Orange County Criminal Defense Lawyer Blog

Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." It is commonly thought that a defendant is entitled to a "jury of his peers" but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group "composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds." This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

In our case, Hispanics are not excluded from serving on juries so the Strauder case would not specifically apply. But the ideas central to that case, namely that the defendant is entitled to be tried by his "peers" certainly does. Central Justice Center, where the case was tried, is located in the city of Santa Ana which is more than 78% Hispanic. So, that brings us to the BIG question: why are Hispanics not making up more than 78% of the jury pool and does it matter?

I would have loved to have another jury watching the same case at the same time, but made up of the defendant's actual peers. Would the verdict have been different? We don't know but it certainly would be interesting to find out.

The court system has suffered profound funding losses in the past several years. Year after year the legislature cuts the court's funding until now it has reached crisis proportions. Layoffs of court personnel have caused delays in access to the court by the public. Delays will soon turn into denial of services. Entire courthouses have been shuttered in an effort to live within the funds allowed. Civil trials have been postponed to allow the waiting criminal trials to take precedence in the few available courtrooms.

Funding the court system isn't very popular with politicians. After all, when politicians overstep their authority where does the public go to put a stop to excess? The courts are the answer to many societal problems. Where does a civil society settle their individual grievances? It's the court system that is the glue which holds a civilized society together. The failure to adequately fund the court system won't just deny criminal defendants their Constitutional Rights but will add to the breakdown of society. What will people do when they don't have access to a forum to solve their problems?

The California State Legislature must find the money to fund the system adequately. That means in their eyes, the court system needs to be a priority, not just a necessary evil. We will all be very much poorer if the recent trend of cutting the court's funding continues.

What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won't go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn't succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn't have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant's story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don't get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don't reach a verdict then all of our time, the taxpayers' money, and all of our effort has been wasted. You, the Hold Out Juror don't want that do you?

Powerful forces are applied to the Hold Out Juror. It's not often that mistrials are declared when it's only one juror facing down the other eleven. Yet, if the Hold Out Juror stays true to his own beliefs and true to his oath to vote an individual verdict based only on the evidence as he sees it, justice is served even by a mistrial. For the Defendant, the Hold Out Juror is truly a hero who sometimes is the only one between him and an unjust verdict.

Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a "no nonsense" approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn't see anything funny about her attitude and set her bail at $20,000.00. She turned and said "adios" to the judge. After turning away, she realized that her bail had been set at an amount she couldn't make she protested and told the judge "F....You". Now this, obviously, didn't sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge "the finger". This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

The lesson to be learned from this dimwitted Defendant is that much like a golf caddy, the Defendant should: show up, keep up, and shut up. These are words to live by when appearing in court or on the golf course.

Drones are unmanned flying platforms. From these flying vehicles missiles can be launched, cameras installed so they are aerial surveillance vehicles, and listening devices activated. Developed for the battlefield, they are deadly when used against targets while not endangering their human pilots. The drones are controlled remotely from across the ocean or across the street. The issue for the United States is going to be: are they to be used by law enforcement in this country for surveillance and searches without a search warrant.

Traditionally, a search warrant must be obtained before the area where one has a legitimate expectation of privacy is searched by law enforcement. Probable cause must be established to a judge's satisfaction that a crime has been committed, is being committed, and that evidence of the crime will be found in the area to be searched. The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. What happens when a drone as small as a hummingbird is used by law enforcement to perch outside your bedroom window and transport video back to the handlers at headquarters?

In the last decade the protections of the Fourth Amendment have been eroded until they seem to be non- existent. Checkpoints are allowed for all types of potential crimes from driving on a suspended license to driving while under the influence. Motorists are stopped, questioned and detained without a shred of probable cause yet the courts have said such governmental intrusions don't violate the citizenry's right to be free from unreasonable search and seizure.

