Orange County Criminal Defense Lawyer Blog

The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor's purse and the class is asked to describe the suspect. It's incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It's happened to all of us.

Stress of an unexpected, even scary, situation can affect one's perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely "wrong". Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn't mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn't always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a "six pack". The eyewitness is asked to view the subjects, admonished it's just as important to exonerate the innocent as to find the guilty person and just because a picture is in the "six pack" it doesn't mean the perpetrator's photo is contained in it. When that doesn't happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent "six pack" ? Isn't that overly suggestive? Isn't that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

In spite of the above, the Supreme Court has decided in Perry v. New Hampshire that the "reliability of relevant testimony typically falls within the province of the jury to determine". In plain terms, unfairness, unreliability, and suggestiveness as well as due process challenges to the identification procedure are now points to be argued to the jury. Don't look to the judge for help. Look to the best criminal defense trial lawyer you can find because that is where the case and the identification will be decided.

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.

Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was "How To Defend A First Time DUI". Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn't necessarily shared by the lawyers in the class because they don't have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What's a good settlement?

The hardest issue for the lawyer teaching other lawyers is to make the class interesting and informative. Maybe that's the challenge for every teacher. But, lawyers being who they are, become a critical crowd and one that already feels they know what they are doing, even when they don't. However, I guess the crowd of lawyers liked the "inside" knowledge and tips I gave them because they asked me back.

"A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds." Code of Civil Procedure Section 231.5.

If a party (represented by his or her lawyer) uses a peremptory challenge in an effort to systematically exclude a member of a recognizable group, it is error under both the California State Constitution and the United States Constitution. But, as a trial lawyer, I thought for years that I just wanted fair, impartial, open minded jurors. I thought race didn't matter if someone was "fair". I was wrong. Race matters even more than the strength of the evidence or the law given to the jury by the judge.

To date, I have tried well over one hundred and seventy five jury trials. These trials have been for almost every conceivable charge, from assault and battery, to shop lifting, to sexual assault, to burglary to even health code violations, all the way to first degree murder with special circumstances. In each of these trials the jurors swore they would view the evidence impartially, without bias for or against the Defendant, and would apply the law equally as instructed by the judge.

It has become evident that what a juror sees is influenced by the color of his or her skin. Necessarily, it's not just the color of one's skin that matters to the perceptions of the juror, but all that comes with it. While it's a gross generalization, I have found that the life experiences of a person of color make the conclusions drawn from evidence presented different from someone who has not seen the world through those eyes. If a Defendant is African-American that Defendant wants a jury that has at least some representation from his African-American community. It can and often does make a difference in the outcome of the trial.

One of the distressing facts in defending African-Americans in the Orange County Court system is the simple fact that according to the 2010 census only 1.7% of the population of Orange County is of African-American descent. How does an African-American Defendant get a jury of his peers in Orange County? The truth is, he doesn't. It's not a sinister plot to deprive such a Defendant of his right to a fair trial. There just aren't very many African-Americans who reside in Orange County. Furthermore, it's not grounds to change venue just because the population is so lacking in African-Americans.

This opinion is just my opinion. I want fair and impartial jury panels. It can and does happen. But, to the African-American Defendant who is facing trial in Orange County, who looks at the courtroom full of potential jurors and doesn't see anyone who looks like him, it can be a legitimate concern.

A Defendant has a right to have a jury of his peers decide his fate. Twelve people drawn randomly from the community who come to the courthouse and vote on the guilt or innocence of the accused. The Constitution requires the selection come from a cross-section of the population of the area served by the court.

Source lists are compiled from voter registration roles, driver's license lists, utility company lists, telephone directories, and Department of Motor Vehicles' identification card records. Generally speaking, a prospective juror has to be a citizen of the United States, live in California and be a resident of the jurisdiction in which the case is being tried. The juror cannot have a disability which would prevent him or her from judging the case, speak English well enough to understand the proceedings, not be convicted of a felony or of malfeasance in office, not be the subject of a conservatorship, and not be simultaneously serving on a grand jury.

The picking of a jury requires the attorney to decide who shall sit on the jury to decide his client's fate. The prospective jurors must assure the court that they can decide the case based solely on the law and the evidence. The lawyer looks for body language signals as well as the actual answers to the questions posed to the prospective jurors. It isn't always as obvious as a rolling of the eyes or a shrug of the shoulders. Many times it is the inflection of the voice or a shifting uncomfortably when answering the questions.

Finally, though, it's the lawyer's gut instinct which determine who stays and who goes. In a non-life sentence case the number of challenges a lawyer can make is limited to ten. That is, a lawyer can excuse a juror for no apparent reason up to ten times in most cases.

This blog is continued on Part Two.

Unless a defendant is charged by way of a grand jury indictment he or she is entitled to a Preliminary Hearing. At a Preliminary Hearing a judge determines whether there is sufficient evidence against a defendant to justify going to trial. It is often called a probable cause hearing. Officers must testify to evidence and be subject to cross examination by the defendant.

Before Proposition 115 was passed several years ago, a Preliminary Hearing was thought to be a critical stage of the proceedings. It was a time when the defense could challenge the evidence and have a "free shot" at the witnesses on cross examination. The law has changed and how a criminal defense lawyer represents his clients has to change with it.

In deciding whether or not to conduct a Preliminary Hearing, a defendant needs to think about what he want to get out of it. For example, if a defendant wants to question the police officer about descriptions given by a witness he would not waive Preliminary Hearing. If a defendant wants to present an affirmative defense at the Preliminary Hearing in order to try and prove his innocence, a Preliminary Hearing is required.

