In Your Defense: An Orange County Criminal Justice Blog

California law says that if a person previously has been convicted of any theft offense, and has served at least a day in jail, future convictions for petty theft (which generally applies to property valued at $400 or less) can be prosecuted as a felony, rather than a misdemeanor. The applicable statute, Penal Code section 666, is known as "petty theft with a prior."

But it seems likely that this law will change soon.

This week, the Legislature passed Assembly Bill 1844. The bill passed both houses unanimously. Governor Schwarzenegger will likely sign it within the next several weeks.

Under AB 1844, the petty theft with a prior statute cannot be alleged unless the defendant has been convicted of theft three or more times, with an important exception. That exception provides that only one prior theft conviction is required if the defendant is a registered sex offender, or if he or she has a prior conviction for a serious or violent felony (i.e., a "strike" under California law).

Because the bill is designated as urgency legislation, it will take effect immediately upon the governor's signature. It will likely be applied not only to those who commit a theft crime after the bill is signed, but to those who were convicted under the prior law, so long as their judgments were not yet final on the date of the governor's signature.

Mark Bennett posts today on his Defending People blog about an academic paper published in the Journal of Criminal Justice that purports to show that criminal defendants represented by public defenders generally receive the same justice as those who hire private counsel to represent them.

The study, entitled "Do You Get What You Pay For? Type of Counsel and its Effect on Criminal Court Outcomes" took place in Cook County, Illinois. It measured case outcome based on four criteria: bail decisions, plea bargaining results, whether the defendant was ultimately incarcerated, and the length of custody for those who were sentenced to jail or prison.

The authors, Richard D. Hartley, et al., analyze the data and conclude:

This study suggests that there is little difference in the 'quality' of legal defense provided to defendants by private attorneys and public defenders. Public defenders are as effective as private attorneys in Cook County (Chicago), Illinois.

I have no quarrel with the study to the extent it simply measures whether the "average" public defender client achieves a result that is roughly the same as the "average" client of private counsel. My own experience tells me that the same conclusion would have been reached if the study took place in Orange County, California.

But if the study were intended to show whether money makes a difference to defendants with the wherewithal to spend it wisely, it fails. If Cook County is like Orange County, most of the best criminal defense attorneys are private. But as I've written before, the overwhelming percentage of the terrible ones are, too. Every prosecutor and judge has watched some defendant think he's doing himself a favor by firing his competent public defender and paying money to retain an attorney recognized by everyone in the courtroom (except the client himself) as a total hack.

A more interesting study would measure the outcome achieved by the "average" public defender vs. private counsel who are viewed as "very good" or better within their legal community.

A man in Saudi Arabia attacked another guy with a meat cleaver. As a result, the victim is paralyzed for life. This morning, the press reports that the sentencing judge is asking Saudi hospitals whether they can perform an operation to damage the defendant's spine so he, too, will be paralyzed for life. It's eye for an eye, spine for a spine.

It is interesting to review the reader comments on various news sites. A good number of people posting comments express their disgust at how this "backward" Islamic judge would consider such a "barbaric" and "sickening" punishment.

While I share their disgust, I suspect that a majority of these commenters also support the death penalty. Many of them would quickly agree with the principle that a person who takes someone else's life should suffer the same consequence.

Why the double standard?

While I oppose the death penalty for a number of reasons, and believe the majority of Americans would be against it if they studied all aspects of it (particularly the extraordinary costs of enforcement), I realize that reasonable minds will differ.

But what I can't see is any principled reason why judicial maiming should be considered fundamentally immoral, but the death penalty should be viewed as acceptable. The only difference I see is that our society has become inured to the latter form of punishment.

Imagine that police officers want to conduct an investigation of a suspected drug dealer. They go to his home at night, attach a magnetic GPS device to the underside of his vehicle, and then track his movements from the relative comfort of their stationhouse.

Is a warrant required under such circumstances? No, according to a recent Ninth Circuit decision.

The decision wasn't much of a surprise. Other courts have achieved the same result, based largely on existing precedent that generally holds that police officers need not obtain a warrant to discover information that people expose to the public. The location of one's vehicle on public roads is no different, these courts say.

But the contrary view is far from frivolous. The United States Supreme Court has held that a warrant is required before officers can use thermal imaging devices to learn if someone is using high-intensity lights to grow marijuana inside his home. A warrant isn't excused simply because someone chose to "expose" his home's radiating heat to the outside world.