What will the Supreme Court do when a bird size drone flies into the window of a house, takes video of the interior, and it shows evidence of a murder. Will the Court throw out the murder conviction because the drone's handlers acted without a warrant? The worse the case that goes up on appeal the worse the law is that results. Americans shouldn't give up their liberties, including those under the Fourth Amendment, without putting up strong resistance. The ends do not justify the means. Drones may be appropriate on the battlefield but they shouldn't be part of the local police force since the danger of misuse and abuse it all too apparent.

The recent shootings in Connecticut have been used to call for gun reform. The critics of the Right to Bear Arms guaranteed by the 2nd Amendment are calling for the abolition of gun owners' right to own firearms. Restrictions on gun ownership are sought in an effort to curb gun violence. These calls are in response to the horrible crimes which have been perpetrated on innocent children and bystanders in our schools and public places. Guns are portrayed as the reason for the violence. I would contend that gun control in the form of restriction of the sale and possession of automatic weapons and weapons that contain multiple shot magazines are already regulated and can be even more restrictive. Not because they are the cause of these shootings, but because no law abiding citizen needs to own a firearm that can fire many times without reloading. We don't live in a war zone and don't need to be equipped to do combat. However, guns are not the inherent evil at work in these tragedies. Untreated or under treated mental illness is.

Almost every mass shooting that has been committed in recent memory has been perpetrated by a gunman suffering from mental illness. "Socially awkward" is a phrase used in the press because it is politically correct. In reality, it appears that it is a euphemism for mental illness. Many times individuals who have significant mental illnesses are being under treated or not treated at all. People suffering from mental illness often don't want to take their medication because of the effect is has on them. Medication also brands the person taking the medication as mentally deficient in some way. Negative social stigma is a deterrent to taking medication or even being diagnosed.

Society has chosen not to invest in mental health for our children or adults. Many of the homeless people on the street suffer from a mental illness. State legislators have chosen to close mental health facilities in order to save money. Instead of saving money, this policy choice has cost more money and lives. We must reexamine our priorities and commit to better funding to meet the mental health challenges of our people. Treating the symptom, such as gun violence, is not the answer. We need to treat the cause, mental illness. If we find more treatment for those afflicted with mental disease we won't need the draconian gun control measures currently advocated as "the solution".

The police reports pain an ugly picture. They clearly show that the Defendant is guilty. What to do? How does your attorney get the District Attorney to reduce or dismiss the charge against you? The experienced trial attorney tries to paint a picture that accurately shows the client for who he is and not just for what he did. Many times good people do something ill-advised or out of character. These "bad judgment" moments can have devastating life-long effects on people who deserve a second chance. How to get the client that second chance?

Most important is the charge against the client. Sometimes no matter who you are, or the devastating effect on your future, or the fact that even millions depend on you, the result is mandatory if you are convicted. However, very often these facts can and do make a difference to a prosecutor who is seeking to do justice and not just gain a conviction. How to reach that prosecutor is the key.

Reaching a just outcome requires the defense attorney to paint a picture. Depending on the circumstances it can be a picture of the facts of the case and establish the facts that lessen the responsibility of the defendant. It might involve proving that there were contributing factors which were not the fault of the defendant or showing the prosecutor the facts dictate the client deserves consideration. The second prong of the defense attorney's job is to breathe humanity into the ink on the police report from the client's perspective. The trial attorney needs to show the prosecutor the defendant is human. He is a good person, perhaps he has done community service (before or after the crime), been a role model in the community, or won awards in business and the disastrous effects a conviction will have on his individual future.

The defense attorney's job isn't just to get an acquittal or public apology. More often the good, even great, criminal defense attorney's task is to make the prosecutor want to give the client/defendant a break. There is a need to establish the facts that benefit the defendant, establish the humanity of the defendant, then a plea of leniency won't fall on the deaf ears of the prosecutor. How well a criminal defense attorney does these things often will determine the defendant's fate.

A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn't have a "one size fits all" formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side's lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a "good" jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It's not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge's instructions; it's about finding the juror who will listen to your side's facts and argument and believe the "right" thing to do is vote for whatever side you, the lawyer, is advocating.

