Los Angeles Criminal Law Blog

Murder and the Death Penalty

Posted on: August 31, 2009 at 6:30 a.m.

Steven Anthony Jones was given the death penalty in a Los Angeles court on Friday after having been convicted of two horrific murders. Jones, who had been described in court as a killing machine had had a startlingly violent criminal record. Jones was convicted of murder in the fatal shooting of a man during a robbery of a car wash and bludgeoning a woman to death with a pick hammer while on an especially violent crime spree beginning in 2004 that stretched all the way to Arizona and included torture and rape in addition to murder. His crime spree continued well after his arrest in 2005 when Jones was also convicted of raping a prison inmate as well as torturing and attempting two Los Angeles murder others.

The death penalty is still a very real possibility for those convicted of especially violent crimes in Los Angeles. Los Angeles criminal defense attorneys regularly work hard to defend against the death penalty, but the state and prosecutors can be as aggressive on the other side. While most people convicted of murder or related offenses are given 25 years to life in prison, or life in prison without parole, the death penalty is an option for the most violent criminal offenses, including the murder of a police officer or child, or murder for pay. Defendants previously convicted of murder are also much more likely to be given the death penalty in the event that they commit another murder. Under California Penal Code, section 190.2, a premeditated murder based on the victims race, color, nationality or country of origin is also punishable by death, making certain forms of hate crimes eligible for the death penalty as well.

While the death penalty is still very much in use in Los Angeles, if you have been charged with a serious crime such as murder, you do have options. Self defense, mental capacity and false confession are all common and effective defenses against homicide charges. With your very life on the line, you need an experienced, dedicated criminal defense attorney at your side. If you or someone you know have been charged with murder, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today to begin preparing your defense.

Tagged as: jury trial defense

Murder and Los Angeles

Posted on: July 13, 2009 at 2:14 p.m.

Rory Holland, a former Biddeford, Maine mayoral candidate, has been charged with two counts of murder after a tense six-hour standoff with police that left two young men dead. Details remain unclear, but local police were summoned to Hollands home around 1:30 in the morning last Tuesday. Holland reportedly barricaded himself inside his home while Gage Greene, 19, and his brother Derek Greene, 21, lay dying in the street of gunshot wounds. Holland surrendered to SWAT members shortly after 6:15 that morning. Police accounts allege Holland shot Gage once before he shot Derek three times in the chest and torso.

Reasons for why the incident started vary, with some sources saying tensions between Holland and both Greene brothers had been simmering after an assault incident last month. Other sources believe last weeks events may have been a drug deal gone awry. Rory Holland has a history of violent criminal offenses: in his home state of Kansas, Holland was convicted of both attempted murder and assault before moving to Portland, Oregon where he was eventually convicted of assault. He ran for mayor of Biddeford last year and lost, collecting just 300 votes. Residents of Hollands South Street neighborhood say he has been terrorizing the neighborhood for years. Maine does not support the death penalty in murder cases, however, life in prison is a possibility for Holland.

In Los Angeles, murder (often referred to as homicide by Los Angeles law enforcement) is divided into several categories, each with its own penalty. First-degree murder in Los Angeles is killing that is willful, deliberate and premeditated, generally garnering a sentence of either death, or 25 years to life in a state prison. Second degree murder is also the willful intent to kill or seriously injure someone, but not in a premeditated manner with a typical sentence of 15 years to life in prison for a conviction.

Los Angeles criminal defense attorneys are necessary when facing murder charges. A public defender will treat you as one of a hundred people they have to defend, but a private Los Angeles criminal defense attorney will give you the attention you need and deserve.

If you have been charged with murder in Los Angeles, you need an experienced criminal defense attorney to defend you. With so much on the line, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today. Our combined 50 years of courtroom experience in criminal defense will ensure the best possible outcome for you.

Tagged as: jury trial defense

Los Angeles Gang Violence

Posted on: June 26, 2009 at 1:04 p.m.

The Los Angeles Police Department is closing in on members of both the 18th Street gang and Mexican Mafia gang after a 2007 attack left a seven-week-old infant dead. According to police, members of the 18th Street gang were attempting to attack a street vendor who had refused to pay them rent to operate his small business in the gangs territory. The street vendor survived multiple gunshot wounds to the chest while a single stray bullet pierced the infants heart as he sat sleeping in a nearby stroller, killing him instantly. Even other gang members were appalled, with members of the notorious Mexican Mafia allegedly demanding that those responsible for the infants death be punished.
According to Los Angeles police documents, 18th Street gang members tried to take matters into their own hands by luring the shooter to Mexico on the pretense of protecting him from Los Angeles investigators. Once across the border, the shooter (whose identity is being kept secret as he is aiding investigators in the case) was allegedly strangled and left for dead. When he regained consciousness, he called family members in the area and was eventually arrested by Los Angeles investigators. He is now cooperating with both Los Angeles and federal law enforcement as they pursue his former gang.
Gang violence has long been a problem in Los Angeles, and law enforcement investigates and prosecutes gang-related crimes heavily. Criminal charges such as weapons possession, drug charges and murder take on a whole new level of scrutiny when Los Angeles police label them as gang-related, leading to much more severe punishments. Longer jail sentences are handed down in the case of a conviction and those convicted of gang-related crimes are also forced to register with Los Angeles authorities as a gang member. Whether or not that affiliation is true or continues after a conviction, it is extremely difficult to make that association go away.

If you have been charged with a gang-related crime, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today. Their combined 50 years of courtroom experience in criminal defense will fight for you.

Tagged as: gang allegations, jury trial defense

Los Angeles Assault and Triumph the Insult Comic Dog

Posted on: June 22, 2009 at 7 a.m.

A Los Angeles assault case has left the voice behind Conan O'Brien's Triumph the Insult Comic Dog in an embarassing situation.

In assault is serious and is considered a violent crime. It is defined as committing (or threatening to commit) harm, force, or unwanted or offensive contact against another person. According to Los Angeles laws, you can assault someone without actually physically harming them. If the person is reasonably afraid that you were going to harm them, or if you are guilty of intending to physically harm them, you can be charged with a assault.

The verdict in an assault case depends on the prosecuting attorney being able to prove your ability to commit the assault as well as the intention to harm. Assault can range from inappropriate touching or intruding on another persons space to aggravated assault with a deadly weapon. Los Angeles criminal defense attorneys are in court on a regular basis, defending people of assault charges stemming from various situations: domestic disputes; arguments at a sporting event; a fight at school and more.

Comedian Robert Schimmel was arrested in April of this year in his Los Angeles area home for suspicion of beating his wife. Schimmel was booked for investigation of spousal assault. However, his wife did not pressed charges against him and without her cooperation, there was not enough evidence to continue with the case. As a result, the assault charges against him were dropped. In the past, Schimmel has been a guest on Howard Sterns radio show as well as Conan OBriens late-night television show.

A assault is broken into two categories: simple assault or aggravated assault. Simple assault is the attempt and ability to injure another person. Simple assault usually results in fines up to $1,000 and jail time up to six months.

Aggravated assault is an illegal attack on someone with the intention of inflicting serious injury. This type of assault often involves a dangerous or deadly weapon, but need not necessarily result in actual bodily harm, only the intent of committing serious injury, the presence of a weapon, and the possibility of serious injury occurring if the attack were completed.

The results of a assault conviction can include jail, fines and restitution, parole, counseling, and a lasting mark on your criminal record. Assault can be a felony charge, which is oftentimes the case when assault is committed against a law enforcement officer. It can also be a misdemeanor charge.

If you have been charged with a serious criminal offense, do not hesitate to call Kestenbaum, Eisner & Gorin, LLP at (877) 781-1570. Our knowledgeable legal team can evaluate your case and advise you of your legal options.

Tagged as: jury trial defense

Los Angeles Murder and the Statute of Limitations

Posted on: June 15, 2009 at 10:20 a.m.

Los Angeles violent crimes can often be a bit of a spectacle, in part because the city has a flair for the dramatic. Los Angeles violent crime defense attorneys can often find their name in newspapers as a result of their clients' alleged actions. Take for example a recent "cold case" involving the LAPD's finest.
Veteran Los Angeles Police Department detective Stephanie Lazarus found out the hard way that there is no statute of limitations on certain violent crimes, such as murder cases. For many Los Angeles violent crimes, a statute of limitations exists that places time constraints on sending a case to trial, meaning that from the time a crime happens, detectives and prosecutors have only a specified amount of time before they can bring a suspect to trial. Medical malpractice cases, for example have a statute of limitations of just three years. But murder, as well as the embezzlement of public funds, have no time limits and charges can be brought against a suspect at any time that investigators feel they have enough evidence.
Detective Stephanie Lazarus had made a name for herself in Los Angeles by tracking stolen artwork and hunting down art forgeries. In 1986, two years after Lazarus had joined the Los Angeles Police Department, Sherri Rasmussen, the wife of one of Lazarus former boyfriends, was found beaten and shot to death in her Van Nuys apartment. Investigators at the time noted that Lazarus had been involved with Rasmussens husband, but believed a string of robberies in the neighborhood had actually led to her death. Rasmussens husband, John Ruetten, had allegedly broken off his relationship with Lazarus and soon after started dating Rasmussen. Rasmussens family publicly offered a $10,000 reward for whoever could bring her killers to justice, but the thieves Los Angeles investigators believed had committed the murder were never found.
More than two decades later, Los Angeles Police investigators began reviewing Rasmussens case and noted that DNA evidence from the violent crime scene revealed that a woman besides Rasmussen had been present at the time of her killing. Just last week, an undercover investigator began trailing Lazarus, waiting for her to leave anything that might leave a saliva sample behind. He found it when she discarded a plastic utensil after eating. The DNA collected from the fork conclusively linked Lazarus to the scene of Rasmussens murder. Lazarus was arrested by homicide detectives in early June and is being held without bail. Her arraignment has not yet been scheduled. Los Angeles Police department officials do not know whether Lazarus was deliberately or accidentally overlooked by investigators back in 1986.
While many violent crimes still go unsolved, many more do eventually get resolved. New evidence may continually resurface in cases that, like Lazaruss, are decades old. New scientific developments also enables investigators to re-evaluate evidence that was previously collected and make connections they would not have been able to just a few years ago. And since more serious crimes such as murder have no statute of limitations, if investigators can gather enough evidence, they will pursue leads in cases that have long been neglected.

