Oswald Defense Lawyer

Canadian Music!

2012-01-21T19:28:00.000-08:00

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.

The Wit and Wisdom of Ian Brady

2007-03-15T12:48:00.000-07:00

"[I]t is mostly in the quiescent company of the atheist, the sceptic, the cynic, the nihilist, the existentialist, those self-absorbed who are content to propose and preach nothing, that we may sometimes escape the obsessive demands of synthetic morality and the jarring irritations of theological presumption. They cast aside the ridiculous banality of metaphysical minutiae striving beyond man's feeble comprehension, and instead opt for that comfortable, sensual silence known chiefly to old friends, lovers and opium addicts, which is so often much more stimulating and inspiring."

Solving the Riddle of Gang-Related Crime Under Penal Code Section 186.22(b)

2007-01-26T15:38:00.000-08:00

Nineteen Years of Confusion

Almost twenty years of STEP Act jurisprudence have yielded nothing but an array of conflicting appellate opinions attempting valiantly, yet failing miserably, to solve the riddle of what exactly constitutes a gang-related offense subject to a penalty enhancement under Penal Code section 186.22(b). The California Supreme Court (which once described the STEP Act as presenting a "thicket of statutory construction issues") has yet to address the issue of gang-relatedness as defined by section 186.22(b), leaving the lower courts and the Ninth Circuit to come up with the following variety of opinions:

First District:
Defendant’s gang membership insufficient to prove gang-relatedness of charged offense
People v. Martinez (2004) 116 Cal.App.4th 753 (disagreeing with the Third District in Hill)

Second District:
Co-defendant’s gang membership sufficient to prove gang-relatedness of charged offense
People v. Romero (2006) 140 Cal.App.4th 15 (disagreeing with the Ninth Circuit in Garcia)

Third District:
Defendant’s gang membership sufficient to prove gang-relatedness of charged offense
People v. Hill (2006) 142 Cal.App.4th 770 (disagreeing with the First District in Martinez and the Fifth District in Frank S.)

Fourth District:
Co-defendant’s gang membership creates strong inference of gang-related charged offense, rebuttable by evidence that the charged offense is a non-gang-motivated "frolic and detour"
People v. Morales (2003) 112 Cal.App.4th 1176 (disagreeing with the Ninth Circuit in Garcia; disagreeing in part with the Second District in Romero)

Fifth District:
Defendant’s gang membership insufficient to prove gang-relatedness of charged offense: co-defendant’s gang membership may be sufficient
In re Frank S. (2006) 141 Cal.App.4th 1192 (disagreeing with the Third District in Hill; agreeing in part with the First District in Martinez and the Ninth Circuit in Garcia)

Ninth Circuit:
Defendant and co-defendant’s gang membership irrelevant: to be gang-related, the charged offense must be committed with the intent to facilitate specific secondary gang crime
Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (disagreeing with the Second District in Romero, the Third District in Hill and the Fourth District in Morales)

The above cases all fail to adequately define gang-relatedness within the spirit of the STEP Act for a number of different reasons:

Martinez and Frank S. simply tell us that a defendant’s gang affiliation on its own does not automatically render any crime by that defendant gang-related. Neither case expressly states what would render a crime gang-related, although the Fifth District in Frank S. appeared to require that there be evidence that the charged offense have a gang-related purpose.

Romero imposes a gang-related enhancement for crimes with no gang-related purpose committed by any person with one or more gang member co-defendants, thus defining gang-relatedness by membership alone, as well as absurdly and unjustly punishing non-gang-member defendants more harshly than gang member co-defendants engaging in the exact same criminal conduct.

Although Romero cites Morales with approval, Morales at least acknowledges that gang members––even in groups—can commit crimes that are not gang-related. The problem with Morales, however, is that it appears to shift the burden to the defense to present evidence that an offense committed by gang members is not gang-related.

The Hill theory that any crime committed by a lone gang member is automatically gang-related because a gang member defendant facilitates gang crime merely by facilitating his own crime is just plain silly, and it unconstitutionally punishes mere gang membership.

Garcia is too narrow in that it requires facilitation of secondary criminal activity. The Ninth Circuit failed to recognize that there may be offenses committed by multiple or even lone defendants that in and of themselves are gang-related within the spirit of the STEP Act without regard to the potential impact on other gang activity.

The Riddle Solved

The Morales court came the closest to solving the riddle when it spoke in terms of agency and capacity by using the tort law term of art "frolic and detour," i.e., conduct falling outside the scope of one’s agency.

The key is not whether the defendant, or those he assists, are gang members—a term undefined by statute or case law and vulnerable to a variety of different meanings; rather, the key to solving the riddle is whether the defendant acts in the capacity of an agent of the gang. Such a definition would exclude the conduct defined by the holdings of Romero and Hill as gang-related, but would include conduct beyond that defined by Garcia. For example, the successful completion of many assaultive crimes is often facilitated by the invocation of a gang’s name (whether verbally or otherwise)—something which would likely induce submission and deter reporting. In those instances, a defendant acts overtly as an agent of the gang for the specific purpose of facilitating completion of that crime alone, with only the incidental effect of facilitating other gang crime by enhancing the gang’s reputation for intimidation and subduing the surrounding community. Despite not meeting the requirements of Garcia—i.e., the defendant must have the intent to facilitate specific other gang crime—such crimes would clearly be gang-related within the spirit of the STEP Act, and subject to a penalty enhancement, in addition, of course, to those that do meet the requirements of Garcia.