Who hasn't heard that lawyers like to hear themselves talk? Lawyers like to talk. Lawyers like to think they give brilliant oratory. Lawyers are "wordsmiths" fashioning eloquent arguments for their clients to receptive juries that don't even need to discuss the facts or the law in deciding the fate of the defendant after listening to the brilliant words of the lawyer. Well that part is just on television. The fact is, lawyers do like to talk and do like to listen to themselves talk. Many lawyers are their own best fans. But, many lawyers fail in the listening to others department.

Listening to our clients is a skill that is under-appreciated and underutilized by most lawyers. Our clients tell us what happened in their own words. They were there. They know. The client may have expertise in an area that the lawyer doesn't. A great lawyer knows when to be quiet and just listen.

Recently, two separate instances proved the value of listening. First, the client kept saying that he didn't confess like the police report says he did. The client's previous lawyer had obtained but not listened to the client's recorded statement to the police. The lawyer suggested he take a plea deal for six years in prison because of the confession. When the lawyer wouldn't listen, the client changed lawyers. The first thing I did was to listen to the client and the second was to listen to the recorded statement. The police reports were just simply not true. The client hadn't confessed at all. In fact, the client had adamantly denied any involvement in the crime. Once this was brought to the attention of the prosecutor the case fell apart and it was dismissed. The second case involved the client with the "spotty" record. He said he wasn't at the crime scene when it happened. He told this to the police but was confused about the date since it occurred sometime prior to his interrogation. Careful listening on my part led to even more careful investigation. Interviewing independent witnesses, finding time sheets that confirmed the client's alibi, and bringing these items to the attention of the prosecutor also led to a dismissal of the "strike" charge against the client.

It not only "helps to listen", for a lawyer it's essential.

When the police arrive at a crime scene the yellow tape goes up securing the scene. We've all seen it on the television show, CSI. In fact, according to CSI Los Angeles, Miami, Navy and everywhere on television it's the science of the crime scene investigation which solves the crime. The rest of the actors are just the means to the end. It's the DNA, fingerprint analysis, and countless other scientific advances that lead to the solving of the crime. But, what happens to the evidence once it's collected?

It's the Crime Scene Investigator's job to collect the evidence. This evidence can be identified by the first responders, the detectives at the scene, and the CSI people themselves. Some of it is located simply by drawing a chalk mark around it and some has to be found by means of instruments. Once collected it's placed in collection containers. These can be as simple as paper lunch sacks. For example, bullet casings are often placed into paper lunch sacks. The container is then closed and secured with evidence tape, initialed by the collector, and placed into an evidence locker for later analysis or use in court.

But, what happens if the evidence is collected and then given back to the victim? For example, if a wallet is stolen, and the culprit is found a short time later with the wallet often times the police will give the wallet back to the victim. Sometimes photographs may be taken to preserve the look of the item but the possibility of forensic analysis is lost forever to the suspect. DNA analysis is no longer a possibility once the item is returned without any attempt to preserve the item for analysis.

The police do not have a duty under the law to collect evidence. It might be said that the police should collect evidence but if they don't it's not a constitutional violation of the suspect's right to due process; it just might be bad police work. The United States Supreme Court has recognized that once the evidence is collected then due process imposes a duty on the prosecution to preserve "material, exculpatory evidence". That means if the evidence is important and relevant to innocence, the failure to preserve evidence which could show a person's innocence make the prosecution subject to sanctions. The sanctions could even be as drastic as dismissal of the charges.

In short, CSI can be critical to the defense and the prosecution. Once the evidence is collected if it is exculpatory (possibly leading to a finding of innocence) the police and prosecution can't just throw it away or return it to the victim without risking substantial sanction for such failure. Of course, the bigger problem for the defendant is the fact that he can no longer prove his innocence and may go to prison because of that failure to preserve collected evidence. An experienced defense attorney has to be aware of this issue and ensure that CSI is a full two step process, collection and preservation for both prosecution and defense.

