Oswald Defense Lawyer

Rubber Band of the Week

2009-07-02T11:45:00.000-07:00

Testimony Of The Week

2009-03-27T14:55:00.000-07:00

Oswald Defense Lawyer: So how does a gang member robbery look any different to a non-gang member robbery?

Police Gang Expert: I'm assuming you're talking about through the eyes of the victim or through the eyes of the investigator? Whose eyes are you talking about?

ODL: A fly on the wall.

Prosecutor: I'm going to object to this. If we're going to start off with these argumentative questions, I think you should admonish Mr. ODL. Let's try to get the answers done, get the elements of the crime, put on a defense, don't argue.

Judge: I'm not sure that was argumentative. I'm not sure it's terribly relevant either, but---I'll overrule the objection. (To the witness) Go ahead. You may answer the question.

Police Gang Expert: To a fly on the wall, I would imagine it wouldn't look very different.

ODL: So maybe a little bit different?

Police Gang Expert: To a fly?

ODL: Right.

Police Gang Expert: I'm assuming not, but maybe to someone who had thoughts or---analyze things, probably a little bit.

ODL: Then a smart fly.

Judge: I think you crossed the line here, Mr. ODL.

Are Children Different?

2009-03-10T07:06:00.000-07:00

So my client was found guilty of second degree murder with enhancements for firearm discharge, gang-relatedness, and shooting from a car. Also attempted murder (with the same enhancements), shooting at an occupied dwelling (multiple counts, with the same enhancements), etc., etc.

Now that's been decided, the next question is; does the United States Constitution permit a sentence of life without parole for crimes committed when the defendant was fourteen years old? Sometimes? Never?

Fruits and Thorns

2009-03-01T12:17:00.000-08:00

"[Juveniles] are not permitted to vote, to contract, to purchase alcoholic beverages or to marry without the consent of their parents. It seems inconsistent that one be denied the fruits of the tree of the law, yet subjected to all of its thorns."

Workman v. Commonwealth of Kentucky, (1968) 429 S.W.2d 374, 377.

Support SB 399

Bad Cop, No Donut.

2009-02-28T19:33:00.000-08:00

You can't argue with video.

Law

2008-12-24T23:09:00.000-08:00

I saw our masters
Sat to dine,
Bloated on liberty,
Yours and mine

I asked,
Is there no portion
For the poor?

They answered,
Surely
And belched up
The Law.

From "The World as it is Today" by the Art Bears, Recommended Records (1981).

Testimony Of The Week (Two Countries Divided By A Common Language)

2008-12-14T00:23:00.000-08:00

ODL: Was the fire on the verge?
Police Officer: On the verge of what?

Testimony Of The Week

2008-12-06T19:55:00.000-08:00

Prosecutor: Your Honor, the Defendant violated the Court's order when he used profound language outside his ex-girlfriend's house.

ODL: Hmm.

Tales Of The Riverbank, Part 2

2008-12-01T21:16:00.000-08:00

Today was the day of Mr. H's unlawful lodging trial. Apparently, the prosecutor was under the impression that Mr. H had busted through a fence and ignored numerous "No Trespassing" signs.

Until he saw the pictures I took during a little excursion to the locus in quo a couple of weeks ago.

Case dismissed on the People's motion.

Tales Of The Riverbank, Part 1

2008-11-29T21:39:00.000-08:00

Under California law, a navigable stream (including the bank below the high water mark) may be used by the public for "boating, swimming, fishing, hunting and all recreational purposes." People ex rel. Baker v. Mack (1971) 19 Cal.App.3d 1040, 1045 (emphasis added).

Does that mean it's okay for a homeless person to pitch a tent for the night on the bank of any navigable stream? Find out this week when Mr. H goes to trial (again) for "unlawful lodging," this time on the bank of the Tuolumne River under the Ninth Street Bridge in Modesto. (Mr. H tells me that the catfish from the river make a tasty supper, by the way.)

Also to be learned during the same trial--can an "unlawful lodger" still raise a necessity defense when there was room at the Modesto Gospel Mission (an establishment that requires participation in prayer as a condition of accommodation)?

"Turning Suspects Into Subjects"

2008-09-19T20:33:00.001-07:00

Love that Modesto!

2008-08-31T16:53:00.000-07:00

Last night, 33-year-old Michael Lasiter tried to cut off his arm in Denny's---first with a butter knife from somebody's table, and then with a butcher knife from the kitchen. Fortunately, police arrived in time to Taze Mr. Lasiter and remove him from the restaurant before he was able to completely sever his arm.

Denny's ("Always Open"!) was forced to close for the evening to "clean up."

Not Guilty

2008-07-19T09:46:00.000-07:00

Aah, those two words every defense attorney loves to hear.
So, anyway . . . homelessness is not a crime, according to twelve of the "Dry Creek Four"'s peers.
Shame on the Modesto Police Department.
Shame on the Stanislaus County District Attorney's Office.
(Just buy the guys a house next time.)

Stung

2008-05-24T15:04:00.000-07:00

Just like Ms. Angela Nellany, who will be released next week after serving 16 months for Assault with a Deadly Wasp, I once had an ex-spouse who was deathly allergic to wasp stings. Sadly, mine is also still alive.

Testimony of the Week

2008-05-22T17:47:00.000-07:00

The Judge (to the witness): If you could have a seat in the witness stand right to my left, please. Thank you.

