Resisting Arrest v. Fighting with the Police: California Penal Code Sections 148(a) and 69 DiscussionPosted 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
The failure to disclose evidence by a criminal prosecutor is a defense attorney's fear. Is a prosecutor willing to win at any cost, so that he or she will hide or fail disclose evidence favorable to a criminal defense attorney? While in practice in Los Angeles courts this phenomenon is rare, a recent criminal law case addressed what happens when evidence is withheld from the defense.
Los Angeles criminal defense lawyers have many tools to prevent a prosecutor from hiding the ball, including filing informal and formal discovery motions pursuant to Penal Code Section 1054.
Specifically the California Court of Appeal ruled a videotape of the medical examination of the alleged victim of a sexual assault, in the possession of a medical professional who works with police and prosecutors, should have been turned over to defense lawyers as potentially exculpatory evidence. The justices said the tape might have been helpful to attorneys for Agustin S. Uribe because it supported a defense expert
Tagged as: motion to dismiss unlawful police search, police misconduct, sex crime accusations
Los Angeles criminal defense attorneys are coming across cell phone and text messaging evidence more and more in court. The evidence connects parties to crimes, established relationships, and provides actual language/conversations between people - without a wiretap order. Recently the United States Court of Appeals for the Ninth Circuit held that users of text-messaging services have a reasonable expectation of privacy in the contents of copies of messages the service provider stores on its network.
A three-judge panel ruled unanimously that the Ontario Police Department violated the Fourth Amendment rights of one of its officers and three others with whom he had exchanged text messages on a department-issued pager when it obtained transcripts of the messages from the service provider and reviewed their contents in order to determine whether a monthly overage charge resulted from personal use.The officer
Tagged as: motion to dismiss unlawful police search, probation and sentencing laws
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
This appelate court decision exemplifies what happens when a trial judge instructs the jury with incorrect law, and the subsequent jury conviction is thrown out. On appeal, the reviewing court reversed the assault with a deadly weapon and evading a peace officer convictions of a woman who struck a Long Beach pedestrian with her car when she drove down a beach bicycle path, pursued by a harbor patrolman, while fleeing an earlier collision.
Concluding that a Los Angeles Superior Court Judge erred when she instructed a jury that the crime of assault does not require awareness as an element, and pointing out that the prosecution had failed to present any evidence that the patrolman, a fire department employee, was a
Tagged as: motion to dismiss unlawful police search
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."
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.
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
Criminal offenses and special allegations may be dismissed by way of a California Penal Code Section 995 Motion, if evidence at the preliminary hearing is insufficient to have the jury consider the charged conduct. Los Angeles Criminal Defense Attorney frequently use the 995 Motion to dismiss charges before a trial. In other words, a criminal defense lawyers prevails without having to go to trial on the charges.
A recent successful 995 motion was considered by the California Court of Appeal, after the trial judge granted the motion and the DA appealed. The Court of Appeal agreed with the trial judge's decision that a three-year-old
Tagged as: california criminal laws, motion to dismiss unlawful police search
L.A. criminal attorneys turn to Penal Code Section 1054 which requires that the prosecutors provide all reports, witness statements, physical evidence, videotapes, photographs, etc. By reviewing what the police has gathered as part of its investigation, the defense is able to be ready to contest the criminal charges. In turn, the defense may want to reinterview witnesses to determine how credible their observations were. The defense may also want retest DNA results, enhance videotape footage, test fingerprints, and do any other forensic investigation to ensure that nothing was missed in the way the case was investigated, so that there are no other suspects and that the forensic testing of evidence was consistent with established scientific principles.
In a recent decision, The California Supreme Court ordered a new penalty trial in the killing of an Eagle Rock convenience store clerk in the early 1980's. The basis for the ruling was the prosecution's failure to turn over favorable evidence to the defense. If evidence is not turned over, then the defense is not able to present it to the jury and thus the rightfulness of the conviction is subject to question. As to this 1982 case, the court held that the death sentence imposed on Adam Miranda for the 1980 killing was tainted because prosecutors, who blamed Miranda for another murder during the penalty phase of his 1982 trial, failed to turn over a letter to the defense in which another man claimed he committed that crime.
At trial, jurors convicted Miranda of the murder of the store clerk, Gary Black, and of assaulting Black
Tagged as: federal law and defense, motion to dismiss unlawful police search
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
California criminal law requires a unanimous verdict - which means all 12 jurors must agree that the defendant on trial is either guilty or not guilty. If the jurors cannot reach a unanimous decision, the judge declares a mistrial and the DA must decide whether to reprosecute the case or not. In a retrial, the DA would have to call all the witnesses again, bring in all the physical, direct, and circumstantial evidence - in other words, do the trial from scratch, as if the first one never even happened. Obviously, the expense and time is great, and many prosecutors will seek to reach a plea bargain with a defendant, to avoid a retrial. As a result, for most Los Angeles Criminal Lawyers, a hung jury represents a de facto legal victory, which often results in a very favorable case disposition for the criminal client.
