Articles Posted in Criminal

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 top health story of 2018 according to WebMD was the opioid addiction crisis. This crisis is not only a health crisis but a legal crisis too. Opioid addiction creates a huge black market for purveyors of all variety of opioids, including heroin. The addiction also causes many addicts to commit crimes so that they are able to fund their habit. But most tragic of all is the number of people who are dying from opioid overdoses.  In 2017, the most recent year for which the statistics are available, 47,600 people died in the U.S. from an opioid overdose. Tragically, over half of those deaths were among people 25-44 years of age. Opioid deaths surpass the number of people who died in a fatal car accident in 2017 by almost 10,000. To put this in perspective, every 11 minutes, someone dies of an opioid overdose.

Why is our health and legal system doing such a poor job of addressing this crisis? Perhaps we are putting too much blame on the addict. To the credit of justice reform efforts across the country, including some in Orange County, laws are being written that seek to address the addiction rather than criminalize it. But perhaps we need to turn our thinking 180 degrees. No one plans on getting hooked on opioids. Sometimes it is chronic physical pain that brings a person to the dark path of addiction, often leading to addiction to street drugs such as heroin when the prescriptions are no longer available.  This is often the story we hear.

Yet, there is another pain that leads people to addiction—emotional/psychological pain. In our “pull yourself up by your bootstraps” nation, we often consider those who become addicted because they are in emotional pain to be weak and consider the addiction to be their own fault. How helpful is that? Not very. The truth is many people turn to these drugs in response to very painful life experiences, whether it be the lingering effects of PTSD, childhood trauma, or any number of experiences that affect the person so profoundly that they cannot shake the pain of it. Not everyone will turn to drugs to ease painful experiences, but some people are simply more susceptible, whether that is due to personality factors, lack of resources, or even a lack of imagination.

Popular crime shows would have you believe that the analysis of forensic evidence is the key to finding the perpetrator of a crime. But is forensic evidence reliable?  DNA evidence, blood spatter patterns, bite marks, finger prints and other common types of forensic evidence have been subjected to scrutiny and some just don’t hold up. For example, I previously wroteabout an innocent man who spent 33 years in prison based on bite mark analysis – a forensic evidence technique that has been discredited in the scientific community but continues to be used by prosecutors.

Similarly, other forensic analysis methods have been questioned, or even debunked, by science but continue to be an important part of the prosecution’s arsenal. In the popular imagination, these techniques provide a slam-dunk conviction. But most members of the public, from whom a jury of peers is selected, would be surprised to learn—and perhaps even reject—the proposition that quite often forensic evidence is nothing but junk science. Overcoming this bias takes the persuasive skills of criminal defense attorney who is up on the science and can communicate a reasonable doubt about the forensic evidence.

Here’s one that may surprise the average reader: Even positive DNA evidence may not be evidence at all. The common assumption is that if a suspect’s DNA is found on the victim or at a crime scene, the suspect is positively implicated in the crime. But that is not always true. Often the DNA evidence is in trace amounts but is thought to be conclusive evidence of the suspect’s presence at the scene. DNA analysis has become so sophisticated that forensic technologists can pick up even the smallest amounts of DNA. The problem is that humans shed DNA all the time and everywhere. When you touch anything, you will leave your DNA. Another person touching the same object can then pick up your DNA. This is referred to as the “touch-transfer” property of DNA. So, imagine that you took a public bus. Another passenger on that bus picked up your DNA and shortly thereafter committed a crime. Your DNA may very well show up in forensic analysis, implicating you in the crime.

Not just in California, but across the county, bail reformis a hot topic. Why? Because the bail systemeffectively consigns many defendants to incarceration before they are found guilty…or innocent. Defendants who are unable to come up with the funds to make bail often remain incarcerated until final judgment, but those with means are able to make bail and secure their release from jail prior to the final adjudication of their case. Not only does this result in the incarceration of many “innocent until proven guilty” individuals, it creates an unfair system where those with money can pay to get out of jail while awaiting disposition while those with limited funds and resources cannot.

California, like many states, is struggling to address the money bail system. The Bail Reform Bill, Senate Bill 10, which was introduced by the California Legislature in December of 2016 was recently approved by Governor Brown and is scheduledto go into effect on October 1, 2019. This new law will effectively eliminate the money bail system. California is the first state in the union to enact such a law.

The new bail system will require judges to decide whether to release someone from jail prior to final judgment (i.e., conviction by trial or pleaor a dismissal) based on a pre-trial risk assessment of the defendant. The risk assessment will be conducted by Pretrial Assessment Services using a “validated risk assessment tool.” The assessment tool will give each defendant a “risk score.” The assessment tool is designed to evaluate the risk of a defendant’s evasion of the charges (for example, fleeing the state or failing to appear) and the defendant’s risk to public safety. The language of the bill creates low, medium, and high risk categories. Once this bill is enacted, a defendant will not be required to post bail. (You might wonder what will happen to all the bail bond companies. It looks like they will go the way of the proverbial buggy-whip maker and, at least in California, will have to find other work.)

Back in the mid to late 1980’s law enforcement and prosecutors started using the new technology of DNA testing to solve crimes.  Soon thereafter, criminal defense attorneys recognized that DNA testing can not only help solve crimes but can also be used to exonerate individualswrongly accused or convicted of a crime.  Very soon thereafter, in 1992, the Innocence Projectwas founded and since that time has, using DNA evidence, succeeded in challenging the conviction of over 350 wrongfully convicted individuals, 20 of whom were on death row.

As it became evident that there are hundreds, or more likely thousands, of wrongfully convicted individuals serving time, many prosecutors across the country, including the Orange County District Attorney Office, have taken up their own mantel to identify individuals whom their office has wrongfully convicted. Usually called a “conviction integrity unit”, but also known as “wrongful convictions unit”, or as in Orange County a “convictions review unit”, these departments are charged with reviewing claims of innocence from those who were convicted in each respective county. There are critics of the conviction integrity units, of course, including the founder of the Innocence Project, Barry Scheck.  Concerned that these units are just window dressing, Mr. Scheck and others believe many are not committed to the task they claim to serve.

But some conviction integrity units have indeed identified and exonerated individuals whom their office previously and zealously charged with a crime. One recent high-profile and rather strange example concerns Valentino Dixon, who was convicted in New York state of a murdercommitted in 1991. Now 48 years old, Mr. Dixon spent 27 years in state prison. During his time in prison, he drew golf course scenes which were both vivid and luxurious even though Mr. Dixon had never set foot on a golf course. Mr. Dixon’s golf-scapes eventually led to his exoneration for the murder, which he did not commit.  How he came to draw these beautiful scenes is another story, but the punchline is that the editors at Golf Digest saw his work and profiled it in the magazine.

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.