If you have been charged with a If you have been charged with a serious criminal offense, do not hesitate to call Kestenbaum, Eisner & Gorin at (877) 781-1570. Our knowledgeable legal team can evaluate your case and advise you of your legal options.

Tagged as: jury trial defense

Violent Crime in Canoga Park

Posted on: May 12, 2009 at 12:29 p.m.

One of the most important ways a Los Angeles criminal defense attorney can assist you is in keeping you out of prison. Violent crimes in Los Angeles are almost always prosecuted as felonies, and felonies carry automatic jail time upon conviction. Having a qualified Los Angeles criminal defense attorney who knows and understands violent crimes is vital to keeping yourself free from prison.
Canoga Park resident Hossein Shirazi was arrested by members of the Los Angeles Police Department nearly a week ago on suspicion of murdering his brother, Mohammed Reza Shirazi. Mohammed Reza Shirazi, 48, disappeared more than a year ago and while his remains have not be located, Los Angeles Police Department investigators believe Hossein Shirazi murdered him after a long and contentious dispute with his brother. Hossein Shirazi, 34, is currently being held in prison on $1 million bail while Los Angeles police look for more answers. Mohammed Reza Shirazi was last seen on April 24, 2008. Three weeks later, his family reported him missing to Los Angeles police and hired a private investigator 10 months later to further look into his disappearance. During questioning of the Shirazi family and relatives, the private investigator received information that led him to believe Mohammed Reza Shirazi had been the victim of a violent crime. Whatever that critical piece of information was, Los Angeles Police were not aware of it until the private investigator hired by the Shirazi family alerted them. Los Angeles investigators believe Mohammed Reza Shirazi met a violent end at the hands of his brother Hossein Shirazi nearly 13 months ago when he first disappeared and are still searching for the victims remains.
Violent crimes are stringently prosecuted in Los Angeles, and with good reason. Violent crimes are almost always felony criminal offenses and encompass a wide range of crimes including murder, manslaughter, domestic violence, carjacking, assault, robbery, drive by shootings and possession of illegal firearms. In the case of Hossein Shirazi, assuming Los Angeles investigators find enough evidence to charge him, being charged with a violent crime such as murder or manslaughter in Los Angeles will depend on whether or not the prosecution can prove premeditation. A murder charge is contingent upon premeditation while manslaughter is not. In general, manslaughter is a violent crime that typically happens in the heat of passion, while murder is usually planned out beforehand. The punishment in Los Angeles for a violent crime like murder is at 15 years to life in prison, while sentencing for manslaughter typically is between three and 11 years in prison. With such a long potential prison term, the best thing you can do if you find yourself being charged with a violent crime is find an experienced criminal defense attorney right away.

Call the attorneys at Kestenbaum, Eisner & Gorin, LLP today. Their combined 50 years of experience in defending people charged with violent crimes will fight hard for your freedom.

Tagged as: jury trial defense

Involuntary Manslaughter in Los Angeles

Posted on: May 12, 2009 at 12:23 p.m.

Involuntary manslaughter is a crime in Los Angeles that people don't quite understand. Los Angeles criminal defense attorney represent countless people who are facing involuntary manslaughter charges.
For example, John Steven Burgess, of Los Angeles, pleaded guilty this past Wednesday to involuntary manslaughter and concealing his victims body in a Los Angeles Court. Burgess, a convicted sex offender, is currently serving a three-year sentence for failing to register with local authorities as a sex offender. Police have been investigating Burgess for nearly two years in relation to the disappearance of 19 year-old college student Donna Jou of Rancho Santa Margarita. Jou was last seen on June 23,2007 and police and Jous family had long believed Burgess was connected to her disappearance, but Burgess refused to speak to investigators about her. While it remains unclear why Burgess suddenly decided to talk to authorities about Jou, he admitted to meeting her through the website Craigslist.org. Witnesses reported having seen Jou enter Burgess rented home in the Palms section of Los Angeles. Burgess admitted to giving Jou cocaine, heroin and alcohol at a party at his home, then waking up the next morning to find her dead. Burgess told police he panicked and used his sailboat to dump her body in the ocean. While Burgess told police where he had dumped the victims remains, several searches conducted by authorities have failed to find any traces of her. Burgess is to be sentenced May 18th in Los Angeles Superior Court.
From a legal standpoint, there are several types of murder, with the differences between them usually hinging on the defendants intent. >Involuntary manslaughter is especially tricky because it involves the death of someone that is unintentional and is usually the result of reckless, negligent behavior, or the byproduct of some other action. Being convicted of involuntary manslaughter can land you in prison for a minimum or two years and a maximum of four. In Burgess case, his best defense is that he did not intend for Jou to die from the drugs he gave her. Since he already pleaded guilty to involuntary manslaughter charges, the prosecution cannot try to charge him with murder, which could have put him in a state prison for 15 years to life. Facing involuntary manslaughter charges is a serious and complicated legal matter that can change your life-do not do it alone.
Call the attorneys at Kestenbaum, Eisner & Gorin, LLP today to see what your legal options are and begin preparing your defense.

Tagged as: jury trial defense

Violent Crimes in Los Angeles 2

Posted on: May 6, 2009 at 6:41 a.m.

Los Angeles violent crime defense attorneys have to battle difficult laws, difficult judges and possibly juries who usually favor locking up violent offenders. The media is rarely kind to anyone accused of a violent crime in Los Angeles, and so it's up to Los Angeles criminal defense attorneys to stand for the accused. When police investigate violent crimes, they take many precautions, but act aggressively. Only a skilled Los Angeles criminal defense attorney understands police investigations well enough to be able to provide qualified legal defense services for those charged with a violent crime offense.

Recently, members of the Los Angeles Police Department have arrested three people in connection with a seemingly random shooting at a taco truck near Los Angeles International Airport last Wednesday. While the suspects names have not yet been released, witnesses say that a man with a rifle opened fire on people eating near the truck, killing 59 year-old Amador Cendejas-Cortes of Los Angeles and wounding five others. Among those wounded during the violent crime are two unidentified men, a woman and two young boys one just 12 years old. The violent crime occurred in Lennox, an unincorporated area not far from LAX. The possible causes or motives for the shooting, however, are currently unknown and being investigated by Los Angeles police.

Since the exact nature of the violent crime is still under investigation, no formal charges have been filed as of yet. It is likely that the shooter will be charged with either first- or second-degree murder, as well as several charges of assault with a firearm, all of which should be classified as felony offenses. A conviction on a first-degree murder charge in California would likely reap 25 years to life in a state prison, while a conviction of second-degree murder would be sentenced to 15 years to life in prison.

Each count of assault with a firearm would also likely add to the defendants total sentence, making it highly possible that the defendant, whoever it is, may never leave the state prison system once he enters it-if he is convicted. It is not clear what roles, if any, the two people police arrested in addition to the shooter played in the shooting and what their charges are likely to be. Murder and assault are gravely serious crimes that could land you in prison without hope of ever getting out.

If you have been charged with a violent crime, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today to talk to someone about every legal option available to you.

Tagged as: jury trial defense

Hate Crimes & Murder in Los Angeles

Posted on: April 20, 2009 at 7:02 a.m.

Violent crimes in Los Angeles require a sophisticated approach to by defense attorneys. The Los Angeles criminal defense attorneysat Kestenbaum, Eisner & Gorin have defended numerous violent crimes, including those involving "hate crime" status. Hate crimes add penalties to crimes, and make defending such crimes even more difficult.

An ongoing murder case in Greely, Colorado is attracting attention as one of the first murders to be prosecuted as a hate crime. Colorado is currently one of 11 states in which crimes related to gender identity are classified as hate crimes and carry enhanced sentencing penalties for convictions. Allen Andrade, 32, is currently facing life in prison after bludgeoning to death the transgendered Angie Zapata. Zapata was born a male and still legally named Justin when she met Andrade online in 2008. After several days of online communication, Zapata and Andrade agreed to meet in person. They had spent a few days together in Zapatas apartment when Andrade accompanied Zapata to Greely municipal court to take care of a traffic ticket. The traffic ticket was issued in the name of Justin Zapata and that, prosecutors argue, is when Andrade discovered that Zapata was biologically male. Andrades defense attorney insists that Andrade flew into a uncontrolled rage upon discovering Zapatas true biological identity and killed Zapata, using both his fists and a fire extinguisher.

The prosecution counters that Andrade knew of Zapatas gender identity for a full 36 hours and planned to kill Zapata during that time. Andrade has admitted to killing Zapata and made several disparaging comments about homosexuality and the transgendered. In Colorado, the hate crimes statutes would add up to three additional years in prison to Andrades sentence if convicted. National gay rights groups have followed this trial closely, saying it is the first trial in which hate crimes statutes have been used to prosecute the murder of a transgendered person. California is one of the 11 states with hate crimes laws protecting gender identities. Gender is defined by both the victims actual sex or the defendants perception of the victims sex. Sexual orientation is also legally protected and both involve enhanced sentencing if convicted.

If you have been accused of a hate crime or a violent crime, contact the Los Angeles criminal defense attorneys at Kestenbaum, Eisner & Gorin, LLP today. Their combined 50 years of courtroom experience will fight hard to defend you.