One way to avoid a hung jury in the first place is to allow the prosecutor and defense attorney the opportunity to reargue their positions in front of the jury, in attempt to clear up any confusion. This is generally more helpful for the prosecution, and the defense will object to the procedure. Recently the California Court of Appeal ruled a trial judge, in San Joaquin Court, did not abuse her discretion in reopening closing argument in order to break a jury deadlock in a criminal case. The court affirmed a defendant's robbery conviction, which resulted in a 25-year-to-life prison sentence under the Three Strikes Law. In doing so, it rejected the defense argument that there was no statutory support for the judge's decision to allow a new round of closing argument after jurors reported that they were deadlocked.
Prosecutors charged defendant with robbing a USA Gas Station in Lodi, with Hayes using a firearm and Young a BB gun that simulated a firearm. A police officer who knew defendant and his family identified him from a photo that was made from a surveillance tape, and the two clerks who were working at the time of the robbery identified him from a photo array. A police detective testified to an unrecorded interview in which defendant
admitted his involvement, said he was sorry, identified a co-Defendant as the other robber, and suggested he would
Tagged as: motion to dismiss unlawful police search
What is the Prosecutor's burden in proving a defendant's guilt? Have you seen innocent people falsely accused despite evidence of their innocence?Posted on: October 6, 2007 at 7:33 p.m.
California Criminal Law requires that the state prove every element of a criminal offense beyond a reasonable doubt. This rule applies whether a defendant is accused of a DUI misdemeanor, or a serious felony such as Manslaughter or Murder. "Beyond a Reasonable Doubt" is defined as proof that is so strong that each juror has an "abiding conviction in the truth of the charge." This means that each juror's belief about the defendant's guilt is so strong that he would not change his mind later that day, that week, or later than month. This is a very high burden! Even if the juror feels defendant likely did it, but that not beyond a reasonable doubt, he must vote to acquit the defendant. Los Angeles Criminal Defense Lawyers argue in front of juries daily in Southern California courts, ensuring that the government has met its burden before a unanimous verdict is rendered. Nevertheless, jury decisions are sometimes fallible. The Innocent Project, based on the East Coast, has been involved in litigating on appeal hundreds of cases over the last decade, around the country. This criminal defense consortium has demonstrated that 100s of convicted defendants were later proven innocent through DNA testing, or other means. Many spent years in prison, and some were facing the possibility of the death penalty. 75% of the bad convictions resulted from faulty eyewitness identification, while the others were caused by coerced confessions, prosecutorial misconduct, or police hiding exculpatory evidence. The jury trial system is a powerful tool against government abuse. It prevents the state from prosecuting people with contrarian views, outspoken critics, or others with disparate interests. And it works to preclude politicians from pursuing rivals through false criminal claims in the courts. These are often problems in developing countries, and former Eastern Block nations, where the court system is corrupt, and there is no social acceptance of the court system as just and fair. Despite the United States' justice system's Constitutional right to a jury trial, and the right to an effective advocate, the court process does make mistakes. Aggressive criminal defense work is very important to ensuring that the innocent are exonerated.
Tagged as: california criminal laws, motion to dismiss unlawful police search
Defendant Phil Spector's jury trial has now entered its 5th month. The Prosecution has called numerous witness, and the Defense is calling its own forensic and character witnesses. Finally, both sides intend to present rebuttal cases - to respond to the other's contentions.
As no one observed the shooting take place and Defendant denied
committing a crime, there is no direct evidence of what happened.
As a result, circumstantial evidence provides both the Defense and the Prosecutors strong points of argument. In other words, this evidence relies on what inferences a side make from certain circumstances (as described below), to prove the ultimate fact -- did Clarkson or Spector pull the trigger.
It is significant that -- before deliberations - the jury will be instructed that if there are two reasonable interpretations to the circumstantial evidence, jurors must give the Defendant a benefit of a doubt, and accept the defense version of the evidence.
To recap, Los Angeles criminal prosecutors argue that Spector shot Clarkson when she tried to leave, after accompanying him home from the House of Blues, where she worked as a VIP hostess. His L.A criminal defense lawyers say the 40-year-old actress, despondent over her fading Hollywood hopes, took her own life.
