Articles Posted in Criminal

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Our system of justice is designed to be impartial and fair. But judges and juries are not robots. In any criminal case, the judge and jury will not only view the evidence with neutral eyes and ears but will also rely on “soft” skills such as intuition and biases. A perfect example of this is during the sentencing phase. When a defendant is convicted of a crime, the sentence he or she receives depends—perhaps too much—on the perceived remorse of the defendant.

We like to think that we are good at detecting the heart and minds of others. When an offender is convicted of a crime he or she will often be called upon to make a statement during sentencing. This is the opportunity for the now guilty offender to offer contrition and remorse. It is not uncommon to hear a judge or juror opine after such a statement that he or she didn’t believe the offender really meant it — that the statement was merely used as an opportunity. And, that may be true. But can the judge or juror, even when tasked with this awesome responsibility, reliably infer the offender’s true motives and emotions?

There is a well-known study called “mind in the eyes” —you may be familiar with this study. Scientists showed study participants various photographs of a pair of human eyes. The study participant was then asked to pick the mental state or attitude that best matched what the eyes expressed. The participant was given a list to choose from such arrogance, annoyed, upset, or worried. Supposedly the test determines how well a person can read the emotions of others simply by looking at (or some would say “in”) their eyes. Another way of putting this is that we intuit the emotions and mental state of others from what their eyes are “telling” us.

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DEPORTABLE CRIMES

With immigration a big topic in the news, many are confused about who exactly can be deported from the United States. It goes without saying that someone who is in the US without going through the proper channels, i.e., no visa allowing entry (undocumented), can be deported in most instances. Exceptions might be made on humanitarian grounds for example for asylum seekers and people who were born in another country but brought to the U.S. as children.

This post is about those who can be deported even though they are in the U.S. legally, whether on a visa, a resident alien, or categorized as an asylum seeker waiting approval or those who have been allowed to stay pending review of their particular case.

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CRIME RATES REMAIN STABLE THROUGH CALIFORNIA’S POLICY REFORM ERA

In 2011 the Public Safety Realignment Bill became law in California. This legislation was designed to stem the “revolving door” of non-violent criminals in the state prisons. Realignment, as it is commonly called, was in response to the severe overcrowding in California’s prisons and mandated by requirements set by the federal court. It resulted in major changes in the state’s criminal justice system is administered.

Essentially, realignment provided for offenders convicted of certain non-violent, non-serious crimes would serve their sentence in county facilities rather than the state prison system. It sounds as though the bill just off-loaded low-level felons from the state to the counties and in many respects, that is true. But Realignment is also focused on a reduction in recidivism and has provisions that allow house arrest and other alternative sentencing schemes.

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Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

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You probably heard about the four Chicago youths who kidnapped a mentally disabled 18-year-old male, tied him up, assaulted, tortured him, and taunted him with profanities against white people and Donald Trump. Perhaps you saw the video. The assailants actually live-streamed this 30-minute ordeal over Facebook; the video is revolting. The youths are being charged with multiple offenses and while the hate crime charge is getting the most attention, the most serious sentence exposure for these four relates to the mental disability of the victim.

In Illinois, as in California, certain crimes are “aggravated” when the victim is mentally disabled. This can substantially enlarge the potential sentence. For example, in the case of the Chicago four, the kidnapping charges alone stand to enhance the sentence by an additional 25 years (5 years max for kidnapping but up to 30 years when the victim is disabled).

In California, when the victim of a crime is disabled, whether mentally or physically, it can be an aggravating factor that can tack many additional years on to the defendant’s sentence as it applies to certain crimes. Many misdemeanor assault and battery crimes become a felony when the victim is disabled. Surprisingly, in California, unlike Illinois and many other states, kidnapping is not elevated to an aggravated crime if the victim is disabled.

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Researchers have discovered a there is a genetic link between personality and mental illness. As one of the researchers explained: “Mental illnesses can be viewed as maladaptive or extreme variants of personality traits.” The researchers studied the genetic profiles of 260,000 people focusing on the five long-established personality traits (extraversion, neuroticism, agreeableness, openness to experience and conscientiousness) that are considered the basic categories of personality. What the researchers found was that these personality dimensions when identified on a person’s genome map (yes, there are “personality genes”) strongly correlated to gene variations that predicted various mental illnesses.

Now you might say, “What’s new?” It is observable in our everyday life that people we know who have, for example, a neurotic personality also tend to have anxiety disorders and depression. These links between personality and mental illness have long been observed and studied. What this study reveals however is that there is a genetic link; in other words, it’s not all nurture. The researchers theorize that the personality a person is born with may tip over into mental illness when pushed to extremes by life experiences.

This field of research, which is sure to eventually unlock the keys to mental illness, is a potential minefield in terms of the criminal justice system. It would not be a stretch to say that many criminals are born. In other words, a criminal is born with a certain personality type—as are we all— but the criminal personality is one susceptible to the risk of mental illnesses, such as antisocial disorders or psychopathy. Indeed, it is estimated that more than half of all incarcerated criminals have some kind of mental illness. (Removing the large numbers of persons incarcerated for victimless crimes would increase that percentage substantially.)

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On November 8, 2016, California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 201, by an overwhelming majority of 64%. This proposition contained two key provisions:

1) It makes certain non-violent felons eligible for immediate parole and

2) It requires a court hearing before a juvenile can be tried in adult court.

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The Brave New World of Law Enforcement Investigation

The digital age has changed everything in the world around us and law Enforcement is no exception. Back in the old days, police investigation procedures were limited to talking with potential witnesses, taking lots of photographs, lifting fingerprints, forensic analysis of blood, and that sort of thing. Now law enforcement has investigation tools that make their job easier and make it harder for the criminal to “get away with it.” But these tools present their own dangers to the public. As civil rights advocates warn, the brave new world of law enforcement tools endanger our civil liberties. I will discuss why this may be so in my next post but today, let’s review just a few of the new age law enforcement tools.

We might begin with DNA analysis, which was no doubt the first huge law enforcement tool of the digital age. We are all familiar with DNA analysis, but it’s pretty amazing to think that it has only been around since the mid-1980s. DNA has proven to be a very effective law enforcement tool and on the flip side, DNA evidence techniques have freed individuals who were wrongly convicted of a crime.

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NEW CALIFORNIA LAW PULLS IN THE REINS ON LAW ENFORCEMENT’S SEIZING OF PROPERTY

You have probably heard of civil asset forfeiture but did you know that under this procedure law enforcement can confiscate property—be it money, a house, a vehicle, or any other asset—without any due process to the owner of the property. The property can simply be seized under civil asset forfeiture laws on the “suspicion” that the asset was gained by or used for a criminal enterprise.

While the owner of the asset can petition for the return of asset, the petition must be filed within a very short period of time and the process is daunting. In the end, the government can refuse to return the asset on the continuing suspicion that the asset is connected with criminal activity. And guess what: Even if the owner of the asset is never convicted of any crime as it relates to the suspected criminal activity for which the asset was seized, the asset is not returned to the owner.

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In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

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