Tagged as: jury trial defense

Accessory to Crime in Los Angeles

Posted on: April 6, 2009 at 8:50 a.m.

One are of the law that Los Angeles criminal defense lawyers find difficult to educate people about is accessory. Being an accessory to a crime, whether a violent crime, a theft crime or other type, in Los Angeles can happen without much effort. If the police want to charge you, they may not have too difficult of a time doing so, and without a qualified Los Angeles criminal defense lawyer by your side, you may be left at the mercy of the Los Angeles Police Department.

You do not have to actually commit a crime in order to be implicated in it. New Orleans Saints linebacker Jonathan Vilma is finding this out the hard way as a New York-area condominium he owns has recently become the epicenter of a double murder investigation. Police investigating the murders believe two Liberian immigrants, Ansu Keita and Sekou Sakor, were shot in the head while at Vilmas condominium in late March for their connection with a "black paper" scheme. Police have stated that Vilma is not in any way considered a suspect in the murders and is giving investigators information as to who may have had access to his property. Vilma himself had not been in the condominium since January of 2008 and had been trying to sell the property. Only Vilmas real estate agent and a few members of the football players family are believed to have had access to the property.

Neighbors reported hearing gunshots late one night, but by the time they arrived at 10 oclock the next morning, New York City police had already found the bodies at separate sites in Queens and Brooklyn.

For a person to be charged as an accessory to any crime, investigators must prove that a suspect knew that a crime had been, or would be, committed. Most jurisdictions distinguish this from an accomplice, who is generally present at the time the crime is committed and participates in some capacity.

In Los Angeles, an accessory to a crime may help or encourage the actual criminal in some way, fail to report the crime to law enforcement, or attempt to help the criminal conceal the crime. In Vilmas case, for example, if he had known a crime was going to be committed and did nothing to stop it (or report it to the police after the fact), he could be considered an accessory to the murders.

Since Vilma had not been to the condominium in over a year and was trying to sell it, this is most likely not the case. Being charged as an accessory to a crime is still a serious offense and punishments will vary depending on the crime committed and the severity of the damage. People can be accessories to murder, robberies, arson, blackmail or any number of criminal offenses. In most cases, someone charged as an accessory to a crime can be given the same punishment as the person who actually committed the crime. For some people, getting caught up in bad situations is an all-too ugly reality. Do not think that just because you didnt actually commit a criminal offense that you are safe.

If you were in any way involved in a crime, you need a strong Los Angeles criminal defense attorney to fight for you. If you or someone you know has been accused of being an accessory to a crime, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today. Their combined 50 years of courtroom experience could help you avoid a criminal conviction.

Tagged as: california criminal laws, counterfeit goods pc 350, jury trial defense

Violent Crimes in Los Angeles

Posted on: March 23, 2009 at 8:40 a.m.

Violent crimes in Los Angeles are charged as felonies and carry with them heavy consequences in Los Angeles. Los Angeles violent crime defense lawyers regularly counsel clients through investigations, trials and all manner of legal proceedings.

Being charged with a violent criminal offense in Los Angeles is a serious, often frightening experience. Since the penalties for a violent crime can be so severe, a conviction for a violent criminal offense could completely change your life.

What exactly is considered a violent crime? In the simplest terms, a violent crime is a criminal act committed with the use of violence (obviously), force or threats. Violent crimes can occur with or without the use of a weapon. Victims of violent crimes typically end up either severely injured or dead. Violent crimes are usually classified as felonies (especially if a weapon is involved) and examples can include: murder, manslaughter, attempted murder, robbery, domestic violence, rape, sexual assault, hate crimes, assault and/or battery, aggravated assault, and carjacking.

For the most serious violent crimes, such as murder, a minimum sentence would typically be 25 years in prison for a conviction while the maximum sentence imposed would be life in prison, or the death penalty since it is legal in Los Angeles. Penalties for all types of violent crimes vary depending on the individual circumstances. For instance, assault with a fist is typically punished less harshly than would be assault with a baseball bat or a knife. Penalties for robbery can be anything from two to nine years in a state prison for a conviction, while a conviction for carjacking can incur a prison sentence of between three and nine years.

Violent crimes convictions in Los Angeles have the added dimension of the inclusion of Californias "Three Strikes Law." This law has the effect of enhancing punishments depending on the prior criminal record of a defendant, sometimes doubling a prison sentence if convicted of a second or third crime. With two or more prior felony convictions, a defendant can also face the possibility of life in prison even if the crime they are currently on trial for would not otherwise merit such a punishment.

When you find yourself in a situation where the rest of your life could be spent in prison, you need an experienced criminal defense attorney. If you have been accused of a violent crime, call the attorneys at Kestenbaum, Eisner & Gorin, LLP immediately. Their combined 50 years of experience in criminal defense has taught them the importance of details in each individual case and how those details can possibly save you from life in prison.

Tagged as: jury trial defense

Assault vs. Battery

Posted on: March 17, 2009 at 2:25 p.m.

Los Angeles criminal defense attorneys get asked a variety of questions by people who want to learn about the law. There are many crimes in Los Angeles that seem similar, but that quite different. Our Los Angeles criminal defense attorneys represent numerous clients charged with assault and/or battery, but who often don't know the difference between the two.

Most people hear the words "assault and battery" and think they know what that means physically attacking someone. That definition is really only partially true, especially in Los Angeles.

Historically, assault has been defined as the threat of violence coupled with the ability to carry out that threat, whether that threat is made verbally or through a persons actions. Battery has more often been seen as the actual act of violence against someone. While many states today do not make much of a distinction between assault and battery, in Los Angeles they are seen as separate crimes and charged and punished accordingly.

Simple assault, which includes both threats and attempts to cause injury to another person, is almost always a misdemeanor charge. Simple battery, the willful and unlawful use of force or violence against another person is classified either as a misdemeanor or felony offense, depending on the circumstances and the amount of damage caused. Assault and battery both serve as types of "umbrella" classifications that include other criminal offenses.

Sexual assault and battery offenses require both threat of unwanted sexual contact as well as physical contact that was not consented to by the victim. This offense in particular is very serious as not only can you be punished by possible jail time if convicted, but you may also be required to register with Californias sex offender registry for life.

Assault with a deadly weapon and assault with a firearm also include the threat or attempt of violence. The difference here is that a deadly weapon can be almost anything but a firearm, but both a firearm and a deadly weapon are likely to produce great bodily harm. Either can be charged as a misdemeanor or a felony, but a conviction for an assault with a deadly weapon charge will count as a "strike" under Californias "Three Strikes" laws. Battery with injury is an act of physical violence that injures another person and can be a misdemeanor or a felony. Domestic violence that results in an injury is also classified as battery. Mayhem (disabling or disfiguring a victims body or part of their body) and torture (causing cruel or extreme pain or suffering by inflicting great bodily injury) are also in the group of offenses under battery, and are usually charged as felonies.

Assault and/or battery charges are taken very seriously in Los Angeles and the punishments can be severe: county or state prison time, a permanent criminal record, significant monetary fines, probation, parole, mandatory anger management classes, losing the right to own a deadly weapon, the lifetime loss of eligibility for a California drivers license, and the loss of eligibility for certain jobs. Each assault or battery case is different, and each should be treated with special care. An experienced criminal defense attorney will know what details to look for in order to get the best possible outcome for you. If you have been charged with an assault or battery offense, call the Los Angeles criminal defense attorneys at Kestenbaum, Eisner & Gorin, LLP right away to begin preparing your defense.

Tagged as: jury trial defense

Gang Activity and the Death Penalty

Posted on: January 14, 2009 at 7:23 a.m.

Los Angeles criminal defense attorneys understand that when criminal activity, especially violent criminal activity, is coupled with gang activity, the resulting penalty can be severe. For most Los Angeles criminal defense attorneys, part of the defense strategy when defending someone accused of a gang-related crime is to debunk the "gang" accusation.

For years, authorities say, McGhee waged a campaign of terror in the northeastern part of Los Angeles. A shot-caller for a long-entrenched gang, he hunted rivals but sometimes killed indiscriminately, boasting in rap lyrics about the pleasure he felt in taking life.

He taunted law enforcement and led a sophisticated ambush that ensnared two Los Angeles Police Department officers in a barrage of gunfire. While locked up, he incited jail riots and assaulted guards, responding to one attack in which an officer survived by saying, "Next time I'll have to stab him." On Friday, McGhee, once one of the nation's most sought-after fugitives, sat shackled in orange jailhouse scrubs as Superior Court Judge Robert J. Perry sentenced him to death for the murder of three people.

"He is a committed killer and an obvious danger to society," Perry said. Police and prosecutors described McGhee as a thrill killer who was among the most feared members of the Toonerville gang, which was formed in the 1950s and claims as its turf a largely middle class area north of Los Feliz Boulevard between San Fernando Road and the Los Angeles River.

Violent felony convictions carry serious jail-time, and the "time off for good behavior" line you hear on television is rarely a reality. Los Angeles criminal defense attorneys, such as the attorneys at Kestenbaum, Eisner & Gorin, defend those accused of violent crimes every day. Violent crimes are criminal acts that involve the use or threat of violence. In most cases, violence is used as a means to an end, especially during crimes such as rape and robbery. During the commission of a violent crime, the offender may or may not use a weapon. If the offender uses a weapon while committing a violent crime, the offense will usually be classified as felony.

Kestenbaum, Eisner & Gorin, LLP is a criminal defense law firm that has been helping clients throughout Southern California contest their criminal charges and obtain superior results for years. Our skilled violent crimes attorneys have over 50 years of collective court room experience and we are fully prepared to undertake our clients cases. When we work with our clients, we do everything possible to make sure that they receive the attention, resources, and dedicated legal counsel that they deserve.

