Oswald Defense Lawyer

"His mouth is in his brain"

Wednesday, November 30, 2005

"I've Stopped Drinking, But Only While I'm Asleep"

George Best
May 22, 1946 - November 25, 2005

My second favorite Best quote:
"I spent a lot of money on booze, birds and fast cars. The rest I just squandered."

Tough on Crime

Those were the days.

Tuesday, November 22, 2005

Mea Culpa

The purpose of this blog has always been to present issues related to aspects of the criminal justice system with the hope of stimulating debate or simply further thought on those issues. On several occasions I have attempted to do this by using "real-life" examples from my own experience. The problem is that despite using my best efforts to present the facts generically and without using real names, it is inevitable that some people in the local community can figure out exactly who the parties are. This is especially a problem when reporting juvenile cases, which are subject to much greater confidentiality than adult cases.

Not only is there a risk of breaching a client's confidentiality, but there is also a risk of appearing disrespectful to other identifiable participants in the system, such as prosecutors or even judges.

It has never been my intention to harm clients (or the "system," for that matter) by breaching confidentiality. Nor have I ever intended my criticism of those working within the system to be insulting or disrespectful. But from now on, out of respect for those who have found this blog to be improper, and on the advice of my very wise and understanding employer, I will be taking exceptional care to ensure that future posts do not violate any rules of confidentiality or show any undue disrespect toward those hardworking people in the criminal justice system, here in "anon" county.

Any suggestions or comments as to how best to use this blog to further the goal of stimulating discussion on topics arising out of criminal defense practice, while at the same time preserving confidentiality, would be appreciated. (At present, my plan is to disclose no more detail than would be made public in a published appellate opinion, and to reveal nothing beyond the public record in pending cases. After all, newspapers and appellate courts always do the right thing, don't they?)

And in case I haven't been clear in the past, I have just as much respect for prosecutors as I have for defense attorneys.

Monday, November 21, 2005


A thief cannot be convicted of concealing his booty. People v. Tatum (1962) 209 Cal.App.2d 179. So my "Grand Theft Marijuana" client finally dodged a felony receiving and got a mere misdemeanor petty theft, after the judge decided that backyard homegrown marijuana is not a farm crop, and that there was insufficient "divorcement" between the theft and the concealment to permit a felony conviction for receiving stolen property.

The sad part is that my client got 180 days---the same amount of time that the probation department had recommended prior to the judge's ruling today when they thought he had committed two felonies (grand theft and receiving). This happens a lot in juvenile cases when felonies are reduced to misdemeanors. The reasoning is that in the juvenile system, the primary goal is rehabilitation, and that the length of "rehabilitation" in juvenile hall depends only on the minor's conduct and not how that conduct is classified (i.e., as a misdemeanor or as a felony). Whatever.

Sunday, November 20, 2005

Lost In Translation

Yesterday I took my family to a one day "workshop" for Courtroom Interpretation students at the local college. I had been invited to talk for forty minutes about the interpreter's role from the defense perspective.

We got there just in time to hear a local judge (whom I respect greatly) explain how he tries to avoid having exhibits marked "P2," because that means "fart" in Spanish.* A tough act to follow. Contrary to my concern about struggling to fill 40 minutes, I actually went a few minutes over. More students than I thought had questions about what to do when a defendant confides (via the interpreter) to his attorney that he has left a child down a well someplace.

Courtroom interpreters are good people doing a tough job.
So give them a break and avoid crap like "Is it not true that you do not remember telling the officer about the fight on Sunday?"

* I couldn't help wondering if the judge was familiar with Marcel Duchamp's Dada masterpiece, "LHOOQ."

Friday, November 18, 2005

Update: Marijuana Not a "Farm Crop" After All!

In a recent post I talked about a case where a juvenile defendant was found to have committed "grand theft marijuana" on the basis that the stolen marijuana was worth less than $400 (the statutory minimum for felony grand theft) but fell within an exception for "farm crops" of a value exceeding one hundred dollars.

This morning the judge heard further argument on the "farm crop" issue. I started out by citing Heydon's Case, a vintage precedential gem from Sixteenth Century Olde Englande. Heydon's Case announced the "Rule of Mischief," a maxim of statutory construction which invites the court to determine statutory intent from an examination of the "mischief" sought to be remedied by the legislation. The prosecutor immediately demanded to know if I had Shepardized that case. The judge expressed some doubt as to whether Heydon's Case was good law in "this country." After fending off those objections by bragging that "we" brought the English common law with us to America two hundred years ago, and have been citing it ever since, I then proceeded to the particular mischief of the latter part of the twentieth century which prompted the addition of the "farm crop" exception to the grand theft statute.

According to the Agricultural Council of California---the proponent of the "farm crops" exception in 1982---raids of commercial farmlands by produce pilferers posed such a threat to the state's farming industry that deterrent legislative action was urgently needed. Clearly that kind of "mischief" was entirely different to my client's mischief---nabbing pot plants from the back yard of a medicinal marijuana "patient."

Okay, said the judge (after I threw in a little lenity and ejusdem generis for good measure.) Theft of homegrown marijuana was not intended to be covered by the statute. Great, I thought, so now the kid gets a misdemeanor petty theft instead of a felony?

Nope. Not that simple. The judge dismissed the grand theft charge and found the kid guilty of felony receiving stolen property. Hold on, I cried. Isn't the defendant entitled to a conviction of misdemeanor petty theft as a lesser included offense of grand theft? And doesn't People v. Tatum stand for the proposition that a thief cannot be convicted of receiving his own booty? (Apparently "booty" is a legal term of art. I had to struggle not to pronounce it "boo-TAY.")

Well maybe, said the judge.

Back again next week, so the judge can figure that one out over the weekend. I'm hoping this case will one day get resolved once and for all, so I can finally take a murder case or two off the back-burner.

Tuesday, November 15, 2005

The Eve of World War

Tomorrow marks the first day of the World Scrabble Championships in London. Lack of widespread appreciation of the true significance of this event compels me to limit my commentary to just a simple "giddyup" to legendary American word warrior "G.I." Joel Sherman, a verbal juggernaut rendered physicaly feeble and almost albino from a life spent "practicing" in his mother's basement.
(In case you were wondering, Joel got his witty "G.I." moniker as a result of the gastrointestinal rumblings that accompany his awe-inspiring play.)

Thursday, November 10, 2005

Farm Crop? No Way, Dude!

Last week I represented a young man charged with "grand theft marijuana" based on the theft of two almost mature plants out of a neighbor's back yard. After much argument at trial about whether the value of the plants at the time of the theft exceeded $400, the judge ruled that the prosection's estimate of value was wrongly based on the potential value after harvesting and packaging, and that the value of the stolen property was actually less than $400, but more than $100.

In California, theft of property worth under $400 is a misdemeanor petty theft, and not a felony grand theft. With a few exceptions. One of those exceptions is for theft of "domestic fowls, avocados, citrus or deciduous fruits, other fruits, nuts, artichokes, or other farm crops . . . of a value exceeding one hundred dollars."

Well, guess what. The judge ruled that homegrown back yard marijuana is a "farm crop." Oh yes. She did.

Can an argument be made that the lower monetary threshold for "farm crops" should not apply to back yard pot? Or am I just stoned?

Wednesday, November 09, 2005

I Need To Improve My Diction

Or maybe my grammar. Or something.

ODL: Do you have a tint in your car?
The Witness: I don't have a tent in my car.