Judge Alex Kozinski, dissenting from his court's decision denying en banc rehearing of the Ninth Circuit case, explains why the thermal-imaging precedent should also require a warrant in the context of GPS surveillance.

Kozinski's decision should be read by anyone who is interested in knowing how technological advances have eroded personal privacy to such an extent that police can learn almost anything they want about a person - all without a search warrant, according to the logic of his colleagues in the majority.

The greatest flaw in the majority opinion is how it dismisses the potential consequences of its decision. Regardless of where one sides on the Fourth Amendment question, the majority's decision necessarily means that the police - if they want to - can engage in widespread, warrantless GPS monitoring of every car in a community, without a modicum of judicial oversight. But the majority brushes aside that possibility by saying, "should the government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search."

The majority is dead wrong. If surveillance of a suspected drug dealer doesn't require a warrant because the police conduct in question doesn't amount to a search within the meaning of the Fourth Amendment (which is precisely what the majority held), it would not become a search simply because the police conduct the identical form of surveillance on a massive scale. It was wrong, and intellectually dishonest, for the majority to imply that a different result might occur if that were the case.

While the GPS-on-every-car scenario might seem fanciful or paranoid, I have no doubt that the only thing stopping that from happening now is cost and battery power. Few police departments would turn down the opportunity to enter any license plate in a computer and obtain a timeline showing everywhere that vehicle has ever travelled.

My ideal juror, above, is Diane Slater. She wins this award for her thoughtful response to the allegations made against her son, JetBlue flight attendant Steven Slater: "I think he just had a little meltdown, and I think he deserved to be able to have that meltdown."

Note to any juror who may be sitting on one of my cases and reading this in violation of numerous court orders: This is pure satire. I did not pick you because I thought you were some co-dependent apologist. To the contrary, I know you are very wise and have an extraordinary ability to see that the prosecution never should have filed this case.

The OC Weekly's R. Scott Moxley alerts his readers this week to an unpublished appellate court opinion chiding a local family court judge for making the following "inappropriate" statements to a white man appearing before her during a domestic violence restraining order hearing:

I'm concerned about the throwing of the rocks and the spitting. I've been doing domestic violence now for 14 years. Usually that is the kind of behavior I see in Middle Eastern clients, but almost - if I read a declaration where they say, 'he spit on me, he threw rocks at me,' almost always it's a Middle Eastern client. If the declaration says, 'he drags me around the house by the hair,' it's almost always a Hispanic client.

While I'm no fan of political correctness, and it takes a lot to surprise me, this one made my jaw drop. What on earth made the judge think it was acceptable to say this, knowing that a court reporter was memorializing her every word? I asked a friend of mine, who regularly practices family law before this judge. He told me that he felt this wasn't so much a result of invidious bias, but rather a misguided desire to showcase her perceived cultural sophistication.

The judge's comments, though, are fairly mild compared to some of my OC courtroom favorites. Here are a few of them, courtesy of the Commission on Judicial Performance:

• One judge asked a defendant, while remanding him into custody, if he knew "what they did to skinny little white boys in jail."

• Another judge was presiding over a case where a father was accused of brutally torturing his daughter while sexually molesting her. While the jury was excused, but with the parties all present, the judge decided to tell the following joke in open court:

Did you hear about the psychologist that had this man in for testing for the Rorschach - if I'm saying it right - test and he said what's this one, and the man looks at him and says that's a man and a woman having intercourse. So, he showed him the next one. He says that's two women making love. He turned over the third one. What's this? Oh, that's a gang intercourse. And he turned over another one. Oh, they are having sodomy, a man and a woman. About that time the doctor said man, I think you're a pervert, and the man looked at him and said don't talk about me, doctor, they are your pictures.

• Yet another judge referred to multiple Hispanic defendants as "Pedro," issued a bench warrant for an Asian defendant in the amount of "ten thousand dollars, or twenty thousand yen," and told an undocumented Mexican national that he had "more names than a Tijuana telephone book."

On behalf of myself, and others who were born without a fully functioning governor, I would like to thank these judges and encourage others to follow in their footsteps. It is a rare occasion when I can compare myself to someone else and come out the winner in a contest of verbal discretion and circumspection.