Tagged as: gang allegations, jury trial defense

Holiday Season Homicides in LA

Posted on: January 5, 2009 at 7 a.m.

The holiday season can be a stressful time for people, especially when the economy is bad and people are depressed. Los Angeles violent crime defense attorneys often see a rise in certain types of violent activities, as people are morbidly affected by the pressure to spend money they don't have, or are depressed by a lack of family. This holiday season saw two major tragic events define the city.

Los Angeles rang in the new year with at least five homicides and a fatal officer-involved shooting. Vannaly Tim, 24, and her boyfriend, Sarith Em, 25, were shot outside their Signal Hill-area apartment.

Em, an Iraq war veteran, and Tim went outside to move a car to avoid a parking ticket, and Tim's younger sister, Debi So, heard six gunshots, the Long Beach Press-Telegram reported.

At first, So thought the shots were part of a New Year's Eve celebration, but she later found Em shot several times in the back and lying in the street on top of Tim. One of the bullets went through Em and lodged in Tim's chest.

In Panorama City, Los Angeles police fatally shot 41-year-old Saul Soriano, had been threatening his family with a gun and firing shots into the air early Thursday after his son complained about his drinking.

On Christmas Eve, a recently divorced 45-year-old man ran amok with guns and a homemade flame-thrower, killing his ex-wife and eight other members of her family, before killing himself. Soriano had been confronted by a son about his drinking, Soriano's sister-in-law, Iris Zuniga, told NBC4. After the shooting, officers searching his car found an improvised grenade that was almost certainly homemade, Romero said, adding that it was safely detonated in place by a bomb squad.

Also during the holiday week:

  • In Pomona, Adrienne Davidson, 46, woman told deputies she fatally shot her husband and surrendered at the sheriff's Walnut station.

  • At a party in the 3900 block of Avenida del Sol, off Coldwater Canyon Avenue, a young man was fatally shot at close range, according to Los Angeles police at the North Hollywood Station.

  • In the Pico-Union district just west of downtown, a man was fatally stabbed in the 1200 block of West Eighth Street.

Violent crimes affect individuals, families and communities, and effective Los Angeles violent crime defense attorneys know the importance of protecting the accused from succumbing to the negative emotions surrounding such crimes. People are often deranged, depressed and just lost mentally, which often leads them to commit crimes they wouldn't ordinarily commit the other 51 weeks of the year. When holiday parties include alcohol in the mix of circumstances, it makes for that many more problems.

If you or a loved one has been accused of a violent crime, contact a qualified and experienced Los Angeles violent crime defense attorney today!

Tagged as: jury trial defense

Actor Involved in Murder and Burglary

Posted on: November 17, 2008 at 11:11 a.m.

An accused low-level mob associate who was convicted earlier this year of killing an off-duty police officer during a botched burglary was sentenced to life in prison without parole. The co-defendant, a former "Sopranos" actor, goes on trial this week.
The murder was committed two years ago, but the lead defendant wasn't convicted of the violent crime until October. The two men were accused of braking into a Bronx apartment to steal prescription drugs after a night of drinking at a strip club. The off-duty officer cam to investigate and was shot in the heart. The off-duty officer fired back and wounded both men.
The actor, Lillo Brancato, was the star of Robert DeNiro's "A Bronx Tale" and has had many parts in movies since then. Over the years, many celebrities have faced various criminal charges and needed experienced violent crime defense attorneys. Criminal defense attorneys who work on high-profile violent crime trials, such as the OJ Simpson trial and the Scott Peterson murder, know the challenges of defending someone whose name is widely known.
In Los Angeles, violent crime defense attorneys regularly defend celebrities and well-known personalities in all manner of offenses, including DUI, theft, violent crime, domestic violence and drugs.
As Former Los Angeles Prosecutors, our firm specializes in aggressive Criminal Defense work in Southern California Courts - in the area of Violent Crimes. We promise that only the three firm partners work on your case, rather than young attorneys, contract lawyers, or case managers. Our law firm has been recognized as a Top 5% U.S. Law Firm based on peer reviews from other attorneys, judges, and prosecutors, in the area of legal ethics, professionalism, and judgment. We have more than 50 years experience in defending all criminal matters.

Tagged as: counterfeit goods pc 350, jury trial defense

Resisting Arrest v. Fighting with the Police: California Penal Code Sections 148(a) and 69 Discussion

Posted on: November 17, 2008 at 2:24 a.m.

Penal Code Section 69 and 148(a) both make it unlawful to fail to follow lawful police orders. The former is a felony which carries the possibility of prison, while the latter is a misdemeanor that usually results in a defendant having to perform community service. The big difference between the criminal charges, as the case below demonstrates, is the use of force by a defendant.

The Court of Appeals ruled in a recent case that a Defendant who claimed he resisted police officers because their efforts to subdue him during an arrest caused him pain was entitled to an alternate jury instruction on a lesser charge that did not involve use of force or violence (Penal Code Section 148) The court concluded that the trial judge must instruct on both theories because a jury could reasonably have found defendant guilty of the lesser offense if it believed his testimony. The Appeals Court thus conditionally reversed the convictions for forcibly resisting the officers (Penal Code Section 69).

Defendant was apprehended in November of 2006 by officers of the Los Angeles Police Department who were responding to a report of a prowler in San Pedro. After a citizen told the first officer on the scene that a man matching the prowler

Tagged as: jury trial defense, motion to dismiss unlawful police search

Gang Violence and Los Angeles

Posted on: October 13, 2008 at 9:59 a.m.

One of the longest running stories in Los Angeles is the influence and level of violence of gangs. Gang activity has cost the lives of many Angelinos, and the high profile murders and violent crimes are heavily prosecuted by the district attorney in hopes of being able to stem the tide of violence.

Recently a Los Angeles gang member was extradited from Mexico to face charges of murdering a 12-year-old boy a decade ago has been sentenced to life in prison without chance of parole. A judge rejected the man's request for a new trial and sentenced him to life plus an additional term of 145 years to life. A jury convicted him in August of murder and attempted murder. Although he denied he was the gang member whose stray bullet struck Steven Morales in the head in 1998 as the boy played baseball in front of his Highland Park home, the judge showed no leniency.

More than 1,400 criminal street gangs exist in Los Angeles County. Gang crimes

Tagged as: gang allegations, jury trial defense

NFL Running Back Sentenced in L.A. to Prison

Posted on: October 7, 2008 at 2:38 p.m.

While some were waiting for news on former USC and NFL great OJ Simpson's trial to end, another former college star who played in the NFL was sentenced in Los Angeles. Former NFL running back Lawrence Phillips was sentenced Friday to 10 years in prison, two years after he was convicted of assault with a deadly weapon.

The sentencing was repeatedly delayed while Phillips fought to withdraw a guilty plea in a domestic abuse case that could have led to a stiffer sentence. The crime would be considered a first strike under California's "three strikes" law. If the guilty plea stood, it means the car assault would be a second strike carrying a potential sentence of 20 years, prosecutors said.

The 33-year-old former Nebraska running back has been jailed for assault since August 2005, when he drove onto a field near Los Angeles Memorial Coliseum and his car struck three boys, ages 14 and 15, and a 19-year-old man, who suffered cuts and bruises. The car narrowly missed four other people, prosecutor Todd Hicks. Phillips was allegedly upset after losing a pickup football game to the youths and accused them of stealing some of his possessions.

Assault with a deadly weapon is the act of menacing another person with a weapon that could cause death. This is usually a gun, but it doesn't need to be. This form of assault does not include the action of using force, called battery, but it often leads to assault and battery charges. Understandably, stiff penalties are involved. Interpretation of assault versus battery with a deadly weapon can depend on local statutes, which makes researching the penalties in your region essential. Knowledgeable criminal attorneys in Los Angeles can assist those facing all manner of assault and/or battery charges.

There are many defenses to charges of assault, and contacting an attorney as soon as charges are filed will allow evidence to be evaluated and witnesses questioned while everything is still fresh. A skillful Los Angeles criminal defense lawyer can help you get through this complicated process.

Tagged as: california criminal laws, jury trial defense

California Murder Defense Law

Posted on: September 20, 2008 at 12:05 p.m.

The criminal defense of murder cases in Southern California is typically handled by very experienced attorneys, as the prosecution and the defense face high stakes. The prosecutor attempts to vindicate the interests of the decedent and his family, while the defense lawyer is facing the possibility of his client receiving life in prison.

California criminal law provides a person may be found guilty of murder, under an implied malice theory. In other words, when the defendant has no intent to kill a decedent, he may be found guilty of murder if his conduct is found reckless enough by a jury. For example, criminal prosecution has extended the use of the implied malice theory of murder (ie. where to is no express intent to kill the deceased) to argue that a defendant is guilty of murder, when death is caused, where the defendant's reckless conduct was committed during the course of drunk-driving, street racing, evading the police during a pursuit, interfering with railroad cars, gang crimes that begin with a simple fight, and playing russian roulette with a firearm.

A recent case dealt with the theory of implied malice in murder cases, and addressed a situation where a defendant does not know a woman is pregnant, can he be held responsible for the death of the fetus as a result of his violent actions upon the mother? While the knee jerk societal response is "of course he should be," the defendant's response is -- "I did not know of its existence and should not be found guilty."

A criminal court decision provided guidance for Los Angeles criminal lawyers specializing in the defense of murder cases. The Appeals Court rejected a defendant's argument that he was not guilty of murder for killing an unborn child because he had strangled

Tagged as: california criminal laws, jury trial defense

Bail and Murder

Posted on: September 10, 2008 at 9:35 a.m.