The Witness: Stand?

The Judge: Pardon me?

The Witness: Stand or sit?

The Judge: You can sit. "Witness stand." You don't have to stand.

The Witness: I got you.

Nailing Jello to the Wall

2008-05-11T08:42:00.000-07:00

Having spent the last month or so trying to nail Jello to the wall,* it's back to regular business now. Planned projects here at ODL H.Q. include an article in praise of Justice Wiley's beautifully written opinion in the recent Second District case of People v. Margarejo. Finally, after twenty years of avoiding or misunderstanding the issue, it seems that courts are (or at least one is) beginning to appreciate the significance of the distinction between motive and purpose in STEP Act gang-enhancement cases.

* "Shooting fish in a barrel" is a nice antonym of "nailing Jello to the wall." (The DA's job in this particular case, as in so many others.)

Why Did You Apply For A Job At The California Supreme Court, Mr. ODL?

2008-03-01T09:56:00.000-08:00

A weakness shared by all lawyers is the desire to feel powerful. Some strive for the glorious and often public victory of a favorable verdict by arguing how the facts should affect one man. Others aspire to a quiet divinity by arguing how the law should affect all men.

Deficient in bravado and showmanship, I prefer the latter path, arrogantly emulating the Great Trinity (or "Trimurti") of Hinduism: Creating law, when necessary, as Brahma; preserving law, whenever possible, as Vishnu; and destroying law, when justified, as Shiva.

Aum.

Everyone's A Critic: California's Highest Court Rules That Enya's Music Is "Not Stirring"!

2008-02-17T19:53:00.000-08:00

During the penalty phase of Douglas Kelly's capital murder trial, the prosecution played a homemade video "montage" of the victim's life with music by Enya playing in the background. After viewing the video, the jury sentenced Mr. Kelly to death.

Mr. Kelly appealed to the California Supreme Court, claiming (quite correctly) that the use of "stirring music" as part of a videotaped victim impact statement is constitutionally impermissible.

In an opinion authored by Justice Ming Chin (aged 65), the Supreme Court held that the music of Enya--unlike that of Celine Dion*--was "generally soft, not stirring," and therefore "would not have had a significant impact" on the jury's decision to vote for death.

You be the judge.

* Ms. Dion is in good company. In a 2004 federal case, 58-year-old U.S. District Judge Mark Wolf held that the music of the Beatles and James Taylor was unconstitutionally "stirring." (Judge Wolf also described the music as "contemporary"!) See U.S. v. Sampson, 335 F.Supp.2d 166 (D.Mass. 2004).

WOMBAT*

2007-12-23T19:17:00.000-08:00

After (surprisingly) getting my client's incriminating statement suppressed, jury deliberations in the ensuing six-week long gang murder trial ended abruptly the other day after it became known that the jury had accidentally been provided a copy of that very statement. Oops.

* Waste Of Money Brains And Time.

Testimony of the Week

2007-11-07T07:44:00.001-08:00

Prosecutor (to Defendant charged with criminal threats): So you wrote this list of "signs of a serial killer," which includes "white," "male," "highly intelligent," etc. Does that describe you?
ODL: I object! Your Honor, this could describe almost anyone. It could describe me.
Judge: But Mr. ODL, it says "highly intelligent."

Boo-Tay! Part Two

2007-10-12T21:08:00.000-07:00

A while back, I successfully argued that a client convicted of petty theft (of medical marijuana plants--not a "farm crop," but that's a another story) could not also be convicted of felony receiving stolen property. That argument was based on the 1962 case of People v. Tatum, which held quite clearly that a thief cannot be convicted of receiving his own booty; in other words, felony receiving was a greater included offense of petty theft.

In 1992, the receiving statute was revised, such that "no person may be convicted [of receiving stolen property] and of the theft of the same property."

Notwithstanding the logic of Tatum---i.e., anyone who steals property is necessarily in receipt of that property, and thus the "greater" inclusive offense of theft is actually less severely punished than the included offense of receiving, the Fourth District held last week, in People v. Ceja, that the 1992 amendment "permits a person who is the thief to be convicted of receiving the same stolen property."

So it's official: A thief can be convicted of concealing his own booty.

Sorry Judge.

2007-08-31T19:24:00.000-07:00

ODL: Your Honor, it appears that my client has been charged with a crime that does not exist.* I therefore intend to file a demurrer on his behalf.

Judge: Mr. ODL, I know that you're an "intellectual," and you like to "write stuff," but do you really want to delay proceedings for another two weeks? After all, I think we all know what the DA meant to charge your client with.

ODL: Sorry, Your Honor.

* Not the first time this has happened. Not the second time either.

My First Murder Trial . . .

2007-07-30T21:03:00.000-07:00

. . . ended with a hung jury, after eight weeks (including just over a week of jury deliberation). Suddenly, not quite so many people treat me like a complete idiot.

Hobbies

2007-06-15T16:19:00.000-07:00

There's something about the unique expression captured in a serial killer's mugshot that begs to be rendered crudely in black and white oils on a large canvas. Perhaps the combination of defiance and defeat. Who knows?

Testimony of the Week

2007-05-03T15:42:00.000-07:00

Prosecutor (to the prosecution gang expert): What's the tattoo below "Little Chino"?
Defendant: "Fuck you."
Prosecutor: So the defendant just said, "Fuck you."
Defendant: No, that's what it says.