One can only hope that when the California Supreme Court finally addresses the issue of the STEP Act’s gang enhancement, as it one day must, it will secure some uniformity and consistency in the application of the enhancement by crafting a definition that recognizes what should be obvious to an unbiased observer; just as not all crimes committed by white supremacists are hate crimes, not all crimes committed by gang members are gang-related crimes. Until that day, trial courts have the luxury of crafting their own definitions in anticipation of the Supreme Court’s inevitable wise pronouncement, using the best parts of a variety of definitions from the state’s appellate courts and the Ninth Circuit. The Fifth District's recent holding in Frank S. that a defendant’s gang affiliation alone does not make a crime gang-related would seem a good place to start, followed by the Fourth District’s astute observation in Morales that to be gang-related, a crime must be committed by someone acting as an agent of a criminal street gang.

Demurrer Sustained Without Leave to Amend

2007-01-06T22:12:00.000-08:00

Okay, so three veteran attorneys joined in my cockfighting demurrer, and what do they do? They start prattling on (along with the prosecutor) about the facts of the case. How did these people never learn that a demurrer is aimed solely at the language of the complaint? Anyway, being "present" at a cockfight is not a crime. Official.

May the Best Cock Win

2006-12-02T21:41:00.000-08:00

The other day I was appointed to represent Juan (pictured above), who is accused of violating Penal Code section 597c(a) by being "wilfully and unlawfully present during an exhibition of an animal fight, specifically the fighting of gamecocks."

Fortunately for Juan, but not the local gamecock population, it is not a crime in California to merely be present at the scene of a crime during its commission, so the charge is demurrable as unconstitutionally overbroad.

What the Aitch E. Double Hockey Sticks?!

2006-11-30T23:23:00.000-08:00

Roky Erickson selling Dell computers?
Mark E. Smith selling Mitsubishi cars?

America the . . .

2006-11-25T21:22:00.000-08:00

" . . . lumbering, bellicose, dim-witted giant."

Sam Harris, Letter to a Christian Nation (Knopf, N.Y., 2006).

Favorite Gang-Related Quote From 1987

2006-11-17T21:04:00.000-08:00

"[The STEP Act] will be laughed out of court."
- State Senator Bill Lockyer, June 27, 1987

(In 1998, Mr. Lockyer took charge of defending the Act's constitutionality in court as California's Attorney General)

Names for a New Scooter Club

2006-10-17T22:15:00.000-07:00

The Scooteños

Scooty Tang

The Scoot Tang Clan

Scootros-Scootros Ghali

The Scootopian Society

Yeah, Baby!

2006-10-14T23:24:00.000-07:00

Do What Thou Wilt . . .

2006-10-09T19:42:00.000-07:00

. . . shall be the whole of the law.

Koan of the Week

2006-09-24T12:43:00.000-07:00

A monk was asked to discard everything.
"But I have nothing!" he exclaimed.
"Discard that, too," ordered his master.

Why All Prosecutors are Bad Lawyers

2006-09-21T21:51:00.000-07:00

The easiest way to be a bad lawyer is to believe in what you do. For prosecutors, it's a job requirement.

Fame at Last

2006-09-20T20:12:00.000-07:00

Apparently the "premiere criminal law review in the Western United States" plans to publish some of my thoughts on the California appellate courts' befuddlement with street gang laws
in the upcoming Fall 2006 issue (which actually comes out in February 2007).

(The link is to an early draft which makes no mention of the recent case of People v. Hill. The final version will be more up to date and no doubt will be improved immensely thanks to the editing skills of smart Berkeley kids such as those seen here with fictitious Boalt Hall alumni, Sandy Cohen.)

Spot the Difference

2006-09-18T21:54:00.000-07:00

India's Criminal Tribes Act of 1871

Enacted by a largely white government in response to widespread fear of marauding ethnic gangs
Allowed for certain groups formed among ethnic minorities to be designated “criminal tribes, gangs, or classes,” based on the opinions of local government officials
Facilitated surveillance of members of those groups and compelled members of those groups to be fingerprinted and documented by law enforcement
Authorized harsher penalties for members of “criminal tribes, gangs, or classes,” compared to non-members committing the same offenses
Condemned by Nehru as “out of consonance with all civilized principles of criminal justice” and repealed soon after India gained independence from Britain

California's Street Terrorism Enforcement and Prevention Act (STEP Act) of 1988

Enacted by a largely white government in response to widespread fear of marauding ethnic gangs
Allowed for certain groups formed among ethnic minorities to be designated “criminal street gangs,” based on the opinions of local peace officers
Facilitated surveillance of members of those groups and compelled members of those groups to be fingerprinted and documented by law enforcement
Authorized harsher penalties for members of “criminal street gangs,” compared to non-members committing the same offenses
Still in use throughout California

Conundrum

2006-09-01T06:36:00.000-07:00

Robert meets all the elements of criminal street gang participation in violation of Penal Code 186.22(a), except for one---the commission of a felony.

One night, Robert is caught carrying a loaded firearm on his way to the store.

Carrying a loaded firearm in public is a misdemeanor . . . unless the person carrying the firearm is a criminal street gang participant, in which case the crime would be elevated to a felony.