There are some cases that can be subject to a resolution process called Deferred Entry of Judgment. This is commonly referred to as DEJ. The process involves the Defendant pleading guilty to the charge(s), continuing sentencing, undergoing some type of education, and staying out of trouble for a specified time. Upon completion of the education and passage of required time, the Defendant can withdraw his plea, enter a not guilty plea, and the case will be dismissed. Additional requirements can be added to the process depending on the circumstances. For example, the Defendant can be required to provide a DNA sample, undergo drug testing, perform community service and anything else that might be appropriate under the facts and circumstances of the case.

DEJ is of great benefit to the Defendant. While it requires a guilty plea there isn't any conviction because sentencing has not occurred. As long as the sentencing is postponed and does not take place there isn't any conviction and the guilty plea does not stand as long as the DEJ is finished. However, the major down side to DEJ is the fact that if the Defendant does not complete the ordered tasks, the court will proceed to sentencing and the conviction is entered. No further proof requirement is needed since the guilty plea has already been entered and the court can simply proceed to sentencing.

Ambien is a commonly used sleep aid. What isn't commonly known is that there are a significant number of reported cases of people "sleep driving" after taking Ambien. In the recent case of >People v Mathson a California Court of Appeal, for the first time, has ruled on a defense of sleep driving while under the influence of Ambien.

Mr. Mathson took Ambien at bedtime and later was found guilty by a jury of driving under the influence of drugs, a violation of California Vehicle Code (CVC) Section 23152(a). On appeal, the Court noted that voluntary intoxication is not a defense to driving under the influence. However, if after voluntary ingestion of a drug such as Ambien there is an unconscious act, like sleep driving, is it a crime? The Court stated the non-controversial rule that involuntary intoxication is a defense to CVC 23152(a). The controversial part of the ruling is that the Court suggested there be a jury instruction that states: "A person is involuntarily intoxicated if he or she willingly and knowingly ingested a prescribed drug and did not know or reasonably could not have known of the drug's intoxicating effects".

In essence the Court ruled that if the Defendant was aware or should have been aware of the side effect of Ambien, sleep driving, then it isn't involuntary intoxication (which is a defense). However, if he didn't know or have reason to know that Ambien could cause sleep driving, then even though Mathson voluntarily took the drug it was involuntary intoxication which is a defense to driving under the influence. Many factual differences occur in every case and while it is now clear that sleep driving can be defended successfully every case will turn on it's own particular facts.

Many of our veterans have returned from service to our country with mental and physical disabilities. Sometimes these service related disabilities result in criminal charges being filed. The search for justice in the criminal justice system for our veterans can be difficult. Many prosecutors give lip service to the returning veterans' ailments but simply dismiss them as not relevant to the criminal charges before the court.

The key to getting the prosecutor to appreciate the veterans' symptoms is to provide medical and military documents which substantiate the underlying condition(s). First the defense has to prove to the prosecutor that the veteran is, in fact, a veteran. Then the question is, so what? The answer to that question is that a veteran deserves special consideration because of the service to the country. To translate that fact into action means the defense has to prove to the prosecutor the veteran served and did so honorably. But even more important is the need to prove the criminal conduct is the product of the service.

Crucial to the defense of any veteran charged with a criminal offense is meeting the challenge of showing that whatever disability the veteran is suffering from is the reason he or she committed the crime. Veterans of combat may be diagnosed with PTSD (Post Traumatic Stress Disorder) or TBI (Traumatic Brain Injury). Even after a diagnosis, the key is to prove that the criminal act was caused by the disability. For example, the veteran wants to kill himself. So he takes drugs and intends to kill himself by driving into a wall. Unfortunately, he hits another motorist first injuring that motorist. Why did he want to kill himself? If it's a combat related mental issue, it can make a difference to a prosecutor who understands the conduct. If it's a theft case where the veteran steals because of his mental disorder it has to be explained as such. It is the defense attorney's job to make sure the prosecutor understands this connection.