Dear Mel:

I've listened to some of those recordings between you and Oksana. I want to give you some free legal advice. Your finances must be tight now that your earning potential looks so bleak, and I feel for you. Lindsay Lohan's agents must view you as the second coming for taking away the bad attention from her! (This gives me an idea... maybe you should consider writing an autobiography and call it "The Passion of the Mel." Clever, eh? Self-deprecating humor works great when trying to recover from self-inflicted wounds.)

Now first of all, don't be put off by the "witz" at the end of my name. I know you once complained that the "fucking Jews . . . are responsible for all the wars in the world," but I know that you know that this was an overstatement. Let's call it an unfortunate byproduct of your .12 blood-alcohol level. Besides, check out this link. We've done lots of good things, too. And even the most strident anti-Semitics want a good Semite when facing serious legal (or medical) trouble.

First, the bad news. There is no doubt that your threats to harm Oksana can be charged as felonies under California law. Penal Code section 422 (often referred to as "terrorist threats" or "criminal threats" by those of us in the business) provides:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

Unfortunately for you, this is one of the most overcharged laws in California (or at least in Orange County), and I've seen far less egregious threats filed, including by yours truly when I was a prosecutor.

The good news? We'll have defenses. We could argue that you lacked the specific intent to be taken seriously and/or that Oksana wasn't truly in sustained fear. We'll call it the hothead defense. We show that everyone (Oksana in particular) knows that you're a bit whacky, and that you didn't really mean for her to think that you would actually kill her. But realize that the prosecution will likely be able to counter this by establishing Oksana's knowledge of every violent thing you've ever done, in order to show that you meant it, and that Oksana was genuinely scared. It is a defense frought with peril. No criminal defense attorney enjoys arguing: "You must acquit my client because I've proved to you that he's a total asshole!"

Another possible means of avoiding conviction is more technical. Penal Code section 631 makes it a felony to record telephone conversations unless both parties authorize it. I presume, of course, that you did not. Significantly, subdivision (c) of the statute also makes such recordings generally inadmissible:

Except as proof in an action or prosecution for violation of this section [i.e., illegal taping], no evidence obtained in violation of this section shall be admissible in ay judicial, administrative, legislative, or other proceeding.

There are two problems with this route, however. First, there is an exception (Penal Code section 633.5) that allows one party to a conversation to secretly tape calls that "relate to the commission by [the other party] . . . of . . . any felony involving violence against the person[.]" Arguably, a mere threat to commit violence does not involve violence. But that won't be an easy sell.

The other problem with this defense is that there is some unsettled law in this area. The DA will have a good argument that Penal Code section 631 is bad law. In Bunnell v. Motion Picture Ass'n of America (C.D.Cal. 2007) 567 F.Supp.2d 1148, a federal district court ruled that the statute was preempted by the federal Electronic Communications Privacy Act (ECPA). The decision isn't technically binding on California judges, but there is a fair chance a judge would follow it. We will argue that the statute is not preempted by federal law, and we do have good law our side. In particular, we'll rely on People v. Stevens (1995) 34 Cal.App.4th 56, which held that the ECPA does not preempt California law. But there is no guarantee that a judge would apply the Stevens holding to the specific issue in your case.

I think the best approach might be for you to exercise the "jurisdictional option." Get the hell out of Dodge. Flee to Switzerland, or some other country that isn't fond of extradition. Roman Polanski is getting long in the tooth, and he might give you free rent in exchange for serving as his girl bait. You might even work on a movie together to maintain your skill set.

Call me.

Best regards,

Brian Gurwitz

I enjoyed this video, which is making the rounds on the criminal law blawgosphere this week.

Look at the facial expressions of the blond police officer. It appears she thinks her angry colleague is nuts, and is afraid she's going to break out in laughter. I suspect she's more afraid of him than she is of any looming bubble assault.

My favorite pathological curmudgeon, New York criminal defense attorney Scott Greenfield, has a good post today about an Orange County woman who was sentenced to a year in jail following a jury verdict convicting her on two felony counts of false imprisonment by fraud or deceit, and two misdemeanor counts of making a false police report. Reporter Larry Welborn covers the story here in the Orange County Register.

In sum, after the defendant and her boyfriend broke up, she sent herself threatening text messages using a pre-paid cell phone she purchased using the name of the boyfriend's sister-in-law. Based on her deception, the police made repeated arrests of the boyfriend and sister-in-law, including three arrests of the sister-in-law alone. Both were forced to spend thousands to post bail.