What crime or crimes is Robert guilty of?

a) Criminal street gang participation
b) Carrying a loaded firearm in public, a misdemeanor
c) Criminal street gang participant carrying a loaded firearm in public, a felony
d) a and c
e) None of the above

(Answer at 141 Cal.App.4th 604.)

Hypothetically Speaking . . .

2006-08-17T21:26:00.000-07:00

"Johnny" was adopted from a Third World orphanage as a young child and given an estimated birth date by his Californian parents. He is tried and convicted as a minor in juvenile court for a first degree burglary committed on the eve of his eighteenth birthday. Shortly after the trial, Johnny undergoes "bone age" tests, which conclusively prove that Johnny was in fact at least nineteen when he committed the burglary.

What happens next?

Word of the Day

2006-07-24T18:59:00.000-07:00

Anomie (or Anomy)
noun

1. Social instability caused by erosion of standards and values.

2. Alienation and purposelessness experienced by a person or a class as a result of a lack of standards, values, or ideals.

Target for Faraway Laughter, Stranger, Legend, Martyr, Raver, Seer of Visions, Painter, Piper, Prisoner.

2006-07-13T21:17:00.000-07:00

Roger Keith "Syd" Barrett
January 6, 1946 - July 7, 2006

Oh where are you now
Pussy willow who smiled on this leaf?
When I was alone you promised the stone from your heart
My head kissed the ground
I was half the way down, treading the sand
Please, please, lift a hand
I'm only a person whose armbands beat
On his hands, hang tall
Won't you miss me?
Wouldn't you miss me at all?

The poppy birds way
Swing twigs coffee brands around
Brandish her wand with a feathery tongue
My head kissed the ground
I was half the way down, treading the sand
Please, please, please lift the hand
I'm only a person with eskimo chain
I tattooed my brain all the way . . .
Won't you miss me?
Wouldn't you miss me at all?

Dark Globe, 1969.

Motion in Lemonade

2006-07-07T22:28:00.000-07:00

Next week I defend Mr. Z, a high-priced, unlicensed plumber, accused of theft from an elder by false pretenses.

The fun part of this trial is that I get to argue in favor of everything I despise about capitalism.

Here is an excerpt from a motion in limine to be filed Monday:

". . . The prices charged by Mr. Z. were equivalent to "puffing," or an exaggeration of the value of his work, actionable only on television's Moral Court. See People v. Morphy (1893) 100 Cal. 84. Sadly, in a free market capitalist society, such as the one we enjoy in America, salespeople may charge whatever a little old lady is willing to pay. Caveat Emptor."

Miss You

2006-07-01T20:15:00.000-07:00

Well I've been haunted in my sleep
You've been starring in my dreams
Lord I miss you

Most Robberies by Gang Members are for the Benefit of the Gang. Therefore, THIS Gang Member Committed THIS Robbery for the Benefit of the Gang.

2006-06-26T22:01:00.000-07:00

Most pets are cats. I have a pet dog. Therefore, my dog is a cat.

Testimony of the Week

2006-06-05T20:04:00.000-07:00

ODL: What was it that either of these men said to you?
Little Old Lady: Pardon?
ODL: What was it that either this man here or his partner said to you that convinced you that your water heater needed to be repaired?
Little Old Lady: I don't get you, sir.
ODL: What exactly did anyone say to you? What exactly did these men say to you to convince you that your water heater needed a repair?
Little Old Lady: I still don't get you.
ODL: Are you able to hear me okay?
Little Old Lady: Pardon.

Testimony of the Week

2006-06-04T09:41:00.000-07:00

Prosecution Gang Expert: I don't believe there is racism against any race now.

Testimony of the Week

2006-05-24T22:59:00.000-07:00

ODL: And what is the basis of your expert opinion that gang members commit more crimes than regular people?
Prosecution Gang Expert: Well, the jail is full of gang members.
ODL: If, in your expert opinion, the jail is full of gang members, where do you put everyone else?

Technicalities, Loopholes, and How I Defend "Child Molesters."

2006-05-06T17:20:00.000-07:00

A few weeks ago, I was privileged to take part in a question and answer session with a group of visiting English high school students. Fairly predictably, one of the students asked how I feel when I get a guilty person off on a "technicality." I gave my usual Defending the Constitution, Slippery Slope, etc. response.

Frequently, however, people are more specific and ask me (knowing that I am a father to small children) how I can defend "child molesters."

Well, one reason I haven't posted here in quite a while is that I became obsessed with a case--something I told those English kids a good lawyer should never allow to happen. And the case that tempted me into obsession involved an alleged child molester who will most likely get off "on a technicality."

Mr. X was arrested a couple of months ago for a violation of Penal Code section 288.5 (continuous abuse of a child under 14) alleged to have occurred sometime between September 2000 and September of 2001.

Even though my client is 22 now, he was arraigned in juvenile court because he was under eighteen at the time of the alleged crime.

Just prior to the trial, the petition was amended to extend the time period to March 2002. (My client turned 18 in September of 2001.)
After losing a speedy trial motion (the judged ruled that a 3-year delay in serving a warrant was not unreasonable), my client went to trial before a judge (juveniles are not entitled to a jury trial) and lost. (Because this was juvenile court, instead of the client being found guilty, the "petition was found true.")