The primary suspect in a murder this July which shocked the city of Los Angeles is being held without bail in a separate matter. James Fayed of Moorpark is charged with operating an unlicensed money-transmitting business, but a Los Angeles federal judge refused to review his no-bail status in the case, saying he was concerned that Fayed eventually might be charged with his wife's murder. A federal judge has refused to consider bail for the estranged husband of a woman who was stabbed to death in a parking garage in upscale Century City.

Prosecutors say Fayed's credit card was used to rent an apparent getaway a car seen after the slaying of his wife, Pamela, in July. They call Fayed the "primary suspect."

Fayed's attorney says the card belonged to Fayed's business and others had access to it. Werksman also says it's unfair to keep Fayed locked up on the chance of a murder charge.

It can often be difficult for a Los Angeles criminal attorney to obtain bail for his/her client in a murder trial. If the crime is particularly gruesome or high profile, or if the defendant has the ability to flee the state/country easily, then bail will be that much more difficult to procure.

For high-profile cases, such as the murder trial of Phil Spector, defendants will have bail set at an extremely high dollar amount. In the case of Spector, it was set at $1 million.

For many states the regulations on the bail industry are found in multiple state codes. In the case of California, the regulatory body is the Insurance Department, but the bail industry is also subject to California's Penal Code. There are two ways to post bail. First, "cash" bail may be posted with the custodial agency to cover the entire amount of the bail. At the end of the case, if bail is exonerated, the defendant will receive a check for the entire amount posted (takes about 8-10 weeks). Second, a "bond" through a bail company may be posted. A defendant pays about 10% of the entire amount to a bail company, which puts up the entire bail amount through a bond. If bail is exonerated, the 10% is not returned to the defendant because this is the fee he paid to the bail company to post bail on his behalf (like an insurance premium). Although the standard bail fee is 10%, there are certain circumstances where clients can qualify for an 8% premium. The bond company requires that the attorney has already been retained before qualifying the individual for a reduction.

Tagged as: bail and release, jury trial defense

Violent Crimes Against the Homeless: Hard to Prosecute

Posted on: September 10, 2008 at 9:32 a.m.

Los Angeles police were investigating Sunday the fatal stabbing of a homeless man behind a liquor store in Woodland Hills. The victim was a transient who was stabbed multiple times near the back door of a liquor store.

Violent crime investigations involve a variety of information gathering tactics, including interviewing victims, interviewing possible witnesses and combing the crime scene. When a violent crime is committed against a homeless person however, it makes gather evidence incredibly difficult. If the violent crime committed is murder, it makes the crime even more difficult to investigate and prosecute. For police and detectives investigating violent crimes, if the victim has no home or have a community that can support the investigation, it makes things difficult.

Violent crime investigations include a behavioral analysis, which is done to provide behavioral based investigative and operational support by applying case experience, research, and training to complex and time-sensitive crimes, typically involving acts or threats of violence.

Law enforcement investigators may also enter certain violent crime information into a database for comparison and possible matches with unsolved cases. Additionally, criteria cases with an unidentified offender may be submitted for database comparison.

Tagged as: jury trial defense

High Profile Murders in Los Angeles

Posted on: September 9, 2008 at 1:09 p.m.

Recent murder trials which have received a great deal of press coverage are bringing a focus back to violent crimes in Los Angeles.

A man found guilty of slaying his girlfriend and leaving her to rot in a backyard shed was sentenced on September 8th to 15 years to life in prison. A jury convicted the man of second-degree murder in December for killing his girlfriend, stuffing her into a box and leaving her to decompose in a shed in August 2006, the hottest summer on record in the San Fernando Valley.

Also on September 8th, a death sentence was handed down for an Azusa gang member convicted of murdering four people between 1999 and 2004. Los Angeles Superior Court Judge Kathleen Kennedy rejected an automatic motion to reduce Ralph Flores' punishment to life in prison without the possibility of parole for three of the killings, and also denied the Los Angeles criminal defense attorney's request for a new trial.

Los Angeles criminal defense attorneys know that California

Tagged as: jury trial defense

Falsely Accused of Murder: Los Angeles Men Freed after 4 Months in Custody - Wrong Identification to Blame Says Prosecutor

Posted on: September 6, 2008 at 10:58 p.m.

Two Hollywood men who spent nearly four months in a Los Angeles County jail walked out free after a murder case against them was dropped, in Los Angeles, California. The men, both 20, had been charged with murder and attempted murder in a drive-by gang shooting in April that left one man dead and another injured. "This matter is dismissed in the interest of justice," Superior Court Commissioner Henry J. Hall said Friday afternoon, prompting applause by family members sitting in the courtroom.

The men, still wearing their blue jumpsuits, left the courthouse in downtown Los Angeles about 6:30 p.m. Relatives yelled, clapped and rushed toward them. "I feel like a million bucks," said one, "I knew I was wrongfully accused. I just had to wait it out."

The decedent Heriberto Osorio, 19, was killed on North Oxford Avenue in Hollywood early on the morning of April 20. Police arrested the two suspect about an hour after the shooting, and prosecutors filed charges a few days later. If convicted, they could have faced life in prison. The Los Angeles Deputy District Attorney on the case said the men matched the physical description given by witnesses and were in the immediate area of the shooting shortly after it occurred. Witnesses also identified both men in a field show-up, singling out one of the men as the gunman. Both men had prior criminal records and police believe at least one had gang affiliations. They both are construction workers.

Defendants had denied any involvement and told police that they were at a nearby McDonald's restaurant at the time. Despite the arrests, Los Angeles police detectives discovered the possible involvement of other individuals in the shooting, according to the prosecutor. One woman has since been arrested on suspicion of aiding and abetting, but police are still searching for the gunman.

Prosecutors realized that the clock on the McDonald's camera was incorrect and that Defendants said the car they were driving was at the fast-food restaurant just minutes after the shooting. Although the McDonald's video did not show them, it did show the van -- a different vehicle than witnesses said was used in the shooting, according to the prosecutor.

Thereafter, after reviewing the case, the L.A. criminal prosecutor made a motion to dismiss the case, which was scheduled for a preliminary hearing next week. "When we put it all together . . . it became clear to me at that point there was reasonable doubt, and, in fact, it was likely they didn't commit the crime," he said. "If someone is in custody improperly, we have to release them as soon as possible."

Tagged as: jury trial defense, police misconduct

Recent Los Angeles Violent Crimes, Hate Crime Allegations (Penal Code Section 422)

Posted on: August 4, 2008 at 11:30 a.m.

A violent brawl involving four white kids, one Mexican man, alcohol and ethnic slurs ended in the death of 25-year-old Luis Ramirez and murder and assault chargers for the four whites. Violent crimes with racial overtones can often involve "hate crime" charges, which can bring heavier sentences for the accused if convicted.

In this particular instance, a fight broke out amongst the men, most of whom were drunk, wherein the four white individuals used a number of slurs which incited Mr. Ramirez. Ramirez was beaten so severely that he died in the hospital two days after he was found. Two of the young white men were charged with murder, and all will face serious jail time even though two are under the age of 18.

California Penal Code Section 422.6.(a) states

Tagged as: jury trial defense

Murder Defense: California Criminal Law Ruling

Posted on: July 31, 2008 at 11:09 p.m.

A frequent issue faced by Los Angeles criminal attorneys who defend murder cases is how the justice system deals with the killing of an accomplice. Can the defendants be charged with murder when one of their own confederates is killed unintentionally? The theory of prosecution is known as the "provocative acts" doctrine.

The California Supreme Court has agreed to determine whether two Los Angeles men whose accomplice was killed by a man they allegedly tried to rob were properly convicted of first degree murder under the

Tagged as: jury trial defense, motion to dismiss unlawful police search

Juveniles Tried as Adults Face State Prison, not Juvenile Hall

Posted on: July 25, 2008 at 12:08 p.m.

Under California criminal law and procedure, an accused who is tried as an adult is typically 18 years old or older.

Individuals under 18 typically receive far more lenient treatment in juvenile court and/or a stay in juvenile hall if they are convicted. They usually do not face the risk of county jail, or prison.

However, a severely violent crime, or habitual criminal activity may persuade a judge to try a minor as an adult, which for certain crimes could lead to life in prison. This proceeding is called a "Fitness hearing."

In Oxnard, one such case involving a violent crime, which also qualified as a hate crime, may proceed in that direction. A judge has ruled that a 14-year-old who allegedly killed a classmate who was openly gay can be tried as an adult, and if convicted this individual could receive a life sentence. The alleged killer shot they openly gay student in the head, after which the boy was pronounced brain dead and had his organs donated.

A violent crime such as this is often the kind of case a judge will consider trying a minor as an adult for, in part because there may have been some pre-meditation on the boy's part. The violence coupled with the "hate crime" aspect also puts public pressure to bring about an acceptable solution.

The Los Angeles Daily News reports that hate crimes are up 28%, and a judge/jury aware of that rise may want to punish violent offenders as a message to others. Certain violent gang activity may also cause a judge to charge a minor as an adult.

Alternatively, the DA's Office can also utilize a legislated court procedure which allows it to file directly on a juvenile in adult court, without seeking to first file a Fitness Motion in juvenile. This is referred to as a "Direct Filing." With this new California law in place, a judge's discretion is completely bypassed, and the DA's Office become the arbitrer of whether a juvenile goes to adult court. Accordingly, a juvenile faces the possibility of being housed in state prison if convicted in adult court.

Tagged as: jury trial defense, juvenile law

Jury Trial Evidence: DNA Lacks Reliability?

Posted on: July 23, 2008 at 11:34 p.m.

Criminal prosecutions in Southern California, for the most serious offenses such as murder, rape, and kidnapping, frequently rely on DNA to identify the suspect. This evidence is often hotly contested by L.A. criminal lawyers in jury trials. Besides the typical problems with collection and proper storage of DNA evidence, a frequently debated jury issue is how rare is the DNA profile obtained from the evidence (i.e. saliva, sperm or blood is recovered from clothing, skin, fingernails or other item and is then compared to suspect's DNA profile). How many people share the profile? While every person's DNA is different, the testing for court is limited to 13 locations on the DNA strand.

