Gamesmanship

Today was the day set for J.G.'s robbery trial. A couple of weeks ago, the Deputy District Attorney on the case, my nemesis Mr. N., had offered a reduced charge of 487(c) ("grand theft person") if J.G. were willing to plead that day without having any information about the alleged victim. Suspecting that the victim might be out of state and unavailable to testify at a trial, I turned down the offer and set a trial date without a time waiver. (See earlier post.)

Had the victim shown up today, J.G. would likely have been convicted (or, as they say in juvenile court, the petition would have been "found true") and he would have faced at least a couple of months in juvenile hall and he would have had a "strike" offense on his record.

But let's not forget, J.G. is alleged to have committed a robbery, and to have actively avoided the court for two years before being hauled into juvenile hall three weeks ago to wait while the dice rolled.

The dice stopped rolling this afternoon when J.G. and I listened to some of my favorite words: "People's motion to continue is denied. Petition dismissed."

So, was justice done? Or was a game played? Or are they the same thing?

Tries to run, but he don't get far. And his Mama cries.*

Joshua R.
1987 - 2005

I first met Joshua R. last November, shortly before I met his older brother, Jason. Each kid was facing charges arising out of high speed chases in stolen cars. When I looked into the room full of in-custodies for Jason on the day of his pretrial hearing, I could tell straight away which one was him; he was a slightly older-looking carbon copy of his handsome young brother. I remember I jokingly asked Jason if methamphetamine-fueled high speed chases in stolen cars was some sort of family tradition. Jason smiled and took a hundred and twenty days, which would have got him out around January of this year.

In December of 2004, Joshua was sent from Juvenile Hall to placement in a group home. In February, he absconded from the group home, only to be arrested two months later after getting in a fight with his girlfriend.

The last time I saw Joshua was on May 5, when he was sentenced to 180 days in Juvenile Hall.

Last month, I noticed Joshua's name on the court calendar for termination of probation. The probation department was requesting termination of probation because Joshua had died in a high speed chase. Joshua's older brother, Jason, was driving. Joshua, apparently, had been out of juvenile hall for just a couple of days. Jason survived with minor injuries, pled guilty to vehicular manslaughter and was sentenced yesterday to six years and eight months in state prison.

The juvenile court system, unlike the adult criminal system, is supposed to be primarily directed toward rehabilitation. As far as I know, Joshua never received the benefit of any kind of treatment aimed at resolving the meth problem which both he and his grandmother acknowledged to be at the heart of his delinquent predisposition. Nor did he receive any kind of meaningful counseling aimed at resolving whatever psychological and family issues might have been related to a pattern of self-destructive behavior. All he received was time in the hall and time in a group home away from people who really cared about him.

My heart goes out to those who loved and cared for Joshua and tried so hard to help him, especially his grandmother and his girlfriend.

I will never forget Joshua's perpetually bright demeanor. He knew exactly where his self-destructive tendencies would continue to take him, yet he always kept smiling.


Godspeed Joshua R.


* From the song, "In the Ghetto," written by Scott Davis and popularised by Elvis Presley.

For the Benefit of the Gang?

AA stopped by the 7-11 at 4 in the morning on the way home from a party. He was hungry and this was his last chance to get some snacks before arriving home to an empty refrigerator. As well as AA's three friends, there were plenty of other kids hanging out in the 7-11 parking lot, as was frequently the case in the wee hours of a sunday morning. Having had trouble with drunken teens before, the clerk came out and told AA and his friends that they could not come in the store. Words were exchanged, and a "tussle" ensued. During the tussle, the clerk took hold of AA's shirt. While AA was trying to get free by removing his shirt (or while AA was holding the clerk down, depending on how you look at the video tape), AA's friends assaulted the clerk with fists, feet, and the handle of the 7-11 dustpan.

One assailant wore red pants. The others wore neutral, non-gang colors. Nobody uttered any gang slogans, or left any graffiti. According to the prosecution gang expert, the parking lot was well-known as a Norteno hang-out, although it was also frequented by Surenos.