After trial, I argued that the case must be dismissed because after the petition was amended to allege a period extending beyond my client's eighteenth birthday it became an adult felony complaint (albeit mislabeled as a juvenile petition) and my client was denied his right to a jury trial as an adult. (It was irrelevant that the judge found that the minimum three lewd acts occurred prior to my client's eighteenth birthday--it was the dates alleged, not the dates proven, that precluded juvenile court jurisdiction.) The prosecutor responded that I should have objected to her "mistake" earlier instead of quietly sitting through a bench trial. The judge said it was "invited error." Hopefully, before the judge comes back next week with a decision, he will realize that there is no such thing as an implied waiver of jury trial.

If the judge denies the motion to dismiss, the case will go back to the client's county of residence, where (notwithstanding the true finding here on the petition) my client's current age will permit him to instantly seal his record (normally juveniles must wait until they are 18--my client is already over 18) and will preclude the court from imposing any punishment.

Was any justice done here?
My client will avoid any punishment, and his record will stay clean.
A friend in the DA's office who had heard about this case told me that he believes the true finding provides closure for the victim, even if that finding is ultimately vacated.

Everybody wins.

Your Turn!

2006-04-08T22:58:00.000-07:00

What is the highest scoring play you can make? (Your tiles are X, P, Y, O, E, B and Z.)

Testimony of the Week

2006-03-31T10:09:00.000-08:00

ODL: If a "criminal street gang" is defined under the law as any ongoing organization or association of three or more people having a common identifying name or symbol, and whose members have committed two or more of certain offenses including robbery and grand theft, then can you please tell the court why the Los Angeles Police Department Rampart Division is not a criminal street gang?

Prosecution Gang Expert: No, I cannot.

The Judge: What's the "Rampart Division"? I've never heard of that.

Quarry Shoots Hunter

2006-03-07T05:29:00.000-08:00

Some cases are about more than self-defense. Some are about the right to defend not just one's life, but the right to live that life as a human being.

Testimony of the Week

2006-03-02T11:17:00.000-08:00

ODL: Is your girlfriend a verbally abusive person?
The Witness: She has a black belt in mouth karate.

Furry Friend

2006-02-26T21:34:00.000-08:00

Waste
Of
Money
Brains
And
Time

Picking Up The Pace

2006-02-17T09:14:00.000-08:00

Michael Morales

Born 1960

Will die February 21, 2006

Update: Still not dead, as of 2/26/06. Seems those ethical anesthesiologists dropped a wrench in the works.

Prosecutorial Inconsistency: Doublethink in the Courtroom

2006-01-28T21:17:00.000-08:00

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, . . . to forget whatever it was necessary to forget, then to draw it back into memory again at the moment when it was needed, and then promptly to forget it again: and above all, to apply the same process to the process itself. That was the ultimate subtlety: consciously to induce unconsciousness, and then, once again, to become unconscious of the act of hypnosis you had just performed. Even to understand the word "doublethink" involved the use of doublethink."
George Orwell, "1984."

My client is awaiting trial on a charge of assault with a deadly weapon. He apparently gave the police a tearful confession describing how he stabbed the victim one time with a pocket knife during a street brawl and then disposed of the knife. One small problem . . . I just learned that another young man recently pled guilty to a charge of assault with a deadly weapon arising out of the same incident. The factual basis for that plea was the victim's statement to the police describing how that defendant inflicted the victim's only wound with a pen.

May the prosecutor vouch for the veracity of my guy's "confession" when it is factually inconsistent with the basis of the other guy's charge and plea? I believe In re Sakarias (2005) 35 Cal.4th 140 says no.

Trombetta/Youngblood Conundrum

2006-01-25T12:47:00.000-08:00

Yesterday I lost a Trombetta/Youngblood* motion. A Trombetta/Youngblood motion invites the court to dismiss a case when evidence has been destroyed by the prosecution.

To win a Trombetta/Youngblood motion, the moving party must show that the destroyed evidence was "potentially exculpatory," and that no comparable evidence exists.

So how on earth can you show that the destroyed evidence was "potentially exculpatory" without having comparable evidence?

*California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51.

Why Did I Go?

2006-01-17T06:16:00.000-08:00

"To make a point." At least that's what I told a reporter. An hour or two after the moon went in, as Clarence Allen's spirit flew far away from San Quentin, my wife asked me how I felt. I told her I just felt deeply ashamed. Ashamed of my part in the killing of Mr. Allen. That is why I went.

And Another One Down

2006-01-14T16:41:00.000-08:00

Clarence Ray Allen
Born January 16, 1930
Will Die January 17, 2006

"[T]he punishment or treatment of criminal offenders is directed toward one or more of three ends:
(1) to discourage and act as a deterrent upon future criminal activity,
(2) to confine the offender so that he may not harm society and
(3) to correct and rehabilitate the offender.
There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution."

In re Estrada (1967) 63 Cal.2d 740, 745 (emphasis added).

Why Did The Rhode Island Red Chicken Cross The Road?

2005-12-28T20:00:00.000-08:00

She crossed the road for the benefit of, at the direction of, or in association with the Norteno criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by Norteno gang members.

Cohort Learner and I are planning on writing an article about some of the bullshit evidence and arguments used to "prove" gang-motivated conduct under California's STEP Act. Any input would be most welcome.

Merry Christmas!

