Orange County Criminal Defense Lawyer Blog

Getting assigned to vice as a police officer is tough assignment. Often times the required duties take the officer into dangerous situations. Quick thinking is often a necessity. Tension can build to the breaking point. How to relieve all that tension? The vice cop has found the answer. He gets a massage.

Massage parlors are apparently a hot bed (pun intended) of prostitution activity. Many massage salons are being raided by undercover police officers. Of course, they're only under cover for a short period of time. But, while being uncovered, I mean undercover, they get their muscles kneaded, their backs oiled, their limbs stroked, hot towels applied, and tired sore bodies cared for from head to toe, all by young women who tend to their needs as though they were real paying customers without a law enforcement agenda. The tax payer dollars paid to find prostitution occurring behind closed doors and under warm towels is truly money well spent. Or is it?

Vice squads are combing the massage salons looking for young women who would offer sexual services in return for money. Negotiations for these services have to be realistic in order to arrest the offending party. In order to enforce the realism, undercover officers of the vice squad must frequent various massage salons and put their bodies through torturous episodes as described above. Once sufficient stroking has occurred, how long and how much is subject to ones' individual ability to withstand the torture, the "bust signal" can be given. One has to hope that the "gotcha" moment doesn't come too soon and the bust has to be aborted due to circumstances beyond the undercover officer's control. In that case, one would assume, the bust does not occur and the tax payer money spent on the massage wasn't wasted because, well, the officer did get a good massage.

Many vice officers have to repeatedly go into a suspected illicit massage salon before making a bust for prostitution. Why? Because the erstwhile prostitutes are on to the scheme and won't agree to an act of prostitution unless the vice cop is a known customer. So of course, the vice cop(s) have to spend lots of taxpayer money in order to put a stop to this conduct. All the while, the tension of their day is dispelled by the tireless work of the masseuse. In the pursuit of a happy end to this episode it's the taxpayer who pays the bill. But, at some point, if the taxpayers only knew where their money was going don't you think the happy end to this story would be to tell the cops to go catch real criminals with our precious tax money?

Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn't commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn't that DNA exonerated Morton, but that other evidence that was in the DA's possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton's innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton's file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim's credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim's credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim's home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim's property and used the stolen credit card and it wasn't Morton, then maybe Morton wasn't the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.

The law in this area is clear. The United States Supreme Court in Brady v. Maryland established in 1963 that the prosecution had to voluntarily turn over all evidence to the defendant which could, not would, but could, seemingly tend to exonerate the defendant. The problem comes when the prosecutor doesn't fulfill his obligation to turn the required evidence over to the defense. When this violation occurs the defense usually doesn't even know it happened. The suppression of exonerating evidence violates the public trust in the fundamental fairness of the criminal justice system. If there isn't trust, there isn't confidence that justice will be done. At that point, the people will not submit to the judiciary. Vigilante justice and chaos can become the norm and not the exception.

Every defense attorney must be aware of the possible misuse of the public trust by the prosecution and take steps to make sure their client doesn't become the next Michael Morton. A formal discovery motion compelling disclosure of all possible evidence will force the prosecutor to tell the judge in open court that he has given all possible evidence to the defense. If the prosecutor is prepared to boldly lie to the judge then, truly, the system is forever tarnished. Few prosecutors have the meanness of spirit and willingness to state openly a falsehood which could be discovered at a later time. Even so, the defense must make sure the system is working and prevent the wrongful conviction of their clients.

As almost everyone on planet earth knows, Dr. Conrad Murray was convicted of Involuntary Manslaughter in the death of Michael Jackson. On November 29, 2011, Dr. Murray was sentenced to the maximum term of four years in State Prison. How did the judge determine that four years was the appropriate sentence?

The cynical among us might just say that because the deceased was the most famous pop star in the world that the judge would have been crazy to give Dr. Murray anything less than the maximum. Those of that opinion could easily conclude the public expected the maximum and therefore why would the judge do something that would enrage the public and possibly cost him his job in the next election? Those cynical enough to believe that would think the discussion would end right there. But, what did the judge have to do under the law in order to justify the maximum sentence? The answer can be found in the Rules of Court.

The Rules of Court set forth the criteria affecting probation (Rule 4.414). Dr. Murray was technically eligible for probation, no matter how unlikely that might have been as a practical matter. There are two sub-sets to consider: facts that relate to the crime and facts that relate to the defendant.

