Articles Posted in Criminal

Imagine being charged, convicted, and serving years in prison for a crime you did not commit. As I have documented, this happens more than anyone cares to think about. With the advent of DNA evidence analysis, hundreds of individuals have been freed from prison based on DNA testing that proved their innocence; some of these exonerated individuals were on death row. How many people have been executed over the years for a crime they did not commit? We don’t know, but it is certainly more than a few. Some may argue that in an imperfect system, it is better to occasionally make the mistake of convicting an innocent person than to let the guilty go free. I challenge anyone with that perspective to honestly consider whether they would still believe that if the wrongly convicted innocent person was themselves or a member of their family. (And, besides if you convict an innocent person, then the actual perpetrator IS allowed to go free.)

DNA exonerations aside, what about persons who are convicted based on shoddy forensic evidence, questionable science, or dubious expert testimony. Many people are unaware that it is not unusual for a person to be convicted solely on the testimony of an expert. Case in point: This month a man who had served 25 years on California’s death row was freed after his conviction for the rape and killing of his girlfriend’s 2-year-old daughter. Pretty horrific crime. However, the man, who is now 68 years old, was convicted on false medical testimony according to the California Supreme Court.

At the trial, a forensic pathologist and numerous medical doctors testified that the child died as a result of sexual assault. What makes this particularly shocking is that years later, many of the doctors who testified, recanted. Turns out they had not actually reviewed the full medical records of the child, which would have informed these experts that their testimony was false. The records admitting the child to the hospital, which incredibly, the testifying experts had not reviewed, did not reveal any sexual assault. The evidence the experts testified to was actually a result of medical interventions at the hospital. This is truly egregious behavior on the part of these testifying experts. What expert would put a person’s life and freedom on the line so carelessly? We expect more from professionals but the reality is, these professionals are often paid a handsome sum to testify. I am not accusing the particular experts for carelessness in favor of personal benefit, but our justice system should deal with the fact that some testifying experts are in it for the money and will skew the testimony to the paying side, be it the prosecution or the defense.

A person who is not a citizen of the United States—even one who is legally residing in this country—can be permanently deported if he or she has committed certain crimes. I discussed thisin greater detail last year. Immigration law is administered by the federal government but most often, a person is deported because he or she was convicted of a criminal act under state statute. While some of the federally enumerated deportable offenses are unambiguous and are consistent across states, such as assaultor kidnapping, other crimes may be punished differently in different states.  Among the crimes for which a person may be deported under federal law are “aggravated felonies.” An “aggravated felony” is a “crime of violence” for which the punishment is one year or more.

But what is a “crime of violence?” Under federal statute a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” (18 U.S.C. §16(b).) So, would it be a crime of violence if a person was arrested for threatening to harm another? Or would a conviction of first-degree burglaryin California be a crime of violence even though no violence was committed during the burglary? (In California, a first-degree burglary is the unlawful entry into an occupied residence with the intent to commit a felony or theft.)

It is true that the majority of individuals deported under U.S. immigration law are deported after being convicted of a crime specifically enumerated in the federal code, such as rape, murder, assault, and so on. But some convictions do not fall under any specifically enumerated crime of violence. It is those types of crimes under which 18 U.S.C. §16(b) is applied in deportation proceedings.

For those of us who live in Southern California, the increasing sight of homeless encampments has been cause for both compassion and alarm. The ever-increasing number of homeless people in our area is often attributed to spiking rental rates and the increasing costs of living here. But there may be an additional explanation that we don’t often hear about or read in the news: out-of-state addicts are being lured into Southern California by unscrupulous drug and alcohol rehab operations.

Driving this trend is the California law that allows a person to sign up for an Affordable Health Care Act (Obamacare) health insurance plan the day that person arrives in California. Not all states have the easy signup that is allowed through the program known as Covered California. Because anyone can be covered under this plan in California, recruiters fan out across the country looking for addicts they can lure to a California rehab facility.

There are approximately 10,000 patient beds in licensed rehab centers in Southern California alone. But these rehab facilities, although they must be licensed by the state, have few state requirements. Basically, anyone can open such a facility. While many rehab centers are legitimate and offer substantive helpto addicts, many others facilities that are nothing but addict churning mills established to bilk insurance companies and skim millions of dollars for their owners.

Recently New York Public Radio station WNYC profiled an in-depth investigation on police misconduct in the New York Police Department. The investigation revealed hundreds of incidents of misconduct by NYPD officers, including stealing and assaulting New York City residents. The investigation revealed that some of the officers were found to use excessive force by internal affairs, others of firing their gun unnecessarily, and that is just a sampling of the offenses the internal affairs department of the NYPD found officers committed. Most of these officers did not lose their job and many are still on the beat.