2005-12-24T15:38:00.000-08:00

Fortunately for Santa, mooning is not a crime in California. See In re Dallas W. (2000) 85 Cal.App.4th 937, 938.
But he needs to be careful in North Carolina. See State v. Fly (1997) 127 N.C.App. 286, 288.

Donny Who?

2005-12-18T19:39:00.000-08:00

The other day my favorite prosecutor, apparently not satisfied with his swift guilty verdict, went on to accuse me of "coloring outside the lines" during the trial. I told him he should look forward to the race card being played at our next trial together in April. His response? "Well, in that case, it will be a donnybrook!"

Apples and Oranges?

2005-12-16T15:42:00.000-08:00

Should a defense attorney take more pride in the acquittal of a client whom he or she knows to be innocent or in the acquittal of one whom he or she knows to be guilty?

Goodbye Tookie Tuesday

2005-12-08T14:37:00.000-08:00

Stanley "Tookie" Williams is responsible for co-founding what is now one of the largest criminal street gangs in the world. Even in my own little county, there are children dying and killing in the name of the organization planned and built by Tookie. Since his conviction in 1981 for murdering four people during two robberies, Tookie has done the following:

Maintained his innocence
Written a few poorly selling "anti-gang" children's books
Spoken out against gang violence
Devised rarely used "peace protocols" for gangs
Claimed (on his website) to have saved one hundred and fifty thousand lives
Been nominated for several humanitarian awards (easy), but never received one (hard)
Refused to "rat out" his former Crips associates

Nothing Tookie has ever done justifies his execution. Nor does anything he has ever done justify clemency. But the execution of anyone is still wrong, and for several reasons having nothing to do with Tookie's supposedly redemptive post-conviction life. Two reasons which are often overlooked, and which have never been addressed in a published appellate opinion are outlined briefly below.

The Death Penalty is Impermissibly Retributive

Capital punishment is constitutionally permissible only if it measurably contributes to deterrence, incapacitation, or retribution. Coker v. Georgia (1977) 433 U.S. 584. The fact that the death penalty has never been proven to have any deterrent effect or to incapacitate any more effectively than life imprisonment has never mattered, however, because few would doubt that the death penalty significantly contributes to the goal of retribution, whether or not that goal is morally justifiable.

The problem for the massed would-be killers of Tookie and his Californian ilk is that, while the United States Constitution permits states to impose predominantly retributive punishments, the state of California has chosen to prohibit such punishments. In re Estrada (1965) 63 Cal.2d 740, 745 (holding that a punishment "motivated by a desire for vengeance" is "not permitted in view of modern theories of penology"); also People v. Cowsar (1974) 40 Cal.App.3d 578, 580 (citing Estrada and rejecting retribution as a legitimate end for any punishment).

The Death Penalty is Religious Speech

The concept of execution as "punishment" assumes that the condemned man is able to experience a loss as a result of his punishment. That would only be the case if (1) there is an afterlife, and (2) life after death is worse than life before. Thus the death penalty is predicated upon the judaeo-christian doctrine of a merit-based afterlife, in violation of the First Amendment's prohibition against governmental advancement or endorsement of religion.

********
America is the only nation which executes primarily out of revenge. (Other executing nations, unhindered by "due process of law," are able to also reap the deterrent benefit of swift, frequent, and public executions.)

When we kill out of vengeance, we place ourselves below the most despicable of the condemned. Only when the executions stop may we dare to call ourselves civilized.

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

2005-11-30T15:53:00.000-08:00

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

2005-11-30T05:23:00.000-08:00

Those were the days.

Mea Culpa

2005-11-22T14:51:00.000-08:00

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.

Boo-TAY!

2005-11-21T14:53:00.000-08:00

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.

Lost In Translation

2005-11-20T06:48:00.000-08:00

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."

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

2005-11-18T15:00:00.000-08:00

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.

The Eve of World War

2005-11-15T15:32:00.000-08:00

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.)

Farm Crop? No Way, Dude!

2005-11-10T11:45:00.000-08:00

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?

I Need To Improve My Diction

2005-11-09T15:04:00.000-08:00

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.

Under Duress

2005-10-31T15:53:00.000-08:00

I was recently appointed to represent an eleven-year-old boy accused of burglarizing a school. The boy claims that he was bullied into it by older, tougher boys. While researching the defense of duress, I could not get out of my head the following lyrical gem from Mr. Don Van Vliet:

I saw you dancin' baby in your x-ray gingham dress
I knew you were under duress
I knew you were under your dress
Just keep comin' Jesus
You're the best dressed*

Now it's in my head again.

* From "My Human Gets Me Blues" on the Trout Mask Replica album.

Strict Liability Haiku

2005-10-30T10:17:00.000-08:00

All Poetry Is Crap Except For Mine

2005-10-30T09:33:00.000-08:00

Virgil was a manatee,

Verging on insanity.

The Truth Is Out There

2005-10-30T08:12:00.000-08:00

Perhaps because of the tendency of pundits to refer to the jury trial as a "search for truth," many of my clients are unusually eager to go to trial, confident that when the truth is revealed to the jury, a not guilty verdict will be guaranteed.

I tell these clients that, as unjust as it may seem, the truth does not matter. What matters is what will be believed.