The problem with the Preliminary Hearing is that the standard of proof for the prosecutor is the low level of reasonable suspicion that the defendant committed the crime, that even if the judge thought the defendant was not guilty he still would hold the defendant to answer for trial. The issue for the judge isn't that the case is weak or the defendant won't be proven guilty at trial. The standard is only, is the suspicion there? The District Attorney does not have to put on all his evidence at the Preliminary Hearing so the judge will normally ignore the fact that the standard has been barely met. He can even comment that if he had to decide guilty or not guilty he would vote not guilty. That is little comfort to a defendant heading for a jury trial.

Waiving or giving up the right to have a Preliminary Hearing is acceptable if the police officer is simply going to recite what is in his report, because it is not going to be helpful to the defendant. However, there is a danger to the defendant in conducting a Preliminary Hearing, and a good defense attorney needs to consider the consequence that the District Attorney can charge a defendant with new counts if he has proven them at the Preliminary Hearing. That is why a defendant can start a Preliminary Hearing being charged with only one count and end up afterwards with many more counts.

Whether a defendant conducts a Preliminary Hearing is a tactical decision. A lawyer needs to think and analyze the reasons for doing a Preliminary Hearing and not just blindly conduct one. There isn't one sure way to defend a felony charge. But, one thing IS sure, a smart lawyer thinks about what he is doing and doesn't do anything without considering the risks and benefits. That is especially true when considering whether to waive a Preliminary Hearing or not.

An elderly criminal defendant who commits a crime is in an especially difficult position. What does the criminal justice system do with a defendant who has violated the law but who is of an age where it makes no sense to put him in jail? An elderly defendant can be someone who kills their aged and desperately ill spouse, acts out because of conflicting medications and a diminished mental state or perhaps someone who has committed an economic crime in an effort to make ends meet when he is on a fixed income.

Recent examples in the court system point out the difficulties in representing defendants who are elderly. In an economic crime like Worker's Compensation Fraud an elderly defendant might continue to work after getting injured on the job simply to ensure that he is able to pay the bills. Of course, it is illegal to work without reporting that fact while receiving Worker's Compensation benefits. This is because those benefits are based on the theory that the defendant isn't working.

However, Worker's Compensation benefits rarely allow the recipient to pay his bills. Many times young and old alike are tempted to work even though they are not supposed to while getting Worker's Compensation benefits. If one gets benefits, those benefits will be cut or even terminated if the defendant goes back to work. If an elderly defendant is working to supplement his income and gets hurt he may be unable to even pay for his medicine and necessities of life.

Another situation can arise when an elderly person commits a violent crime which is completely out of character. Someone who is elderly and doesn't have any prior record of any crime suddenly acts out in a violent fashion. He could have killed or attacked a roommate or family member. What does the criminal justice system do with these individuals?

A skilled criminal defense attorney will first and foremost handle the criminal defendant as an individual, working all of that individual's personal traits to his benefit. In the Worker's Compensation case, the motivation behind the misrepresentation may be that a spouse is ill, he has been injured and unable to work full time, and he is not well himself. Once the elderly can't make ends meet after a lifetime of honest hard work it is devastating to be at the mercy of the government. One may violate the law after a lifetime of honesty. The motivation behind the criminal conduct isn't greed. It can and must be explained as poor judgment by someone who felt all hope was gone.

With a violent outburst by an elderly defendant the motivation is also critical to the analysis. Violence may not be anything other than involuntary. Medications, senility, and dementia can all contribute to the cause of the violence. What good can come from putting a mentally diminished elder or an Alzheimer's patient behind bars? The answer to the question is obvious.

An elderly defendant needs to be represented with care and compassion for his circumstances. It isn't just the charge or charges that govern the outcome. Even elder clients charged with murder can find the criminal justice system isn't without compassion as long as he finds the right representation.

When you don't like the judge you are in front of you are in trouble. There is a provision for changing your judicial officer but it must be used with caution.

When a defendant doesn't want a particular judge, commissioner, or referee to hear any matter that involves a contested issue of fact or law, the defendant can challenge him or her under Code of Civil Procedure (CCP) 170.6. This is called a peremptory challenge. A defendant or his attorney states that the judge, commissioner, or referee is prejudiced against him. However, this statement is just that, a statement. A defendant and/or his counsel do not have to prove that the judicial officer is, in fact, prejudiced against him. If a defendant doesn't like the way the judicial officer looks, an affidavit of prejudice can be filed and the case will be re-assigned to another judicial officer.

There are limits to challenging a judge. For example, if a judicial officer has heard and determined a contested fact relating to the merits of the case it is too late and you are stuck with that judicial officer. This only makes sense since all losing parties would like to challenge the judge who rules against them. With all rulings the court is going to make, at least one party to the law suit is going to be unhappy. Therefore once you have lost a ruling on an issue that goes to the merits of the case you can't file a 170.6 affidavit. If it were otherwise there would be chaos in the court system with litigants filing one challenge after another against the sitting judicial officer.

Also, if a case is assigned out for trial from a master calendar court the challenge has to be filed when the case is assigned for trial. If the case doesn't get assigned out for trial from a master calendar court but is assigned directly to the courtroom for all purposes, including trial, a challenge must be made within 10 calendar days after being sent to that department or within 10 calendar days before an appearance is made by the party who wants to file the challenge (CCP 170.6(a)(2) .

From a personal viewpoint, I don't want to file a 170.6 challenge unless I am sincerely convinced that I cannot get a fair hearing before that judicial officer. One should not say a judicial officer is prejudiced against them if they don't have a solid basis to make that allegation. I rarely file such an affidavit of prejudice. Don't forget, the one who you challenged may be better for you than the one you get next.