Sometimes officer misconduct can ruin an innocent person’s life. For example, recently a New York Police Department officer was convicted of fabricating drug evidence. His false evidence sent an innocent man to prison. Another NYPD homicide detective, once renowned for his investigation skills, is accused of tampering with evidence, prompting the district attorney to review over 40 cases the detective was involved in, which has already resulted in the court overturning 7 of the cases. This is similar to the Baltimore scandal where numerous cops were found to be planting evidence. The worst part is: innocent people end up losing their freedom because of bad cop behavior and often the public is completely oblivious.

In New York, as well as in California (and the only other state being Delaware), law enforcement misconduct records are shielded by law from disclosure to the public. May we reasonably infer that California law enforcement records contain similar incidents of misconduct?

APPELLATE COURT FORCES CHANGE IN BAIL HEARINGS

I have previously written about the judicially appointed Pretrial Detention Reform Workgroup’s efforts to analyze and recommend reforms to the California bail system and the California Money Bail Reform Act. Both efforts are directed at reforming the inherently unfair bail system in California that sends poor people to jail before they are convicted of the crime because they cannot afford the bail ordered by the court.

Earlier this year, the Court of Appeal stepped in front of this issue. The court’s published decision in In re Humphrey, Court of Appeal, 1st Appellate Dist., 2nd Dv. (January 25, 2018) will force changes in the bail system, even if our representatives never get around to bail reform legislation. In this case, San Francisco resident Kenneth Humphrey was arrested and charged with robbery. Mr. Humphrey’s bail was set at an amount he could not afford. He was remanded to jail where he remained prior to any hearings or trial on his guilt or innocence.

The evidence is the heart of any criminal case. We usually think of evidence as evidence that supports (or proves) the allegation that the crime was committed. This is technically called “inculpatory evidence” as it tends to incriminate (or inculpate) the defendant. But what about evidence that tends to exonerate (or exculpate) the defendant? This evidence is called “exculpatory evidence” but it seems we hardly hear about this type of evidence.

In the seminal case, Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that in any criminal case, the prosecution has a constitutional duty to reveal to the defense any evidence it has that might show the defendant is innocent of the crime charged or did not commit the crime in the manner charged. This is the defendant’s due process right. This is commonly referred to as Brady evidence or a Brady disclosure and it applies to all California criminal cases.

Brady evidence can be physical evidence, witness statements, video footage, recordings, or any evidence that has a “reasonable probability” of establishing that the defendant did not commit the crime or did not commit the crime to the level charged (for sentencing mitigation purposes). A good example might be evidence that a credible witness to the alleged crime comes forth and states that he saw the police plant evidence. If this were a true statement (and it certainly happens, as the recent incidents in Baltimore have exposed), it is exculpatory and the prosecution must reveal it. But the police would certainly try to cover this statement up, sometimes even with the help of the prosecutor. Hopefully this doesn’t happen often, but it is unfortunate that the prosecution and the police sometimes do suppress exculpatory evidence in furtherance of their own prosecutorial agenda. Orange County had its own Brady evidence scandal a few years ago.

A turkey? A person who has had a bit too much to drink? A spinning top?

Well, it might be all those things, but in California law, a “wobbler” refers to an offense that may be charged and punished as a felony or a misdemeanor. There are literally hundreds of wobbler offenses on the California law books. Although the Penal (criminal) Code lists the most wobblers, these offenses are also found in other codes, such as the Business and Professions Code, the Health and Safety Code, the Professions Code, the Vehicle Code, the Commercial Code, and the Family Law Code. A wobbler provides for punishment by incarceration in state prison (a felony) or in county jail (a misdemeanor).

For example, a charge of assault with a deadly weapon other than a firearm under Penal Code section 245 is punishable by either two, three, or four years imprisonment in state prison or incarceration in county jail for six months to one year. It’s important to keep in mind that even though the punishment calls for incarceration, that does not mean that if the defendant is convicted he or she will go to jail or prison. Even if convicted, and depending on the circumstances of the crime, the court will often “stay” or “suspend imposition” of a sentence and grant the defendant probation or some other alternative sentence.

A defendant was charged with three separate armed robberies. The three victims all identified the defendant in a “six-pack” photographic lineup. In closing arguments at the jury trial, the defense attorney questioned the correctness of the identifications. The prosecution rebutted, stating that there were three victims who identified the defendant separately at different times. Referencing what the prosecutor called a “fancy expression” known as Occam’s Razor, the prosecutor argued that the reasonable doubt standard requires that the obvious answer is the best answer.

Occam’s Razor is a term that that refers to a problem-solving principle. Simply put, the principle states that when faced with competing hypotheses, the simpler one is the best one. The more assumptions that must be made to explain a hypothesis, the less likely that hypothesis is the correct one.

In the case of the armed robber, the defense argued that the victims misidentified the defendant in the photographic lineups. But implicit in the prosecutor’s statement was that it would require more assumptions to accept that conclusion than it would to conclude that each of the victims, by separately identifying the same person (the defendant) in the photographic lineup, correctly identified the defendant.