2005-10-23T07:51:00.000-07:00

I am not convinced that hate crime legislation amounts to unconstitutional Orwellian punishment of "thoughtcrime."
(Not that I wouldn't try and argue that to a jury, should the need arise.)
Hate crime laws punish discriminatory conduct, not offensive thoughts.
I do still have some objections to hate crime laws, however, and I would be very interested to hear opinions on these objections or on any other aspect of hate crime prosecution.

Hate Crime Legislation is a Form of Affirmative Action
Hate crime laws are intended to recognize the fear instilled within a class of people when bias-motivated crimes are committed against members of that class. This is done by imposing additional penalties intended to provide a greater deterrent than for the "hateless" version of the same crime. The end result is that blacks and homosexuals are provided special "protection of the law" from racist or antigay crime. Why should little old ladies receive less protection from crimes committed against them because of their frailty. Why are children less worthy of special protection from harm?
Isn't this affirmative action? A little "extra" government help intended to redress the oppression and victimization of blacks, etc?

The California Law is Poorly Drafted
The California hate crime statutes do not require bias against the victim as a necessary element, only that the crime be committed, in whole or in part, "because of one or more" of certain listed actual or perceived characteristics of the "victim," including disability, gender, race, religion and sexual orientiation.
What then of the opportunistic robber who steals from a blind man to avoid identification? The crime was certainly committed, at least in part, because of the disability of the victim. But the robber has no animosity toward blind people.
And what about the neo-nazi who spray paints a swastika on a bus shelter directly across the street from a jewish community center? The victim of the vandalism is the bus company. The perpetrator likely did not know or care about the any of the "characteristics" of the bus company, only those of the many jewish "non-victims" to whom the content of the graffiti was directed.
Gender is a listed characteristic. Is all heterosexual rape and domestic violence hate crime because it is committed "because of" the victim's gender? If so, then why should the bisexual "equal opportunity" rapist be punished less severely than the heterosexual rapist?

Hate Crime Laws Are Unduly Alarmist
Proponents of hate crime laws like to tell us about the under-reported epidemic of hate crime. The truth of the matter is that in California last year, there were 1,409 reported hate crimes, but only 139 convictions. Assuming that far fewer than 90 percent of the perpetrators eluded capture, these figures would seem to indicate over-reporting of hate crimes.

Hate Crime Update: Dead Brit DJ John Peel Subpoenaed to Render Expert Opinion on the Varying Gayness of New Order's Music Throughout the Eighties

2005-10-21T05:51:00.000-07:00

The Mr. O "hate crime" prelim finally got going at around 3 pm yesterday, which left me about 10 minutes to begin cross-examining the "victim" before having to end for the day. The hearing is expected to last another hour or two, and will resume in a couple of weeks.

After establishing that the loud music emanating from the victims' car would have been the only thing that might have given the defendants reason to believe that the victims were gay, the following exchange occurred:

ODL: What kind of music were you playing on your car stereo?
Witness: I think it was New Order, Techno.
ODL: New Order and Techno? Or techno New Order?
W: I don't see how that's relevant.
ODL: Well, you're going to have to answer unless the prosecutor objects.
W: It was New Order.
ODL: Late eighties New Order or early eighties New Order?
W: Late eighties, I guess. It was the "Substance" album, which I think was released in 1987.
ODL: Isn't it true that although "Substance" was released in 1987, "Substance" is actually a retrospective compilation containing tracks which were first recorded in the early eighties?

Ha!

Hate Crime? No, I Love It!

2005-10-20T05:45:00.000-07:00

Well, the last couple of weeks at work have been fairly uneventful, hence the recent topical wandering on this blog. But later today, that may change. This morning, I will be appearing on behalf of Mr. O at his preliminary hearing. Mr. O (along with two cohorts) is charged with a "hate crime," based on the following scenario:

Mr. O and his friends are in the drive-thru lane at Taco Bell. Two guys in the car behind Mr. O's have their stereo up more than a tad too loud. Mr. O and/or one or more of his friends tell them rather impolitely to turn down the stereo. The language used in the request includes "faggots," "queers," and "other derogatory terms." The guys with the loud stereo retreat out of the drive-thru lane but are pursued by Mr. O and friends who run them off the road to deliver a misdemeanor battery to one of them and a felony vandalism to their windshield. Again, epithets beginning with F and Q are hurled.

Is this a hate crime? To be a hate crime under California law, discriminatory motive must be a "substantial factor" contributing to the selection of the victim. In America, merely calling someone a "faggot" is not against the law, even while you're punching them in the face. Certainly the punching to the face is illegal, but the accompanying insult adds nothing to the culpability of the assailant, unless the victim is being punched because he is gay.

In my opinion, the question of motivation in Mr. O's case might well be resolved by finding out one crucial fact that was not included in the police report:

What was the loud music playing on the gay guys' stereo?

Oh, and I decided to take Nimiwey's advice and not argue to the judge that the hate crime enhancement should be stricken because it is gay.

Fictive Personae (Part One)

2005-10-19T20:25:00.000-07:00

A recent post on the lovely and mysterious Nimiwey's blog regarding the unique modern phenomenon of involuntary internet imposture prompted me to regurgitate the following:

The majority of American courts do not accept Multiple Personality Disorder as a defense to murder. Under the prevailing "Alter Approach," criminal intent of the secondary "alter" persona is sufficient to impute culpability to the defendant, regardless of the host persona’s awareness of the crime. The fact that the culpable persona is most likely involuntarily absent at trial does not prevent prosecution and punishment of the host persona.