In court, the jury considers what are the odds another person has a profile that is similar to the defendant on trial. If the profile is not uncommon, then the defense argument goes that many other possible suspects could have deposited the sample and the results do not definitely prove that the defendant on trial is the guilty party. Of course, the prosecution will often present other evidence to support its DNA case - witness statements, defendant's own statements, lack of an alibi, etc - all that link the defendant on trial to the crime.

But what if the case is just a cold-hit DNA case? In other words, all the prosecution has is the DNA sample, to tie the Defendant to the crime. Is DNA evidence alone sufficient to link a suspect to a murder or rape scene - beyond a reasonable doubt? The following story from a local Southern California newspaper raises serious questions about DNA evidence, that the FBI apparently wanted to keep private.

The story reported that Arizone State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles. The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people. The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.

As word spread, these findings by a little-known lab worker raised questions about the accuracy of the FBI's DNA statistics and ignited a legal fight over whether the nation's genetic databases ought to be opened to wider scrutiny.

The FBI laboratory, which administers the national DNA database system, tried to stop distribution of Troyer's results and began an aggressive behind-the-scenes campaign to block similar searches elsewhere, even those ordered by courts, a Times investigation found.

At stake is the credibility of the compelling odds often cited in DNA cases, which can suggest an all but certain link between a suspect and a crime scene.

When DNA from such clues as blood or skin cells matches a suspect's genetic profile, it can seal his fate with a jury, even in the absence of other evidence. As questions arise about the reliability of ballistic, bite-mark and even fingerprint analysis, genetic evidence has emerged as the forensic gold standard, often portrayed in courtrooms as unassailable.

But DNA "matches" are not always what they appear to be. Although a person's genetic makeup is unique, his genetic profile -- just a tiny sliver of the full genome -- may not be. Siblings often share genetic markers at several locations, and even unrelated people can share some by coincidence.

No one knows precisely how rare DNA profiles are. The odds presented in court are the FBI's best estimates.

The Arizona search was, in effect, the first test of those estimates in a large state database, and the results were surprising, even to some experts.

Defense attorneys seized on the Arizona discoveries as evidence that genetic profiles match more often than the official statistics imply -- and are far from unique, as the FBI has sometimes suggested.

Lawyers seek searches

Now, lawyers around the country are asking for searches of their own state databases.

Several scientists and legal experts as well want to test the accuracy of official statistics using the nearly 6 million profiles in CODIS, the national system that includes most state and local databases.

"DNA is terrific and nobody doubts it, but because it is so powerful, any chinks in its armor ought to be made as salient and clear as possible so jurors will not be overwhelmed by the seeming certainty of it," said David Faigman, a professor at UC Hastings College of the Law, who specializes in scientific evidence.

FBI officials argue that, under their interpretation of federal law, use of CODIS is limited to criminal justice agencies. In their view, defense attorneys are allowed access to information about their specific cases, not the databases in general.

Bureau officials say critics have exaggerated or misunderstood the implications of Troyer's discoveries.

Indeed, experts generally agree that most -- but not all -- of the Arizona matches were to be expected statistically because of the unusual way Troyer searched for them.

In a typical criminal case, investigators look for matches to a specific profile. But the Arizona search looked for any matches among all the thousands of profiles in the database, greatly increasing the odds of finding them.

As a result, Thomas Callaghan, head of the FBI's CODIS unit, has dismissed Troyer's findings as "misleading" and "meaningless."

He urged authorities in several states to object to Arizona-style searches, advising them to tell courts that the probes could violate the privacy of convicted offenders, tie up crucial databases and even lead the FBI to expel offending states from CODIS -- a penalty that could cripple states' ability to solve crimes.

In one case, Callaghan advised state officials to raise the risk of expulsion with a judge, then told the officials that expulsion was unlikely to happen, according to a record of the conversation filed in court.

In an interview with The Times, Callaghan denied any effort to mislead the court.

The FBI's arguments have persuaded courts in California and other states to block the searches. But in at least two states, judges overruled the objections.

The resulting searches found nearly 1,000 morepairs that matched at nine or more loci.

"I can appreciate why the FBI is worried about this," said David Kaye, an expert on science and the law at Arizona State University and former member of a national committee that studied forensic DNA.

But "people's lives do ride on this evidence," he said. "It has got to be explained."

Concerned about errors

From her first discovery in 2001, Troyer and her colleagues in the Arizona Department of Public Safety's Phoenix DNA lab were intrigued.

At the time, many states looked at only nine or fewer loci when searching for suspects. (States now commonly attempt to compare 13 loci, though often fewer are available from old or contaminated crime scene evidence.)

Based on Troyer's results, she and her colleagues believed that a nine-locus match could point investigators to the wrong person.

"We felt it was interesting and just wanted people to understand it could happen," said Troyer, who initially declined to be interviewed, then cautiously discussed her findings by telephone, with her bosses on the line.

"If you're going to search at nine loci, you need to be aware of what it means," said Todd Griffith, director of the Phoenix lab. "It's not necessarily absolutely the guy."

Troyer made a simple poster for a national conference of DNA analysts. It showed photos of the white man and the younger black man next to their remarkably similar genetic profiles.

Some who saw the poster said they had seen similar matches in their own labs.

But Bruce Budowle, an FBI scientist who specializes in forensic DNA, told colleagues of Troyer that such coincidental matches were to be expected.

Three years later, Bicka Barlow, a San Francisco defense attorney, came across a description of Troyer's poster on the Internet.

Its implications became clear as she prepared to defend a client accused of a 20-year-old rape and murder.

A database search had found a nine-locus match between his DNA profile and semen found in the victim's body. Based on FBI estimates, the prosecutor said the odds of a coincidental match were as remote as 1 in 108 trillion.

Recalling the Arizona discovery, Barlow wondered if there might be similar coincidental matches in California's database -- the world's third-largest, with 360,000 DNA profiles at the time. The attorney called Troyer in Phoenix to learn more.

Troyer seemed eager to talk about her discovery, which still had her puzzled, Barlow recalled. The analyst told Barlow she had searched the growing Arizona database since the conference and found more pairs of profiles matching at nine and even 10 loci.

Encouraged, Barlow subpoenaed a new search of the Arizona database. Among about 65,000 felons, there were 122 pairs that matched at nine of 13 loci. Twenty pairs matched at 10 loci. One matched at 11 and one at 12, though both later proved to belong to relatives.

Barlow was stunned. At the time, such matches were almost unheard of.

That same year, Fred Bieber, a Harvard professor and expert in forensic DNA, testified in an unrelated criminal case that just once had he seen a pair of profiles matching at nine of 13 markers, and they belonged to brothers. He had heard of a 10-locus match between two men, but it was the result of incest -- a man whose father was also his older brother.

Indeed, since 2000, the FBI has treated certain rare DNA profiles as essentially unique -- attributable to a single individual "to a reasonable degree of scientific certainty."

Other crime labs have adopted the policy, and some no longer tell jurors there is even a possibility of a coincidental match.

Soon after Barlow received the results, Callaghan, the head of the FBI's DNA database unit, reprimanded Troyer's lab in Phoenix, saying it should have sought the permission of the FBI before complying with the court's order in the San Francisco case.

Asked later whether Callaghan had threatened her lab, Troyer said in court, "I wouldn't say it's been threatened, but we have been reminded."

Dwight Adams, director of the FBI lab at the time, faxed Griffith, Troyer's boss, a letter saying the Arizona state lab was "under review" for releasing the search results.

"While we understand that the Arizona Department of Public Safety, acting in good faith, complied with a proper judicial court order in the release of the nine-loci search of your offender DNA records, this release of DNA data was not authorized," Adams wrote, asking Arizona to take "appropriate corrective action."

Arizona officials obtained a court order to prevent Barlow from sharing the results with anyone else.

But it was too late. After a judge found the Arizona results to be irrelevant in Barlow's case, the defense attorney e-mailed them to a network of her colleagues and DNA experts around the country.

Soon, defense lawyers in other states were seeking what came to be known as "Arizona searches."

'Don't panic'

For years, DNA's strength in the courtroom has been the brute power of its numbers. It's hard to argue with odds like 1 in 100 billion.

Troyer's discovery threatened to turn the tables on prosecutors. At first blush, the Arizona matches appeared to contradict those statistics and the popular notion that DNA profiles, like DNA, were essentially unique.

Law enforcement experts scrambled to explain.

Three months after the court-ordered search in Arizona, Steven Myers, a senior DNA analyst at the California Department of Justice, gave a presentation to the Assn. of California Crime Lab Analysts. It was titled "Don't Panic" -- a hint at the alarm Troyer's discovery had set off.

Many of the Arizona matches were predictable, Myers said, given the type of search Troyer had conducted.

In a database search for a criminal case, a crime scene sample would have been compared to every profile in the database -- about 65,000 comparisons. But Troyer compared all 65,000 profiles in Arizona's database to each other, resulting in about 2 billion comparisons. Each comparison made it more likely she would find a match.

When this "database effect" was considered, about 100 of the 144 matches Troyer had found were to be expected statistically, Myers found.

Troyer's search also looked for matches at any of 13 genetic locations, while in a real criminal case the analyst would look for a particular profile -- making a match far less likely.

Further, any nonmatching markers would immediately rule out a suspect. In the case of the black and white men who matched at nine loci, the four loci that differed -- if available from crime scene evidence -- would have ensured that the wrong man was not implicated.

The presence of relatives in the database could also account for some of Troyer's findings, the FBI and other experts say. Whether that's the case would require cumbersome research because the databases don't contain identifying information, they say.