Was the assault committed "for the benefit of the [Norteno] gang" in violation of Penal Code section 186.22(b)? Absolutely. And here's how:

All four youths were associated with the Norteno gang in one way or another. (I argued that gang association alone did not prove an intent to promote separate criminal conduct by the Nortenos, and that gang members have a right to commit crimes for the same good old fashioned reasons as anyone else, but to no avail.) Even though the gang expert testified that the youths likely intentionally avoided identifying themselves as Nortenos (for fear of facilitating identification or risking additional penalties if caught), it apparently didn't matter because the clerk would know that they were Nortenos anyway. The prosecution theory (which the judge bought entirely and even added to) was that the youths behaved as they did only because they were gang members, and, despite the deliberate absence of anything identifying the youths as Nortenos, they somehow still intended to instill in the clerk fear of the Nortenos and not fear of four drunk guys whom he had never seen before and would likely never see again.

So there you have it. This week I picked up a VC2800.2 evasion "for the benefit of the gang." I'm assuming the prosecution's theory is that evading is intended to preserve the liberty of a gang member and thus further distinct criminal gang activity. That'll work, I guess. The only small victory I have had recently with gang cases was this morning, when I threatened to demur to a count of 186.22(d) as a distinct felony, charged in addition to a felony second degree burglary (shoplifting beer "for the benefit of the gang"!). Sub D is neither a substantive offense nor a sentence enhancement, but an "alternate sentencing provision" usually applied to misdemeanors to "elevate" them to felonies at sentencing. The nitwit prosecutor promptly amended to replace the improperly pled D allegation with a count of 186.22(a) (participation in a criminal street gang), not realizing that there is no way to prove a substantive "gang membership" count in this case. Unlike 186.22(b) which merely requires that the crime is committed for the benefit of the gang (very easy to prove--see above), 186.22(a) requires, among other things, that the prosecutor prove that the defendant aided and abetted the commission of a separate felony committed by gang members. See In re Jose P. (2003) 106 Cal.App.4th 458.

The AA assault case was originally assigned to the second worst judge (in my humble opinion) in the county for gang trials. Just my luck, after papering her, it went to the worst judge for gang cases. So I knew from the start it was pretty much a loser. However, some fun was had when I called my surprise gang expert, a 31-year-old former high ranking Norteno. Jesus M is a very intelligent and articulate man with a huge amount of expertise in the area of Norteno gang activity. Although I had the pleasure of standing next to Mr. M a couple of weeks ago as we heard my two favorite words, Mr. M remains in custody on another case and regaled the court in his gang-expert orange jumpsuit with tales of Norteno derring-do. Impeachment was interesting. The more felonies Mr. M had been involved in, the more credible his first-hand accounts of Norteno activity. So bring on those priors!

So . . . is defending gang enhancements really pissing into the wind? Is pissing into the wind while wearing a red shirt public urination for the benefit of the gang?

D'oh

Well, I'm still in trial. There are a few interesting things about the trial which I'll be reporting after it finishes up this week. In the meantime here's a funny little incident that occurred a couple of weeks prior to the inception of this blog.

Johnny had just been charged with robbery arising out of some sort of sleazy motel-room shakedown involving a "client" of Johnny's "girlfriend," Tanya. Although Johnny described Tanya to the police as his "girlfriend," it seemed pretty clear from the police reports that she was not your typical "girlfriend."

So after talking briefly with Johnny (who was in custody) I went back into the courtroom to wait for his case to be called. While I waited, a young lady in the audience asked me if I was Johnny's lawyer.
Me: "Who are you?"
Her: "I'm Johnny's girlfriend."
Me: "Aah, so you must be Tanya."
Johnny's girlfriend (note: no quote marks): "Who the fuck is Tanya? My name is Monica!"
Me: "Erm. Okay. I gotta go. Bye."

Prosecutor offers deal in exchange for waiver of receipt of discovery; defense attorney loses it in court.

Yesterday I pretty much lost it in court. On the record. Here's what happened . . .

Two years ago, JG, a sixteen year old juvenile, FTA'd at his trial on a charge of robbery (211). A couple of weeks ago, JG, now eighteen, resurfaced, and yesterday I appeared for him at a pretrial hearing. (JG is in custody at juvenile hall.) At the pretrial hearing, Deputy DA Mr. N. offers a "grand theft person" (California Penal Code 487c) as a lesser included offense of the robbery. (The robbery, by the way, would count as a strike, because JG was sixteen at the time of the offense.) Great offer, right? Well here's the part that pissed me off. I liked the offer, but wanted to confirm that the victim, who had apparently moved out of state, was still willing to testify. Mr. N. announced that if he had to "do the work" of providing me with a current address of the victim, then the offer would go away. I argued on the record that the offer should remain open until I receive the victim's address, on the grounds that making an offer contingent upon a waiver of receipt of discovery would be illegal. Mr. N.'s position was that any conditions on an offer are fine, an offer can be withdrawn at any time, and if I really needed the victim's address so badly, then I could have my own investigator go find it.
Judge S's opinion was that Mr. N. was free to withdraw his offer if I insisted on receiving the victim's address and, after all, I did have the "most recent" address of the victim---an address which everyone knows is no longer good. After a little more of my on the record ranting and raving, Judge S did concede that under In re Littlefield, the DDA did have to get the address himself, although the day of trial would be fine for disclosure.