2005-10-19T20:07:00.000-07:00

Corner Light by Tom Rickman

He Said "Arson" (Hehehe)

2005-10-14T23:15:00.000-07:00

In recent months I've handled several juvenile arson cases, ranging from a bored 14-year-old igniting the tampon dispenser in the school bathroom to a couple of 17-year-old stoners burning down a house after watching Val Kilmer lip-synch "Light My Fire." Almost all of these kids were charged with arson and possession of an incendiary device (usually the cigarette lighter found on them).

I think I am beginning to understand why kids start fires, but I am a long way from figuring out how possession of an incendiary device can be charged as a separate offense to the arson when the "device" is merely a book of matches or a cigarette lighter.

An incendiary device is defined by statute (California Penal Code section 453) as "a device that is constructed or designed to start an incendiary fire by remote, delayed, or instant means, but no[t] [a] device commercially manufactured primarily for the purpose of illumination." (An "incendiary fire" is defined as "a fire that is deliberately ignited under circumstances in which a person knows that the fire should not be ignited"; an arson, essentially.)

If "devices" such as matches and cigarette lighters fall within the statutory definition, then shouldn't that make possession of an incendiary device a lesser included offense of arson?

Unless there's a way to start a fire without an incendiary device.

"Do What Thou Wilt Shall Be The Whole Of The Law"

2005-10-12T06:02:00.000-07:00

A particular post on the intriguing Mental Rebellion blog brought to mind the above quotation by Aleister Crowley (aka "The Great Beast 666").
Well, just like libertarianism and pyramid schemes, these "words to live by" sound pretty good (especially to the egotistically inclined) until you do the math. In Crowleyworld, you'll need either a very big gun or a very deep hole.

(In law school I looked for a long time for a t-shirt w/ Crowley's ugly mug and the "Do What Thou Wilt . . ." slogan. I never found one. Today, I think I would prefer Judge Dredd's "I Am The Law!")

Evolution Made Me Do It

2005-10-08T18:39:00.001-07:00

It's a lot easier to empathise with clients accused of murder when you realise how we are all genetically predisposed toward homicide, thanks to evolution. Some of us just do a better job of suppressing those urges than others. And that's only because we fear the repercussions of getting caught.

Today I finally finished reading "The Murderer Next Door: Why The Mind Is Designed To Kill," by David M. Buss, Professor of Evolutionary Psychology at the University of Texas. His book, which includes gruesome murder fantasies gathered from "regular" folks as part of years of research on the psychology of homicide, as well as several bizarre tales of tribal shenanigans, ends on this stark note:

Be aware of just how real the threat of murder is, especially by those we know and those we love. Beware of the man whose uninvited sexual stare lingers a second too long. Exercise caution around a stepparent who just might prefer that you didn't exist. Take heed of the rival who sits silently seething at your success. Think twice about the stoic whom you have just humiliated in front of his peers. Watch out for the ex-mate of the lover you've just lured away. Be wary of the romantics who thought you were "the one" before you unexpectedly spurned them. Be vigilant of the mate turned stalker who just won't let go. Murderers are waiting, they are watching, they are all around us.

Easily Distracted

2005-10-07T22:42:00.000-07:00

This morning, my client sat down next me at his preliminary hearing wearing a GIANT PUFFY COAT.

As a strangely boyish, yet monotonous police officer began to testify for the People, my mind began to wander a little . . .

Michelin man. External repairs needed on the Space Station Norteno. Macy's Thanksgiving Day Parade. Robby the Robot.

My client began to wriggle around. The coat was coming off. What would emerge? I scooted over a couple of feet to make room for this frenetic metamorphosis.

As it turned out, it was more Russian Doll than Monarch Butterfly. Relatively speaking, the puffy coat had not really added much bulk at all to its brick shithouse wearer. What emerged was simply a slightly smaller, whiter, fleshier, Michelin man.

But now the coat was gone, I could concentrate on this guy's HUGE ARMS. But it wasn't the hugeness of those arms that kept my attention. I had seen many huge arms before. It was the short stubbly arm hair like he had shaved it a day or two ago. Hmm. Never seen that before.

Why would this man shave his arms? What kind of potential arm-hairiness would warrant such a thing? Why had he let it get all stubbly like that?

And why was the cop was relating hearsay without being Prop 115 qualified.?
"Objection!"

Pass the Adderall, please.

What Would YOU Do? (Part 2)

2005-10-07T22:39:00.000-07:00

Comrade Nebur and I faced this dilemma a little while back . . .

Your client has the chance of a dismissal with prejudice because the DA did not properly notice a request for a continuance. However, if you waive the defect, you keep the goodwill of your adversary and future clients will benefit.

What do you do?

N is for Nemesis

2005-10-07T12:07:00.000-07:00

I had planned on writing a short post about something rather annoying that happened in juvenile court yesterday involving my nemesis, the zealous prosecutor of children, Mr. N. But then I thought I should reflect a short while before posting.

By the way, I just put up this nifty flickr "rogues gallery" thingy to the right. Click on the little pictures for seconds of fun!

The Joy of Demurring

2005-09-30T21:16:00.000-07:00

"Your Honor, my client would like to withdraw his plea of not guilty. He appears to have been charged with a crime that does not exist."*

I could swear I heard the ghost of Franz Kafka chuckling in Department 8 this morning as I spoke.