Here is how some of the circumstantial evidence fits into the competing versions of what happened, in front of the jury:
1) Did a drunken Spector shoot Clarkson when she spurned his romantic advances, as the prosecution alleges? Or were Clarkson and Spector intimate before she shot herself in an impulsive act, fueled by alcohol and Vicodin, as the defense contends?
A three-pack of Viagra with two tablets missing was found in Spector's briefcase, and an empty bottle of tequila and two glasses with Clarkson and Spector's fingerprints were left on a coffee table in the mansion's living room. Clarkson's false eyelashes were left next to a snifter of liquor in the bathroom.
The items could support both the defense and prosecution theories.
2)Gun: The prosecution says smeared blood on the murder weapon suggests Spector tried to wipe it clean, perhaps to remove his fingerprints.
The gun was found under Clarkson's left ankle; the 40-year-old actress was right-handed. Prosecutors say if she had shot herself, the gun would have dropped beneath her right hand. Defense attorneys say police could have moved the gun after the shooting. They note that a piece of wire from an electric Taser used to subdue Spector well after the shooting was also recovered from under Clarkson's foot.
3)Diaper: Prosecutors say a white cloth diaper, soaked with Clarkson's blood and left on the bathroom floor, was used to clean up the crime scene as part of Spector's efforts to cover up a murder. The defense contends Spector used the diaper to render aid to Clarkson.
4)Clothing: Up to 18 tiny drops of Clarkson's blood were found on the white women's jacket that Spector wore that night and was found upstairs. The defense argues the jacket would have been covered with blood if Spector had been close enough to fire with the gun barrel in Clarkson's mouth. The absence of blood on the jacket cuffs, in particular, is evidence he was not the shooter, his attorneys say.
The defense also contends that copious blood and tissue stains on Clarkson's black slip dress are signs she shot herself.
5)Prosecutors say the fact that Clarkson's dress was bloodied, while her outstretched legs were not, shows that the blood traveled no more than the length of her dress, about 3 feet. That puts Spector, whose jacket was spattered with blood, within shooting range, they suggest.
Defense experts say the absence of blood on Clarkson's legs means nothing. They contend her legs were extended only after she was shot, when she slumped in the chair.
The prosecution also maintains that blood in the pocket of Spector's trousers -- a pair of Haggar Expandomatic slacks -- could show he put the gun there after he shot Clarkson.
The defense says the lack of blood spatter on the trousers shows that Spector was standing too far away to have shot Clarkson.
Clarkson's purse was hanging backward over her shoulder. A prosecution expert testified that could suggest it had been placed there by someone else -- presumably Spector, the only other person in the house -- after her death.
6)Flat white object: Prosecutors say a small white object removed from the crime scene by defense criminalist Henry Lee and concealed from investigators was a piece of Lana Clarkson's acrylic fingernail, broken or blown off when she held her hands up in front of her face to block the gun. The defense says either there was no object, or it was something else, perhaps a carpet fiber, that was turned over to the prosecution. Defense experts say an acrylic fingernail would have melted in the heat of the gun blast.
7)Chauffeur: Driver Adriano DeSouza told 911 operators and police that Spector stood in the doorway holding a bloody gun and said, "I think I killed somebody." The defense says DeSouza probably misunderstood Spector, because of language difficulties (he is a native Portuguese speaker) or noise from an outdoor fountain.
Tagged as: counterfeit goods pc 350, motion to dismiss unlawful police search
Criminal Defense - Jury Trials: Can a jury visit the crime scene, as part of reviewing the evidence in the case?Posted on: August 9, 2007 at 4:13 p.m.
It is logical to believe that jurors, acting as fact finders, can visit the scene of an alleged crime as part of trying to figure out what happened, and whether the accused should be criminally responsible (and thus ultimately be punished with time in custody).
As part of trial preparation, most experienced criminal defense lawyers will visit the crime scene. A visit gives a trial attorney a sense of proportion, context, and prepares him or her for successfully dealing with cross-examination, especially when questioning witnesses familiar with the location.
However, criminal law prohibits jurors from visiting the crime scene on their own initiative. The jury instructions in California specifically prohibit jurors from visiting or driving by the crime scene. The conventional wisdom of the court system is that lawyers, not jurors, decide on which evidence to present, and how to do so. Thus it is up to criminal attorneys to request of the trial judge to have jurors conduct a supervised visit of the crime scene, as part of evidence gathering in the case.
Recently, this was done in Phil Spector's murder trial pending as reported by the L.A. Times. " Jurors in the Phil Spector murder trial toured the music producer's Alhambra home this morning, with some jury members trying to re-create the position in which actress Lana Clarkson was found after Spector allegedly killed her four years ago.