All I could do at that point was set the case for trial without a time waiver. My suspicion is that Mr. N. knows the victim is neither able nor willing to testify at trial. Knowing this, Mr. N tried to get a conviction the only way he could---by trickery. We shall see.

I'd like to know what people think about this issue. Is it ethical, or even permissible, for a DDA to make an offer contingent upon a waiver of discovery? Is it malpractice for a defense attorney to accept an offer without having received essential discovery? Can an offer with such a condition be enforced without the condition?

That was just the first time I pissed off that judge yesterday. Later that afternoon I got to piss him off even more during a juvenile gang trial. Look for a post titled "Bullshit Gang Expert Testimony Part 146" at the conclusion of that trial in a day or two.

Words & Wirecutters. Free at Last. Free at Last.

One acquittal. One escape. A good week.

Appeals court considers jail time worse prospect than having kids taken away

Having represented several parents in dependency cases, and having (sometimes successfully) made Crawford objections in some of those cases, I was shocked to hear about the recent April C. case, holding that Crawford does not protect parents in dependency hearings from adverse hearsay statements.

My sardonic boss's reaction was priceless: "Well, it's not like they're going to jail---they're only having their kids wrenched from their arms."

Bonkers?

Yesterday I appeared on behalf of JA. JA is bonkers and was declared incompetent a few weeks ago.

At yesterday's hearing the judge reviewed a report in which County mental health denied JA outpatient treatment to restore him to competency on the grounds that his alleged crime---"criminal threats"---is a crime of violence mandating inpatient treatment in a locked facility. (What JA actually did, or is accused of actually doing is irrelevant at this point. Summary denial of outpatient treatment depends on the offense charged, not the conduct alleged in the police reports.)

The judge announced that he agreed with the county. It would have been easy for me to agree, too. JA would be sent off to a secure facilty. I would never again have to sit next to him while he asks over and over "am I going home now?" Instead, I pointed out a linguistic distinction which might well send the bonkers JA home. The statute at issue (California Penal Code section 1601) precludes outpatient treatment for any incompetent person charged with a crime that "poses a threat of serious bodily harm." JA was charged with making a criminal threat (in violation of California Penal Code section 422). To make a criminal threat, however, it is not necessary for the defendant to have the intent to carry through with the threat, thus the victim need never actually be placed under any threat of physical harm. Making a threat vs. posing a threat.

The judge requested written briefs on the issue and a hearing was set in two weeks. I went back to the office and cited to Webster's.

So, my question is this . . .

All the time, criminal defense attorneys are made to feel bad for "putting criminals back on the streets," usually by taking unfair advantage of a "loophole" or a "technicality." And we fire back, "it's not a loophole, it's the Constitution!"

What JA did was probably a dangerous criminal act. If JA goes back home, it will be because the intent to carry out a threat is not a required element of the crime of criminal threats, even though it is highly likely that 90% or more of all those charged with criminal threats actually would carry out the threat. The only way we will know if JA is among that 90% is by letting him out.

If JA goes home and does what he said he was going to do, may we take comfort in the fact that the rights we share with JA were vigorously protected?

Welcome

I am an Englishman in California practising criminal law. I work for a small firm under a contract with the county to represent indigent clients at the second conflict level. The work can be stressful, frustrating, confounding, tedious, entertaining. This blogspot is not meant to be anything fancy---just a place to vent a little, relate interesting or amusing anecdotes, pose a question, answer a question, and so on.

The blog's name "Oswald Defense Lawyer" is taken from an old song by The Fall, an English rock band fronted by the anti-charismatic "Bard of Salford," Mark E. Smith. As far as I can tell, the lyrics of the song address the representation at trial of Lee Harvey Oswald; something that never actually happened, thanks to Jack Ruby. (Also, I believe the song, originating from Blighty and all, is properly titled "Oswald Defence Lawyer." But, hey, this is an American blog, goddammit!)