* Mr. O. had been charged with a felony violation of California Penal Code section 422.7(b); "a crime that does not exist," according to People v. Wallace (2003) 109 Cal.App.4th 1699.

Zen and the Art of Advocacy

2005-09-26T22:13:00.000-07:00

A short while ago, in response to a post on Little Lulu's blog about "true believers," I commented as follows:

In my opinion, accepting the futility of the system and our roles in it (whichever side you are on) is the first step toward being a great lawyer. Only then can you see prosecuting or defending as "just work" and attain that state of "zen" objectivity that is essential to success, that is, success in the sense of being happy at work and success in the sense of providing the most effective representation to your client.

That comment of mine was then reprinted on the esteemed Arbitrary and Capricious blog, where it appeared from one of the responses that some people might be a little befuddled by what I said.

So, just to clear things up, here's a quote from master swordsman Takano Shigeyoshi:

"As soon as one cherishes the thought of winning the contest or displaying one's skill in technique, swordsmanship is doomed."

Hired Guns

2005-09-25T09:31:00.000-07:00

I haven't posted anything in a little while, simply because nothing very "blogworthy" has been happening here. However, I have been visiting (and commenting on) a few other blogs, a couple of which touched on an issue that arose at work recently. Instead of clogging other people's blogs (blog-clogging?), I figured I should probably throw a few pixels in here on that issue . . .

One of my colleagues, Mr. L., a very experienced and skillful criminal defense attorney, applied for a job at the District Attorney's office---the Other Side!

In court the other day, Mr. L.'s cover was blown by his adversary of the day objecting on the record to Mr. L.'s involvement in an ongoing case, apparently fearing some sort of ineffective assistance appellate fallout. To make things even worse, a veteran "true believer" from the Public Defender's office could be heard by all and sundry at a local bar that night, loudly voicing her disapproval of Mr. L.'s continued representation of criminal defendants.

My opinion is that a good attorney---and Mr. L. is more than just a "good" attorney---can represent any client and advocate any position, unaffected by his own personal beliefs and opinions. Mr. L. has no duty to withdraw from representing clients, nor does he have a duty to disclose his plans to them, any more so than if he had plans to quit the law and become a farmer.

The only objection I have to working for the D.A.'s office is the apparent requirement that as well as being a good attorney, you have to display a certain "attitude." That said, if Mr. L. goes over to the "dark side," he will be in the company of not just good attorneys, but some good people.

Anyway, I wish Mr. L. all the best. I've learned a lot from him, and I hope to learn more, whichever end of the table he sits at.

The Client With No Name

2005-09-13T10:38:00.000-07:00

Yesterday I appeared on behalf of Baby Doe. Baby Doe has no name because she was left as a newborn at a local hospital. Under the "Safe Surrender" law, the mother escaped prosecution by leaving the baby at a designated site, and the child entered the dependency system as "Baby Doe." At yesterday's hearing, the parental rights of the unknown parents were terminated, and the adoption process officially began. Within a couple of months, Baby Doe will not only have two loving parents, but she will also (officially) have a name.

I try not to be emotionally affected by dependency proceedings, but two things tested my lawyerly objectivity during the hearing. One was when, instead of having the bailiff summon the parties into the courtroom in the customary manner by hollering the child's name in the lobby, the judge asked the social worker to go find the foster parents. The other moment was when the judge asked me to pass the Kleenex to the prospective adoptive parents seated behind me, thus forcing me to turn around and witness their tears of joy.

After I left the courtroom, I couldn't help but think about a tragically contrasting case which Comrade Nebur and I were tangentially involved in last fall. In that case, the mother left newborn "Baby TM" under a motel room sink to slowly die in the dark.

Critics of the Safe Surrender program say that it is largely ineffective and encourages parental irresponsibility. But should the Safe Surrender program be abandoned at the risk of replacing Baby Does with Baby TMs?

There is no way to know if the mother of Baby TM knew about the Safe Surrender law, or if she would have acted any differently had she known. Nor is there any way to know what the mother of Baby Doe would have done without the protection of the law. Nevertheless, my very subjective, and (yes, I admit it) emotional experience with these two cases tells me that the Safe Surrender law is a good law, and that we should be doing more to make people aware of it.*

* This county is one of a very few in California which have nothing posted on the internet to assist pregnant mothers contemplating abandoning a newborn.

What Would YOU Do?

2005-09-02T15:18:00.000-07:00

In California, an attorney may (but is not required to) reveal confidential information if he or she reasonably believes disclosure would prevent death or substantial bodily harm.

Over lunch the other day, my colleagues and I pondered the following hypothetical:

A client charged with kidnapping reveals he has left his victim---a small child---tied up at the bottom of a well. If this information is kept confidential, the child will perish, and your client will likely escape conviction due to the lack eyewitness identification. If the information is divulged, the child's life will be saved, and the client will likely be convicted, based on the child's identification of the client.

What would you do?

(By the way, five out of six here said save the child.)

Gamesmanship

2005-08-29T14:20:00.000-07:00

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.*

2005-08-25T11:20:00.000-07:00

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?

2005-08-23T14:57:00.000-07:00

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

2005-08-21T13:10:00.000-07:00

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.

2005-08-17T06:04:00.000-07:00

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.