew the testimony to the paying side, be it the prosecution or the defense.

A person who is not a citizen of the United States—even one who is legally residing in this country—can be permanently deported if he or she has committed certain crimes. I discussed thisin greater detail last year. Immigration law is administered by the federal government but most often, a person is deported because he or she was convicted of a criminal act under state statute. While some of the federally enumerated deportable offenses are unambiguous and are consistent across states, such as assaultor kidnapping, other crimes may be punished differently in different states.  Among the crimes for which a person may be deported under federal law are “aggravated felonies.” An “aggravated felony” is a “crime of violence” for which the punishment is one year or more.

But what is a “crime of violence?” Under federal statute a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” (18 U.S.C. §16(b).) So, would it be a crime of violence if a person was arrested for threatening to harm another? Or would a conviction of first-degree burglaryin California be a crime of violence even though no violence was committed during the burglary? (In California, a first-degree burglary is the unlawful entry into an occupied residence with the intent to commit a felony or theft.)

It is true that the majority of individuals deported under U.S. immigration law are deported after being convicted of a crime specifically enumerated in the federal code, such as rape, murder, assault, and so on. But some convictions do not fall under any specifically enumerated crime of violence. It is those types of crimes under which 18 U.S.C. §16(b) is applied in deportation proceedings.

For those of us who live in Southern California, the increasing sight of homeless encampments has been cause for both compassion and alarm. The ever-increasing number of homeless people in our area is often attributed to spiking rental rates and the increasing costs of living here. But there may be an additional explanation that we don’t often hear about or read in the news: out-of-state addicts are being lured into Southern California by unscrupulous drug and alcohol rehab operations.

Driving this trend is the California law that allows a person to sign up for an Affordable Health Care Act (Obamacare) health insurance plan the day that person arrives in California. Not all states have the easy signup that is allowed through the program known as Covered California. Because anyone can be covered under this plan in California, recruiters fan out across the country looking for addicts they can lure to a California rehab facility.

There are approximately 10,000 patient beds in licensed rehab centers in Southern California alone. But these rehab facilities, although they must be licensed by the state, have few state requirements. Basically, anyone can open such a facility. While many rehab centers are legitimate and offer substantive helpto addicts, many others facilities that are nothing but addict churning mills established to bilk insurance companies and skim millions of dollars for their owners.