Factors relating to the crime include, but are not limited to: the nature, seriousness, and circumstances of the crime...., and; whether the defendant was armed or not, and; the vulnerability of the victim, and; whether the defendant inflicted physical or emotional injury, and; the degree of monetary loss..., and; whether the crime was committed because of an unusual circumstance, and; whether the defendant was an active participant, and; whether there was great provocation making unlikely the crime would re-occur, and; whether the crime was sophisticated or professional on the part of the defendant, and; whether the defendant took advantage of a position of trust or confidence to commit the crime.

Facts that relate to the defendant are also important for the judge to consider. These include: prior criminal conduct, prior performance on probation, willingness to comply with the terms of probation, ability to comply with reasonable probation terms, the likely effect of imprisonment on the defendant's dependents, the adverse collateral consequences on the defendant's life from the felony conviction, remorsefulness of the defendant, and the likelihood of danger to others if defendant is not imprisoned.

If the judge determines he wants to imprison the defendant he has to select the proper term from the range set forth in the crime itself. In this case it was either two, three, or four years. The court selected the upper, or maximum, term. This is based on any relevant factor including circumstances in mitigation or aggravation. The judge can look to the case record, the probation officer's report, other reports or statements, and evidence introduced at the sentencing hearing. (Rule 4.420) In effect, the judge could do anything he wanted due to his ability to look at all "relevant" evidence. This is where the judge's personality, personal and professional background, and own opinion on the state of the evidence weigh heavily on his decision.

As one can see from the above, the four year maximum term was almost a foregone conclusion. The sentencing hearing had to go forward but one could pick out many factors that can be found in the Rules of Court which foretold which way the judge was going to go. No one should have been surprised that Dr. Murray got the maximum. With public sentiment and Dr. Murray's own lack of remorse why should the judge have given him a break? The answer is clear; there wasn't any reason to and he got what he must have expected.

Dr. Murray killed Michael Jackson. No doubt about it since the jury found him guilty of involuntary manslaughter. He got sentenced to the maximum term of four years. Dr. Murray won his case when he got convicted. How can I say that when he went through a hard fought trial that lasted weeks and cost him and the taxpayers millions of dollars? According to the evidence, he lied to the paramedics, failed to call 911 in a timely fashion, treated his patient with an extremely dangerous drug under circumstances that failed to meet the most minimum of medical standards among a host of other omissions and commissions. So involuntary manslaughter was the charge and guilty was the verdict. Who says the Los Angeles County District Attorney's Office can't win the big ones? Who says that the District Attorney's Office loses one high profile case after another? They got their man here didn't they? Well, yes and no as far as I'm concerned.

Yes, the LADA got a conviction as charged. But, why only charge Dr. Murray with Involuntary Manslaughter? Why not seek a Second Degree Murder conviction? Why not charge both Murder and Involuntary Manslaughter? Based on the facts as presented by the prosecution, the jury could very easily have found Dr. Murray guilty of Second Degree Murder. Why? The real question is why not?

To find a defendant guilty of second degree murder you must look to CalCrim Section 520 which sets out the elements of Second Degree Murder. To prove this is the real crime Dr. Murray is guilty of the DA needed to prove the following: The defendant committed the act that caused the death of Michael Jackson and when he acted he had a state of mind of malice aforethought. The relevant malice element here is implied. Did Murray's actions consist of the following: 1. Did he intentionally commit an act, and; 2. The natural and probable consequences of the act were dangerous to human life, and; 3. At the time he acted, he knew his act was dangerous to human life, and; 4. He deliberately acted with conscious disregard for human life. Ask yourself, from the facts of this case, wasn't this the proper charge?

As a final thought, even if the DA had fallen short on one of the above elements for murder, would he have "lost" the case? The answer is absolutely not. Why? Because Involuntary Manslaughter is a lesser and included offense of Second Degree Murder. Therefore, if the DA had charged both Involuntary Manslaughter and Murder the jury could have considered both crimes in deliberations. Dr. Murray wouldn't walk free under any circumstance if both were charged. But, he didn't have to risk the possibility of a murder conviction and thus life in prison because the DA never charged him with anything more than Involuntary Manslaughter. When the charges came out from the DA, Dr. Murray had to be smiling because he won before the first witness was ever called.