Every veteran deserves to have his service count for more than just the years in uniform. That doesn't mean that just because one served he gets a "get out of jail free card". What it should mean is that if the time served in the military results in a disability that causes criminal conduct as a civilian after military service, the veteran 's should be afforded additional help.

Many prosecutor's offices, including the Orange County District Attorney's Office, now have special Deputy District Attorneys who are designated to prosecute Driving Under the Influence of Drugs cases. The violation of California Vehicle Code Section (CVC) 23152(a) can consist of a combination of alcohol and drugs causing impairment in a driver's ability to drive. Increasingly DUI charges are being brought against people who have not consumed any alcohol but are solely accused of driving under the influence of drugs.

At first, the image that comes to mind is that of a drug crazed driver who is under the influence of an illegal substance such as methamphetamine or heroin. However, the District Attorney's Office is targeting not just those drivers but the driver who has taken prescription medication. A driver who takes a prescribed medication that impairs his ability to drive his vehicle safely is also subject to prosecution for DUI. A note written on a doctor's prescription pad is not being taken as a defense by prosecutors. Even doctors themselves are being prosecuted for DUI if their blood is found to contain prescription drugs following an arrest for DUI.

Many medications commonly warn of possible driving impairment after ingestion. However, the fact that a driver has consumed the medication and it is found in the blood is not the end of a driver's defense to a charge of DUI. The blood must be tested to determine if the level of the prescribed drug in the blood is above the therapeutic level. If it is above the therapeutic level it can lead to the conclusion that the symptoms the driver is exhibiting is the result of the medication. However, even that is not the last word in the defense of DUI drug cases. If a driver has taken the medication found in the blood for some time or suffers from a severe form of whatever the medication is prescribed for, the above therapeutic level amount may be explained as not being the cause of the symptoms the officer is seeing at the time of the arrest.

To successfully defend a DUI drug case expert testimony will be needed. The symptoms the officer sees must be explained as caused by something other than the drugs/medication in the system. Many medical conditions can cause symptoms that, to the untrained (in medicine) eye, be mistaken for impairment due to drug intoxication. A medical doctor or other expert's opinion will be necessary to counter the conclusion drawn by the police officer and even the crime lab expert (who is not really an expert at all in the effects of medication). The success of the case will depend on convincing the jury that what the officer is seeing as impairment is a medical condition treated by the drugs in the system and not caused by the drugs in the system.

The usual case of driving under the influence involves alcohol. The claim by the police or District Attorney is that the driver is not only under the influence but has a blood alcohol level of more than the legal limit of .08 percent. More and more often people are being arrested for driving under the influence of prescription drugs that have nothing to do with alcohol.

Many times a doctor prescribes medication for the patient. The patient is told don't take the medications with alcohol. The patient follows the doctor's orders but still is arrested for being under the influence of drugs while driving. Can the patient/driver be successfully prosecuted for driving under the influence even if the doctor's orders are followed and the patient doesn't intend to drive under the influence? The answer can be, yes. How can this be?

Driving under the influence of drugs is a general intent crime. That means the patient/driver doesn't need to intend to drive while under the influence of drugs, he/she just needs to willfully drive the car after intentionally taking the medication. There isn't any specific intent to drive while under the influence needed.

There are two main methods to successfully defend a driving under the influence of drugs charge. First, the argument should be that the amount of drugs in the patient/driver's system is not over the therapeutic level needed to treat the condition, and at that level the driver is not impaired for the purposes of driving a motor vehicle.

The second line of defense can be that the cause of the symptoms leading to the conclusion that the patient/driver is under the influence is the disease or medical condition and not the medications used to treat the condition. In other words, the symptoms exhibited by the patient/driver are not caused by the medications but by a disease over which the defendant has no control. Many physical maladies have symptoms that appear to the uninformed to be caused by excessive ingestion of drugs, prescribed or not. If expert testimony can be had to refute the officer's claim of DUI but instead be "driving while diseased" a successful defense can be had.