The true victims in this case (as opposed to the crazy woman the police believed) conducted their own investigation that proved their innocence. But even after they did so, the sister-in-law was arrested again based on a warrant that remained in the system.

Greenfield aptly writes:

Continue reading "When Crazy Meets Lazy " »

I would pay this guy for the honor of representing him:

(H/T to my new best friend, Jamison Koehler, who has a knack for giving me material to pilfer.)

I have long believed that eyewitness identification is extraordinarily unreliable. This is not a sudden epiphany that I had when I became a defense attorney. To the contrary, my opinion is largely due to my former work as a prosecutor.

I intend at some point to write about several cases that I dealt with as a deputy district attorney when I was handling appeals and habeas corpus petitions. In each case, evidence came to light after the defendant's conviction that either proved his innocence conclusively, or made it so unlikely that the defendant committed the crime that any ethical prosecutor would agree to set aside the conviction.

But nothing I could write about the problems of eyewitness testimony could be nearly as persuasive or informative as the video posted below, which I saw this morning on Washington D.C. attorney Jamison Koehler's terrific blog.

The race for Orange County Sheriff became a little more interesting today when the Santa Ana Police Officers Association withdrew its support of Bill Hunt. The police union criticized his recent work as a defense investigator for Victor Lua, a man charged with robbery. Prosecutors have alleged that Luna is a member of the F-Street criminal street gang.

Union president Joe Perez expressed his outrage to the press by exclaiming: "He shows up [to court] and questions my officer's expertise, this is a man who's going to be sheriff?" This statement seems unusually defensive, since Hunt hasn't even testified in the Lua case. He simply appeared in court to assist Lua and his attorney at the preliminary hearing.

Hunt responded by telling the OC Register: "Law enforcement is a little myopic. Not everyone who gets arrested is guilty or found guilty. When I'm sheriff, everybody who comes into our custody will have his rights protected." He similarly told the OC Weekly: "I'm the constitutional candidate. Everybody is entitled to their Sixth Amendment constitutional rights and the right to a fair defense. I'm simply standing up for that here with someone who I believe is innocent."

Hunt deserves credit for his response. If he is elected Sheriff, his leadership will be a little more enlightened because of his work as a defense investigator. People often say that prosecutors should have to put in some time as a defense attorney. Maybe police officers would similarly benefit if they had to work as investigators for people facing trial.

If anyone ever wants to know why investigating police misconduct is so difficult, look no further than Perez's statement to the press. He thinks it is an unforgivable sin to "question" his "officer's expertise." He should realize that normal people work every day with the understanding that others will scrutinize their performance. Just do good work, and you can be confident that you'll be fine when the scrutiny is complete.

I'm here to extend my apologies to the Texas judicial system. I've mocked it recently, here and here.

But I just learned (thanks to Houston blawger extraordinaire Mark Bennett) that juries in Texas get to decide the disputed facts that determine whether evidence should be suppressed as the result of an illegal search or seizure. Read all about it here.

In California (and most everywhere else), it is the judge who decides whether the officer was telling the truth when he testifies (for example) that he observed the defendant make an illegal lane change before he pulled him over, or that the defendant freely consented to the search of his vehicle, knowing that it contained 10 kilos of cocaine. California juries aren't involved in resolving these facts.

Continue reading "Today, I Love Texas" »

I read of Solicitor General Elena Kagan's impending United States Supreme Court nomination on Jewlicious.com, which informed me in the same article of the "totally unrelated news" that Mike Myers has been slated to be the voice of Shrek in the latest sequel coming out this summer.

Here is the photo they used to illustrate the news:

I suspect this is a huge prank. If Justice Kagan sounds vaguely like Dr. Evil during her questioning when the Court opens in October, my suspicions will be confirmed. You heard it here first.

In other news, Justice Ginsberg's self-esteem is higher than its been since she was 17.

Below is a video of Seattle police officers abusing a robbery suspect, a man they later realized was innocent. The suspect appears to be of Mexican descent, at least to one of the officers who threatened to "beat the fucking Mexican piss out of you, homey!"

Predictably, law enforcement apologists will insist: (1) police officers face dangers that non-cops can't understand, and this justifies stomping on the head of seemingly cooperative suspects who engage in the slightest voluntary or involuntary movement while detained, and (2) the "beat the fucking Mexican piss of you, homey" epithet was an aberration, something unlike anything ever uttered by a Seattle police officer.

Continue reading "A Few Bad Cops (Seattle Edition)" »