On November 8, 2016, California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 201, by an overwhelming majority of 64%. This proposition contained two key provisions:
1) It makes certain non-violent felons eligible for immediate parole and
2) It requires a court hearing before a juvenile can be tried in adult court.
COMPUTER-ASSISTED BAIL HEARINGS
When a person is arrested and held in custody, his or her first appearance before a judge will be in what is called an arraignment. Under California law, the defendant must be afforded an arraignment within 48 hours (not to include weekends or holidays). At the arraignment, the judge will determine whether the defendant should be released on bail and, if so, the judge will set the bail amount. Some defendants are released on their own recognizance, usually when the alleged offense is not serious. Most defendants are allowed to post bail at an amount set by the court, which depending on the crime or crimes charged may be in the millions of dollars but is often in the tens of thousands of dollars (for which the defendant typically uses a bail bondsman and pays a percentage of the bail amount). For some defendants, the courts will deny bail. When the court denies bail, the defendant who is legally innocent (innocent until proven guilty) will likely be incarcerated until trial. It happens sometimes that a defendant denied bail spends months, even years, in jail only to be found not guilty of the crime by a jury. On other occasions, it goes the other way: the judge releases a defendant on bail who then skips bail or commits another crime while released.
In California, all alleged offenses, including murder, are eligible for bail (except murder with special circumstances). It is left to the judge’s discretion whether to grant bail, usually after hearing brief arguments from both the defense and the prosecution. But a judge, as experienced as he or she may be in making this call, is a human being with human biases and prone to human error.
Legislature Enacts Post-Conviction Relief to Remove Potential Immigration Consequences After a Penal Code Section 1000 Plea
Last week I wrote about the immigration consequences that may attach to an “expunged” conviction. This week I offer better news. The California Legislature has addressed the immigration consequences that attach to certain convictions and will offer relief to some noncitizens who may be facing deportation due to a previous conviction on a deportable offense.
The first of these Legislative remedies concerns those who have pleaded guilty under a deferred entry of judgment as set forth in Penal Code section 1000 et seq. When a person is arrested on a first-time non-violent drug offense in California, he or she is often given the opportunity under this section to enter a plea of guilty, with that plea being “suspended” by the court and ultimately dismissed by the court if the defendant successfully completes a drug rehabilitation program. However, as with the other California statutes that provide for dismissal of a prior conviction, the federal government considers a deferred entry of judgment and dismissal under Penal Code 1000 rehabilitative relief only and it is, as far as the federal government is concerned, still a conviction with the same liabilities for a noncitizen for immigration purposes.
Many people who have been convicted on a misdemeanor charge or certain felonies for which they were not sentenced to prison can, after certain conditions are met, apply to the court for what is commonly called an “expungement” of the conviction. This relief is available under several statutory schemes, the most common being Penal Code section 1203.4. Referring to this relief by the term “expungement” is a misnomer because the conviction is not entirely expunged. But since everyone calls it an expungement, I will use that term here also.
When a defendant who has completed probation, or is otherwise discharged from probation, he or she may apply to the court to set aside the verdict of guilty and order the conviction dismissed. I discuss how this process is accomplished here. If the court so orders, the defendant is relieved of the penalties and disabilities resulting from the conviction and no longer carries the many burdens of having a criminal conviction on his or her record. For example, the former defendant no longer has to report the conviction on a job application (with some exceptions) and will reflect favorably when applying for a professional license.
However, many people are surprised to learn that the record of the offense still appears on the person’s Department of Justice criminal history record, although it now shows as dismissed. Furthermore, the expunged conviction still imposes some burdens upon the former defendant. For example, the offense must be reported if the former defendant is applying for certain jobs or wants to enter a career, which require licensing or are public service jobs, and the expungement will not relieve the former defendant of any firearm possession restrictions that were part of the conviction.
Way back in 1971, President Nixon declared a “War on Drugs.” The federal drug control agencies were dramatically beefed-up, the DEA was created (1973). Quaint as it seems now, much of the effort was directed at marijuana. Back in those innocent days, marijuana was considered a major drug problem. By the 1980s the use of cocaine and its cousin, crack, became a major problem in this country. Cocaine usage increased by 700% just in the years 1978-1984. Many believed that marijuana was a gateway drug to these harder substances.
By the early 80’s, President Reagan, initiated get tough laws on drugs. “Zero tolerance” initiatives were the trend. It was during the 1980’s that this country’s prison began to fill with drug users. From 1980 to 1997, the number of people incarcerated for nonviolent drug offense increased eight-fold! The DARE program, an off-shoot of the War of Drugs was initiated in the 1980’s by Los Angeles Police Chief Daryl Gates, who was actually quoted as saying that casual drug users should be shot. (I’m sure he didn’t mean that literally but it sure did fit in with the “war” theme.)
By the 1990’s Presidents Bush and Clinton continued to escalate the so-called War on Drugs. The prison population continued to explode in great part because of the increasingly hysterical War on Drugs. Three-strikes laws became a thing and many who found themselves in prison for life under three-strikes laws were there because at least one of the strikes was a drug offense. I am not talking about cartel-type drug dealers, these were often drug users and addicts and no more.
KNOCK AND TALK: A TACTIC POLICE USE TO BYPASS THE WARRANT REQUIREMENT
It’s the middle of the night. Someone is banging on your door yelling for you to open the door. Whoever it is does not identify himself and you do not recognize the voice. The adrenaline rushing, you grab the gun in your safe and cautiously open your front door with your gun in hand but pointed safely towards the floor. Just before you are shot dead, you see it was the police banging at your door. Sounds outrageous but that is exactly what happened to a Florida man, Andrew Scott, who committed no crime. In fact, the police were investigating a crime that had nothing to do with Mr. Scott. Accounts of the incident vary but Mr. Scott’s girlfriend, who witnessed the incident said Mr. Scott never even raised his gun and was retreating from the front door right before he was shot.