Some scientists are not satisfied by any of these explanations. They wonder whether Troyer's findings signal flaws in the complex assumptions that underlie the FBI's rarity estimates.

Behind the estimates

In the 1990s, FBI scientists estimated the rarity of each genetic marker by extrapolating from sample populations of a few hundred people from various ethnic or racial groups. The estimates for each marker are multiplied across all 13 loci to come up with a rarity estimate for the entire profile.

These estimates make assumptions about how populations mate and whether genetic markers are independent of each other. They also don't account for relatives.

Bruce Weir, a statistician at the University of Washington who has studied the issue, said these assumptions should be tested empirically in the national database system.

"Instead of saying we predict there will be a match, let's open it up and look," Weir said.

Some experts predict that given the rapid growth of CODIS, such a search would produce one or more examples of unrelated people who are identical at all 13 loci.

Such a discovery was once unimaginable.

'Dire consequences'

In January 2006, not long after Barlow distributed the results of the court-ordered search in Arizona, the FBI sent out a nationwide alert to crime labs warning of similar defense requests.

Soon after, the bureau's arguments against the searches were being made in courtrooms around the country.

In California, Michael Chamberlain, a state Department of Justice official, persuaded judges that such a search could have "dire consequences" -- violating the privacy of convicted offenders, shutting down the database for days and risking the state's expulsion from the FBI's national DNA system. All this for a search whose results would be irrelevant and misleading to jurors, Chamberlain argued.

When similar arguments were made in an Arizona case, the judge ruled that the search would be "nothing more than an interesting deep sea fishing expedition."

But in Illinois and Maryland, courts ordered the searches to proceed, despite opposition from the FBI and state officials at every turn.

In July 2006, after Chicago-area defense attorneys sought a database search on behalf of a murder suspect, the FBI's Callaghan held a telephone conference with Illinois crime lab officials.

The topic was "how to fight this," according to lab officials' summary of the conversation, which later became part of the court record.

Callaghan suggested they tell the judge that Illinois could be disconnected from the national database system, the summary shows. Callaghan then told the lab officials that "it would in fact be unlikely that IL would be disconnected," according to the summary.

In an interview, Callaghan disputed he said that.

"I didn't say it was unlikely to happen," he said. "I was asked specifically, what's the likelihood here? I said, I don't know, but it takes a lot for a state to be cut off from the national database."

A week later, the judge ordered the search. Lawyers for the lab then took the matter to the Illinois Supreme Court, arguing in part that Illinois could lose its access to the federal DNA database. The high court refused to block the search.

The result: 903 pairs of profiles matching at nine or more loci in a database of about 220,000.

State officials obtained a court order to prevent distribution of the results. The Times obtained them from a scientist who works closely with the FBI.

A 'unilateral decision'

A similar fight occurred in a death penalty case in Maryland during the summer and fall of 2006.

The prosecutor saw a DNA match between a baseball cap dropped at the crime scene and the suspect as so definitive that he didn't plan to tell the jury about the chance of a coincidental match, records show.

Seeking to cast doubt on the evidence, the defense persuaded the judge to order an "Arizona search" of the Maryland database. The state did not comply.

After the defense filed a contempt-of-court motion, Michelle Groves, the state's DNA administrator, argued in court and in an affidavit that, based on conversations with Callaghan at the FBI, she believed the request was burdensome and possibly illegal.

According to Groves, Callaghan had told her that complying with the court order could lead Maryland to be disconnected from CODIS -- a result Groves' lawyer said would be "catastrophic."

Groves' affidavit was edited by FBI officials and the technology contractor that designed CODIS, court records show. Before submitting the affidavit, Groves wrote the group an e-mail saying, "Let's see if this will work," court records show.

It didn't. After the judge, Steven Platt, rejected her arguments, Groves returned to court, saying the search was too risky. FBI officials had now warned her that it could corrupt the entire state database, something they would not help fix, she told the court.

Platt reaffirmed his earlier order, decrying Callaghan's "unilateral" decision to block the search.

"The court will not accept the notion that the extent of a person's due process rights hinges solely on whether some employee of the FBI chooses to authorize the use of the [database] software," Platt wrote.

The search went ahead in January 2007. The system did not go down, nor was Maryland expelled from the national database system.

In a database of fewer than 30,000 profiles, 32 pairs matched at nine or more loci. Three of those pairs were "perfect" matches, identical at 13 out of 13 loci.

Experts say they most likely are duplicates or belong to identical twins or brothers. It's also possible that one of the matches is between unrelated people -- defying odds as remote as 1 in 1 quadrillion.

Maryland officials never did the research to find out.

Tagged as: jury trial defense, motion to dismiss unlawful police search

Former Child Star Wanted for Murder and Child Abduction

Posted on: July 9, 2008 at 10:06 a.m.

Defending charges involving a life sentence is challenging, but not impossible. Experienced Los Angeles criminal defense attorneys, especially who are former trial prosecutors, often undertake the defense of charges involving murder, manslaughter, and other types of homicide.

Mark Everett, former star of such shows as "Pee Wee's Playhouse" and movies like "Stand and Deliver" is wanted by authorities for killing his live-in girlfriend and abducting their three-year-old son. Everett, whose real name is Manuel Benitez, began to sell drugs after his child acting career tailed off and hid this fact, and other elements of his past, from his then girlfriend. He'd been arrested before on drug charges and on weapon charges, and is now being pursued for these crimes.

When individuals such as this former star compound matters by being arrested for unrelated crimes, it makes the job of the defense attorney that much more difficult. Judges and juries will rarely sympathize with a defendant if he demonstrates no remorse or flaunts an arrogant personality. An aggressive courtroom defense along with the assistance of jury consulting, a thorough defense investigation, and a relentless cross-examination of the state's evidence may lead to a reduced offense or a complete acquittal.

Murder charges in California are covered under the state's Three Strikes laws , if the individual has a prior record, and carry sentences of life in prison or the death penalty if the crime is severe enough. Everett has been on the run for years. He is down but not out. A aggressive courtroom defense may save him a life behind bars, if his criminal lawyers demonstrate that the evidence is insufficient to prove his guilt.

Tagged as: domestic violence pc 273_5, jury trial defense

Animal Cruelty, a California Felony

Posted on: July 3, 2008 at 2:17 p.m.

Los Angeles Criminal Lawyers are sometimes hired to defend cases of animal cruelty. While rare, the charges often bring public outrage. The Los Angeles County District Attorney's Office even created a Special Unit to prosecute such cases.

A homeless man in Los Angeles was arrested and charged with multiple felony counts of animal abuse for allegedly soaking cats in gasoline and lighting them on fire. In 2008 there have been multiple cases of animal abuse reported and prosecuted by the Los Angeles District Attorney's office, including illegal cock-fights, animal poisoning, shooting of animals, dog fighting and more.

The Prevention of Cruelty to Animals Act of 2003 increased penalties for people found guilty of animal abuse. Aggravated cruelty can lead to $11,000 in fines, two years in jail or both if convicted. While some states prosecute this crime as a misdemeanor, California considers it a felony.

Michael Vick's conviction for dog-fighting has brought a great deal of attention to the area of animal abuse, and sentences and penalties have increased as a result. There are a number of people who want animal abuse to be more than just a felony, but to bring with it intense jail time.

Here are some animal abuse crimes that can/will carry with them serious penalties:

- Killing an animal that belongs to someone will often net a more harsh penalty, in part because of the emotional attachment and in part because of the destruction of property.

- Killing an endangered animal, or an animal protected by a state agency, can lead to serious jail time and fines.

- Involvement in illegal animal fights, such as dog fights or cock fights, can lead to a number of felony charges, in part because gambling is usually involved.

Tagged as: federal law and defense, jury trial defense

Weapons Charges and Dennis Farina

Posted on: June 12, 2008 at 10:09 a.m.

Dennis Farina, star of the television show "Law & Order" and the movie "Get Shorty," was arrested on weapons charges for bringing a gun to an airport.

Back in May, the 64-year-old actor was booked in the felony case for possessing a case with a semiautomatic .22 gun. The actor spent a day in the Van Nuys jail and posted $35,000 bail. Farina claimed to have forgotten he had the gun with him. Farina isn't the only high-profile individual to have had this happen to him; Snoop-Dog was arrested at an airport for similar charges, as was the son of former presidential candidate Mike Huckabee. Both were carrying weapons into the airport, which is illegal.

In California, especially in cities such as Los Angeles and San Francisco, weapons and firearms laws are particularly stringent, and the general public must be aware of this.

Below are some tips on how to handle firearms and weapons related charges:

1. Contact an attorney - Law enforcement may not notify you of your rights entirely, and security at the location where you've been arrested may not act according to the law. An experienced attorney will be able to help you with this.
2. Cooperate with police - While you do have the right to remain silent, you don't have the right to resist arrest, fight with the police or obstruct justice. This may help with sentencing.
3. Be aware of your surroundings - Places like airports, schools and other public places will be particularly sensitive to someone bringing firearms or weapons with them. Be aware of this when you're traveling to a school, a park, any major city or the airport.
4. A serious enough weapons charge could count against you as a felony or under California's Three Strikes laws.
5. Any weapon can and will be checked for recent crimes, and even if you aren't the person who committed the crime, it could lead to jail time.

Tagged as: california criminal laws, counterfeit goods pc 350, federal law and defense, jury trial defense

Murder in Los Angeles: The Numbers are Frightening, For Some

Posted on: June 2, 2008 at 4:30 p.m.

As of May 18 of this year, there were 315 murders in the city of Los Angeles. For a city with 4 million or so people, that's not a very high number, however a further look into those statistics reveal not only a terrible reality, but a scary revelation of present day LA.

