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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.

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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.

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In 2017, California instituted a new lawthat prohibits law enforcement from seizing any asset valued over $40,000 in what is known as civil asset forfeiture. Civil asset forfeiture is nothing more than official theft by the state under the color of law. Basically, it allows law enforcement to seize property suspected of being used or in any way connected to suspected criminal activity. This may be a house, a car, jewelry, cash or any asset.

Civil asset forfeiture has, for example, been used to seize the home of a grandmother from which her grandson was allegedly selling drugs without her knowledge. Prior to the change in law in California (and still applicable for assets under $40,000), and in many other states, the owners of the property had to prove innocence—even when there are no charges yet filed and certainly before there is any conviction. In fact, it is estimated that in over 80 percent of all civil asset forfeiture cases in the United States the owners of the property were never even charged with the alleged crime. Yet law enforcement can and does keep the property. The hurdles owners are required to pass to challenge the forfeiture are legally complex and expensive.

As hard as it is to believe, civil asset forfeiture has been an important law enforcement “tool” – or better termed, a legal way to fund law enforcement coffers, for that is what happens to the assets seized – the “proceeds” go directly to the seizing agency. Unamerican? Perverse? Legal theft? Yes, and more. And the United States Supreme Court agrees!

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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.

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The Felony Murder Rule is a rule that attributes liability to an accomplice for a murder even if the accomplice was not the actual killer. In California, an accomplice (also referred to as an aider and abettor) to a crime can be charged, convicted, and sentenced for first- or second- degree murder just by the simple fact that he or she participated in a crime where a murder occurred. In fact, for some serious crimes such as burglary, robbery, or rape, an accomplice to the crime could even be sentenced to death even though he or she did not commit the actual killing.

For example, Jack and Jill scheme to steal a pail of very high value liquid from a woman who lives up on a hill. Jack is armed; he is the one who will take the pail by force or fear (robbery). Jill’s role is to coax the woman out of her house so the robbery can be accomplished. Jack and Jill do not plan to murder anyone; they only want the pail and its contents. Jill lures the woman outside where Jack is waiting. Jack springs from behind some bushes, points the gun at the woman, and demands the pail. As this is happening, Jill spots a neighbor with a shotgun who is witnessing this event. Jill warns Jack and in a sudden panic, he shoots and kills the neighbor. Jack and Jill then run down the hill without the pail of liquid. Much to their surprise, the cops are waiting for them at the bottom of the hill because the neighbor’s wife had called 911. They are both arrested and charged with attempted robbery and murder.

Jill never expected Jack to kill anyone; in fact, he had told her that the gun was not loaded. None of that matters for purposes of the felony murder rule. It is enough that Jill participated in a crime that had the inherent risk of death. It doesn’t matter if the death was intentional, negligent or even accidental.

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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.

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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.)

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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.

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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.

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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.

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