Now this incident, unfortunate though it was, was an isolated incident. The police tactic, known as “Knock and Talk” is an investigative tool used when the police have no search warrant but believe there is reason to search a residence so they knock and “request” to search the residence. While police often use this tactic, they usually don’t kill someone in the process but you can see how it could quickly escalate into a dangerous situation. The police don’t normally politely knock on your door and politely ask if they may search your premises. Polite requests are easy to decline. Rather, the police typically intimidate the resident by banging on the front door and staging a threatening presence, sometimes with many officers, guns drawn and sometimes even in SWAT gear as happened in a Michigan case over the dangerous crime of …. marijuana butter.
Our system of justice is designed to be impartial and fair. But judges and juries are not robots. In any criminal case, the judge and jury will not only view the evidence with neutral eyes and ears but will also rely on “soft” skills such as intuition and biases. A perfect example of this is during the sentencing phase. When a defendant is convicted of a crime, the sentence he or she receives depends—perhaps too much—on the perceived remorse of the defendant.
We like to think that we are good at detecting the heart and minds of others. When an offender is convicted of a crime he or she will often be called upon to make a statement during sentencing. This is the opportunity for the now guilty offender to offer contrition and remorse. It is not uncommon to hear a judge or juror opine after such a statement that he or she didn’t believe the offender really meant it — that the statement was merely used as an opportunity. And, that may be true. But can the judge or juror, even when tasked with this awesome responsibility, reliably infer the offender’s true motives and emotions?
There is a well-known study called “mind in the eyes” —you may be familiar with this study. Scientists showed study participants various photographs of a pair of human eyes. The study participant was then asked to pick the mental state or attitude that best matched what the eyes expressed. The participant was given a list to choose from such arrogance, annoyed, upset, or worried. Supposedly the test determines how well a person can read the emotions of others simply by looking at (or some would say “in”) their eyes. Another way of putting this is that we intuit the emotions and mental state of others from what their eyes are “telling” us.
JUVENILE JUSTICE REFORM
Not that long ago, 17 years ago to be exact, the voters in California were in a get tough on juvenile crime mood. Proposition 21, the Juvenile Crime Initiative, was passed by a wide majority of California voters. The proposition dismantled much of the juvenile justice system, sending many juveniles to adult court and ultimately to adult prison. It didn’t take long before key components of prop 21 were reversed by California voters when Proposition 57 passed this past November. Since passage of Pop 57, all but the most serious of juvenile crime cases are sent to the juvenile court. The juvenile may still end up before the adult court, but the juvenile judge must make that decision. Previously, many juvenile cases went straight to adult court.
California is not the only state to realize that most juveniles do not belong in adult courts and prisons. Treating juvenile crime as adult crime does little to “reform” the juvenile offender and perhaps has the opposite effect. When Connecticut stopped sending its 16-18 year old’s to adult court beginning in 2012, the state saw many positive effects, including a dramatic decrease in crimes committed by young adults aged 18-21; this effect no doubt having to do with the emphasis on intervention, rather than punishment of the under age 18 offender.
LAWYER, LAWYER, YOUR PANTS ARE ON FIRE
In what must have been a bizarre spectacle in a Florida court, a defense attorney, while delivering his closing argument in an arson case, started fiddling with his back pocket and had to run out of the courtroom when smoke started billowing out of the pocket. Yes, the attorney defending an arson case found himself on fire. Incredibly, the attorney was in the middle of arguing in his closing statements that the defendant didn’t commit arson; rather, his car spontaneously caught on fire. And then right before the jurors’ eyes, the attorney’s pocket seemed to spontaneously catch on fire. The attorney returned to court wearing his now singed pants.
Sounds awfully suspicious to me but the attorney maintains that it was not a gimmick. Apparently, the attorney did have an e-cigarette in his back pocket and he blamed a faulty battery in the e-cigarette for the mishap. Despite the attorney’s denial that the pocket fire was planned, police and prosecutors are investigating the incident. Court officers seized the frayed e-cigarette batteries as evidence. There have been reports that e-cigarettes caught on fire and several of these incidents have even been recorded on video. So, maybe this was just an uncanny coincidence.
A POWERFUL TOOL IN THE DEFENSE TOOLBOX: THE MOTION TO SUPPRESS
Here’s an interesting case that caught my eye: Narcotics officers in Colorado Springs observed a driver in his parked vehicle conducting what appeared to be a narcotics transaction. The officers made contact with the driver and after a brief struggle, they discovered a brown satchel containing cash and Ziploc bags near the vehicle. They then searched the vehicle and found controlled substances, firearms, and ammunition. The first question any good defense attorney would ask is, “What reasonable suspicion did the officers have for contacting and detaining the driver in the first place?” Why? Because the Fourth Amendment to the United States Constitution requires either a search warrant or a “reasonable and articulable suspicion” that the driver has violated the law before a vehicle can be searched. The courts have fashioned many exceptions to this requirement but if an arrest is the result of a search without a warrant and without probable cause or any of the enumerated exceptions, the entire arrest can be challenged by a motion to suppress.
The Colorado case is particularly interesting because of the facts: The police got a warrant to place a GPS tracking device on a vehicle, the vehicle was sold, and the new vehicle owner was the guy that ended up getting arrested. The police continued to track the vehicle even though there was evidence that they knew the vehicle had been sold. The officers testified that they surveilled the vehicle to see if the previous owner was still driving the car. It was during that surveillance that the new owner of the car was observed parking the car and was contacted by the officers, which ended up in the search of the vehicle and the driver’s arrest.