Of those 315 murders, 269 were black or Latino, and only 30 victims were white. Los Angeles has long had racial challenges (highlighted by the 1969 and 1994 riots), but this number is staggering when taken into consideration. African Americans don't even make up 10% of the total population of Los Angeles and yet they total over 24% of all murder victims. Latinos are roughly a little less than half the total population of Los Angeles, and yet they number far more than half the number of murder victims.

Almost all of these murders involved weapons, and almost 80% of them involved guns. Many of these tragedies involve gangs and/or gang activities, and the city of Los Angeles has long talked about trying to stem the tide of gang violence (with very little success). Murder seems like a black and white crime, a person is alive one minute and dead the next. However, this crime is not always obvious, and there are often mitigating circumstances.

The war against violent crime can often net innocent people, as evidenced by the countless inmates currently being freed on DNA evidence who were on death row. If you've been arrested on murder charges or need advice, contact a competent attorney to protect your rights from being violated.

Tagged as: california criminal laws, jury trial defense

Prosecution's Failure to Recover - Test Evidence: 2008 Example of Wrongful Conviction

Posted on: April 27, 2008 at 3:08 p.m.

People on the street ask criminal defense lawyers - how can you represent a murderer? The Law Blog's frequent response is that a client is just accused of murder, and may actually be innocent. The next question may be - How is this possible? Hasn't the police done its job and gone after the right person? A criminal lawyer obviously reviews each client's defense on a case by case basis - and his or her job is to provide a zealous defense, to ensure that the prosecution has proven its case. Sometimes the police, the prosecution, and even the jury get it wrong: garbage in, garbage out.

In other words, if the evidence in a case is somehow wrong, or misleading as to what actually happened, then the result could be just as incorrect. A recent case in Southern California illustrates the point of how effective criminal defense helps the innocent. In San Diego, California, a widow was accused of poisoning her husband, for insurance money. The prosecution further alleged that she used the insurance proceeds, not on her kids, but on plastic surgery, multiple lovers, and large parties. Further the evidence showed that she appeared to not be grieving after her husband died and, ultimately, was convicted by jury of his murder.

After the jury verdict, Defendant Cynthia Sommer hired a different criminal defense attorney - who may have been asked "how can you represent a convicted murderer, an evil woman?"

As a result of the new lawyer's efforts, and after his client Cynthia Sommmer had spent close to 3 years in custody, San Diego County Dist. Atty. Bonnie Dumanis moved to dismiss murder charges against her, telling reporters that overlooked evidence and new scientific scrutiny had poked holes in the prosecution's assertion that she used arsenic to kill her husband. It was a startling conclusion to a murder prosecution built on a tabloid-style scenario of a scheming wife poisoning her younger husband, watching as he died and then -- soon after -- getting a $5,400 breast augmentation, partying and having sex with several partners. Within hours of Dumanis' announcement, Sommer was free. "I never lost any hope, faith or anything....You can never give up if you're innocent," she told the press.

In November 2007, a jury had convicted Sommer of first-degree murder, but the trial judge overturned the verdict, ruling that prosecutors' description of her "lifestyle" was so inflammatory that it deprived Sommer of a fair trial. She had been convicted of murder with special circumstances -- murder for hire and murder by poison -- that carried a mandatory life sentence without possibility of parole. Deceased Todd Sommer, 23, was stationed at Miramar Marine Corps Air Station and appeared to be in excellent health when he fell ill and died within days in 2002. Married in 1999, the couple had a son. Cynthia Sommer had three children by a previous marriage.

When she was arrested in 2005, she had moved to Florida. Prosecutors had said Sommer killed her husband to collect on his $250,000 life insurance policy and begin a new, fun-filled life. She had remained in jail while prosecutors prepared for a second trial. In response to a discovery motion by Sommer's new defense attorney, prosecutors gathered all the tissue samples that had been taken from her husband's body, including some that were not tested before the first trial. When they had the new samples tested, forensic experts could not find arsenic -- creating what D.A. Dumanis called reasonable doubt that Todd Sommer had died of arsenic poisoning. An expert newly hired by the prosecution also suggested that earlier samples in which arsenic was found had been contaminated. The new criminal lawyer told the press that it should not have taken a defense motion to make prosecutors gather samples that had remained at the San Diego Naval Medical Center since Todd Sommer's death.

During the jury trial resulting in the wrongful conviction, San Diego County Superior Court Judge Peter Deddeh told prosecutors he would not allow evidence about Sommer's behavior after her husband's death. But Deddeh relented when defense attorney Robert Udell opened the door by introducing his own evidence of Sommer as a grieving widow. After the conviction, Deddeh ruled that her attorney's error had deprived Sommer of a fair trial.
The evidence about her breasts, drinking and sexual activity "became like an overwhelming cloud that covered everything," said her new attorney. Even as both sides prepared for a second trial, prosecution investigators were again asking Sommer's friends questions about her behavior after her husband's death, the new criminal defense lawyer said. He was prepared to call experts who would suggest that Todd Sommer died of a heart ailment or reaction to weight-control pills or an anti-diarrhea prescription medication.

So even in 2008 there is a risk that without a zealous and thorough criminal defense, a person may be convicted and yet be completely innocent of the charges.

Tagged as: california criminal laws, faq, jury trial defense, motion to dismiss unlawful police search

Murder or Manslaughter? Criminal Defense, California Law, and Sentencing Issues

Posted on: August 28, 2007 at 11:01 a.m.

To be found guilty of the crime of murder requires that the accused have an intent to kill the deceased. The intent may be express (Defendant stating "I am going to kill her" and then pointing the gun at the victim's face), or implied (as in high-risk conduct by a Defendant in a police pursuit causing the death of an innocent pedestrian). Because of the gravity of the offense, the crime of murder carries life in prison, and due to the politics in California the Office of the Governor and the Parole Board almost never release someone on parole previously convicted of murder. Accordingly, criminal defense lawyers that are working in Los Angeles Courts, and throughout the Southern California criminal justice system, may ask that the jury to find their client guilty of something less than murder, such as a voluntary manslaughter or an involuntary manslaughter. Thes are crimes for which a Defendant is eligile for probation. The typical defenses to a murder charge being reduced include (1) "unreasonable" self-defense (2) voluntary intoxication (3) provocation and (4) heat of passion. Should the Los Angeles criminal lawyer be able to establish the defense, the Defendant is eligible for probation after a trial.

For example, a preacher's wife in the south was recently convicted of Manslaughter for killing her husband, and received probation. The case received lots of media attention. Court TV reported tha: "A preacher's wife who was convicted of manslaughter for shooting her husband to death left jail Wednesday for a mental health facility, where she will serve the remainder of her sentence. After spending 13 days in McNairy County jail in Selmer, Tenn., Mary Winkler was transferred to an undisclosed mental health facility, where she will receive treatment for longstanding mental health issues, including post-traumatic stress disorder, depression and a mild personaliyy disorder. Circuit Judge Weber McCraw, who presided over Winkler's murder trial and gave her the option of serving some of her sentence in a mental health facility, signed the sealed order releasing Winkler Wednesday."At the provider's request and to ensure she has the treatment she needs, the name and location of the facility are not being disclosed," Tennessee Supreme Court public information officer Sue Allison said."

Defendant Winkler was convicted of voluntary manslaughter in April for shooting Matthew Winkler in the back as he lay in bed in the family parsonage on March 22, 2006.On June 8, McCraw sentenced Winkler to three years, but with 210 days to be served in custody, minus 143 days she served in pretrial custody in 2006. He also gave her the option of serving up to 60 days in a mental health facility.

During Winkler's trial earlier this year, defense psychologist Lynne Zager testified that Winkler's mental state affected her ability to form the criminal intent to kill her husband. Taking the stand in her defense, Winkler told jurors that her husband subjected her to emotional, physical and sexual abuse, prompting her to shoot him. The jury's verdict of voluntary manslaughter appeared to give credence to her claims. At her sentencing in June, McCraw asked Zager if Winkler would benefit from treatment in a mental heath facility, and Zager said yes.Because Winkler has already served 13 days in jail, she is set for release back to society after serving out her time in the mental health facility. Before she was taken into custody at sentencing, Winkler was living in McMinnville, Tenn., with a family who took her in after she was released on bond in 2006. The head of the household testified at her sentencing that Winkler had become a new person since going to live with the family.Her boss at a dry cleaner in McMinnville also testified at her sentencing that Winkler was a model employee whom the public should not fear if she were released.

Tagged as: federal law and defense, jury trial defense

What is forensic evidence and how is it used in court?

Posted on: June 22, 2007 at 2:18 p.m.

Typically forensic evidence refers to physical evidence such as fingerprints, DNA, blood spatter, gun shot residue, and ballistics. This physical evidence assists to establish what happened during an alleged criminal act. Some say science is an objective witness, with no reason to lie, no reason to distort the truth, and no biases. Forensic evidence is presented in court through two types of expert witnesses (1) those who gather the evidence and (2)those who interpret what the evidence mean in terms of related scientific principles. For example, criminalists collect blood smears from the crime scene. DNA experts then test the blood in the lab, against available samples provided by a suspect. Criminal lawyers then subpoena the DNA experts to court to establish if someone's genetic materials is or is not present at a crime scene. While pure science does not distort, expert witnesses infuse their subjective opinions into the trial. Their motives are clearly relevant as they are typically financially compensated by the side that calls him or her to the witness stand. Say the Prosecutor calls a government DNA expert at trial to explain that Defendant's DNA was located at scene -- thus establishing that he may be responsible for the crime. In response, the defense lawyers will call its own DNA experts to disagree with these results, or to question the testing methodology. The high-profile Spector trial has experts from the prosecution and the defense battling over how established scientific principles apply to their divergent opinions.

Tagged as: drug crimes defense, faq, jury trial defense

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