A casually dressed Spector welcomed them to his "Pyrenees Castle," as the home is called on a sign out front, wearing a long-sleeved blue T-shirt, sweatpants and sandals.
The jury visit to the hilltop property was requested by the defense. Spector's team believes jurors who see the foyer where Clarkson's body was found will be better able to decide whether Spector held the gun that killed her or whether he was an innocent bystander several feet away. The defense contends the actress killed herself with a shot to the mouth in Spector's foyer.
Richard Gabriel, the defense's jury consultant, said one of the things jurors might discern is whether there were signs of a struggle in the small space -- such as furniture or rugs knocked out of position. (Apparently there were not.)
Four jurors sat in a chair where Clarkson's body was found as they tried to re-create "the position in which she was found," said Linda Deutsch, the pool reporter."
This was not the first time a high-profile trial conducted in Los Angeles had a jury visit the crime scene. The O.J. Simpson case also had the jury visit the home of the defendant.
Tagged as: federal law and defense, motion to dismiss unlawful police search
The California Legislature realizes the strong likelihood of false convictions in criminal cases, as reported in the L.A. Times on June 27, 2007. One pending bill is aimed at reducing the number of false confessions. It would mandate electronic recording of interrogations of suspects in homicides and violent felonies who are in police custody. Often the police fail to record statements made by suspects. As a result, officers and detectives are free to suggest whatever they want in front of juries, without the support of a recording. This is very problematic especially in cases where suspects are facing life in prison, or the death penalty. Further, unlawful coercive conduct by the police is known to happen in interview rooms, where the suspect may be badgered, denied contact with family an friends, and even threatened with having own family members investigated. Resulting false confessions have led to numerous suspects being convicted, who were later exculpated based on DNA evidence. Another pending bill would require corroborating evidence for the testimony of jailhouse informants, who have been shown to lie sometimes to receive reduced sentences or other benefits. Informants seeking to get out of jail early have strong motives to incriminate other inmates, and have done so many times in the past implicating innocent individuals. A third bill required that the California attorney general, in consultation with other key stakeholders in the criminal justice system, to develop new guidelines for lineups presented to eyewitnesses to see if they can identify suspects. Suggestive line-ups had led to numerous wrongful identifications, causing innocent people to be sent to prison for many years. Arthur Carmona of Orange County came to Sacramento to testify on behalf of the bills, in front of the legislature. He told committee members how at age 16 he was arrested, convicted and imprisoned for committing strong-arm robberies in Orange County, based on a mistaken identification by an eyewitness. He spent 2 1/2 years in prison before errors were discovered and he was freed.
Tagged as: faq, motion to dismiss unlawful police search
Can the police search you or your property without a search warrant? What happens if the search is illegal?Posted on: June 10, 2007 at 9:08 p.m.
This question addresses Search and Seizure Law which provides protections to all people from unreasonable police infringement on their rights, as provided in the Fouth Ammendment in the U.S. Constitution. The bottom line in court is whether the search is legal or not. In cases where there is a search warrant, a judge has reviewed the officers' reasons for the search in advance. In other words, the judge has signed off on the search, meaning that if what the police told him under oath him is true, there is sufficient cause to search a certain location. In cases where there is no warrant, the police upon observing suspicious activity justify a search of your person, your car, or your home based on their own opinion. Because this type of search is not judicially preapproved, it receives more scrutiny from courts after someone is arrested and charged. A defense attorney files a Motion to Suppress Evidence to prevent illegally obtained evidence from being used in court against a client pursuant to the provisions of Penal Code Section 1538.5. If the judge finds the police violated a person's constitutional rights, the officers did not have sufficient cause to search you or your property. Thus the recovered incriminating evidence, ie. drugs, firearms, or any other illegal items, is excluded from court which often leads to the case being dismissed. Or, if the police stopped your car for improper reasons to later conduct a DUI investigation, the entire DUI case is dismissed.
Tagged as: faq, juvenile law, motion to dismiss unlawful police search
A defense attorney seeks to exclude evidence obtained as a result of police misconduct. At times, police misconduct occurs in searches that occur during ordinary traffic stops, or in a suspect's home. Additionally, if law enforcement is too aggressive trying to obtain an incriminating statement from a suspect, it may violate the suspect's Miranda right. Litigation in the criminal courts allows a defense lawyer to protect his client's rights by submitting motions to the judge seeking to exclude the recovered evidence, or received statements, from trial. Often a successful motion to suppress cripples the prosecutor's case, causing the case to either be dismissed, or substantially reduced in plea negotiations.
Tagged as: faq, motion to dismiss unlawful police search
Kestenbaum Eisner & Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses.