by

While Orange County law enforcement has been dealing with its own evidence scandals, what has been happening in Baltimore, Maryland rips open the suspicions some have expressed for many years about law enforcement tampering with or planting evidence. Thanks to police body cameras, we are now witness to what appears to be outright manufacturing of evidence by the police, at least in Baltimore. There is no reason to believe that the Baltimore Police Department is the only law enforcement agency in the country that plays loose with the evidence.

Two incidents of police planting evidence in Baltimore have been recently exposed. In both instances, it is believed that the officers involved were not aware that their body camera was running at the time. Is this the tip of the iceberg?

The first exposure involved an incident in January where officers were investigating a drug suspect behind some empty row houses. Unbeknownst to the officer, his body camera was recording as he placed a plastic bag of drugs inside a can in the alley. He then manually turned on his body camera and announced to the other officers that he was going to check the alley. Lo and behold, he finds the can. The suspect was arrested and unable to post bail. It wasn’t until June when the defense attorney representing the suspect received and viewed the body cam footage that the acts of the officer were discovered. After six months in jail, the charges were dropped against the suspect after the body cam revelation.

Continue reading →

by

We are all familiar with the term “statute of limitations” but what does it actually mean. In criminal law, it refers to the time in which a person can be prosecuted for a particular crime according to the statute (law). Each state has devises its own statutorily defined time in which a person can be charged with a crime and the federal government has its own statute of limitations for federal crimes.

In California, crimes that can be punished by death or life in prison without the possibility of parole have no statute of limitations, nor do crimes for the embezzlement of public funds. In 2016, a new bill was signed into law that removes the statute of limitations on prosecutions for certain sex crimes, including rape and child molestation. Previous to this law, rape had a ten-year statute of limitations and sex crimes against children had to be prosecuted before the victim turned 40.

All other crimes have a specified number of years under the California statute in which the prosecutor can charge those crimes, but it’s complicated. Generally, misdemeanor crimes must be prosecuted within one year of the date of the crime while felonies must be prosecuted within three or six years depending on the applicable punishment for the crime. Those crimes that are punishable by imprisonment have a three-year statute of limitations, but if the crime is punishable by imprisonment for eight years or more, the statute of limitations bumps up to six years. There are many exceptions. For example, some crimes against a person over the age of 65 have a five-year statute of limitations and some white-collar crimes such as fraud and embezzlement have a four-year statute of limitations.

Continue reading →

by

Ah, the Ford Fusion. With apologies to those who own one, it may be the most boring car ever. Well, maybe not anymore. Ford Fusions are made in Hermosillo Mexico and then shipped to Ohio. Some of those Fusions have been carrying a secret. Turns out that numerous Fusions have been found to be carrying lots of weed—that’s marijuana for you Fusion owners—in the spare wheel well. At one Youngstown, Ohio Ford dealership, DEA agents found marijuana worth a million dollars in the wheel wells of Fusions newly shipped from Mexico. Marijuana has also been found in Fusions in 15 other cars in Ohio, and in Fusions in Pennsylvania, Minnesota, and Arizona. I guess this is giving new meaning to the term “car dealership.”

Just during the two months of February and March this year, around 1,100 pounds of marijuana were discovered hidden in 22 newly manufactured Fusions coming to the US from the Mexican plant. In February, another fifteen Fusions on a railcar in St. Paul were reported to the police. Thirteen of the cars had already been shipped out to dealerships and three ended up at the Enterprise rental location at the Minneapolis-Saint Paul International Airport. (Imagine unsuspectingly renting one of those cars and ending up with the police finding it. That’s an immediate arrest despite your protestations that you knew nothing about it.) All 15 cars were recovered by the police with the after-market “extras” still hidden in the spare tire compartments. Each car had between 40 and 60 pounds of marijuana hidden in the spare tire wheel well.

There are many other instances of Fusions “infused” with weed and that’s only the marijuana that has been found. To be sure many more Fusions have entered the US loaded with the “extras” that were intercepted and removed by co-conspirators before the Fusions hit the dealership showrooms.

Continue reading →

by

INVOLUNTARY MANSLAUGHTER IS OFTEN A CRIME OF STUPIDITY

Stupidity often puts otherwise law-abiding people on the wrong side of the law, but this act in Minnesota might be among the stupidest ever. A young and very pregnant woman, 19 years old, shot and killed her boyfriend. The entire killing was videotaped. Why? Because her boyfriend, in his quest for fame on YouTube asked his girlfriend to shoot him. The girlfriend, carrying the couple’s now fatherless child, made an announcement on Twitter a few hours before the event, stating that they were going to videotape one of the most dangerous stunts ever.

The young man, now deceased, believed that a bullet could not penetrate the hardcover encyclopedia he held against his chest upon which his girlfriend then pulled the trigger on a .50 caliber pistol point blank at the book. It’s all there on the video they planned to post on YouTube.

Continue reading →

by

The opioid epidemic in this country couldn’t have happened without the doctors. Now, I am not saying all doctors are bad, I am just stating a fact. I am not imputing motivation, but I suspect money had something to do with the fact that some doctors found a good business model in pain relief. And, I am sure some doctors thought they were doing a good thing to prescribe opioids to their patients who were suffering from tremendous pain — after all, the pharmaceutical companies marketed the opioids as wonder drugs with negligible risk of addiction.

But about ten years ago, the consequences of all these legal opioid prescriptions became tragically evident. This country is now struggling with an opioid crisis and overdose deaths are rising at rapid rates every year.

What about those doctors who prescribe opioids at to patients that overdose and die? Is the doctor the proximate cause of a person’s death? While there have been numerous instances of doctors across the county convicted for overprescribing opioids, none were charged with murder until 2015. In that year, a California doctor was convicted of second-degree murder for the deaths of three of her patients—one from Orange County—for whom she had prescribed opioids and other dangerous drugs, even though as the prosecution successfully established, she knew of the dangers. Despite one of her patients overdosing in her clinic and numerous phone calls from authorities warning her that some of her patients had died with drugs in their system, she continued to dole out dangerous prescriptions. Although she was only charged with the three deaths, there were at least five other patients in her care who died from overdoses. The California doctor was the first in the country to be charged and convicted of murder for the reckless prescription of opioid drugs. The doctor’s sentence: 30 years to life.

Continue reading →

by

CREATE THE ENEMY AND MAKE THE WAR: AMERICA’S WAR ON DRUGS

The History Channel is running a very interesting Docuseries about the War on Drugs. Many viewers of the series may be shocked to learn how one arm of the government has been prosecuting the War on Drugs while the other arm is actually facilitating the entry of drugs into the United States. The documentation leaves no question that the history of drugs in this country is a history of the United States government, and in particular the military/security agencies, as the drug kingpin. Does that sound outrageous? Unfortunately, it is documented truth.

Many readers will recall the Iran-Contra affair, if not the details, at least the name. The Iran-Contra affair was a complicated conspiracy to bring weapons to the Contra rebels fighting the nascent “Communist” government in Nicaragua in the 1980’s. The United States Congress had passed a law forbidding weapons sales to the Contras, but those in the Regan Administration, zealous to wipe out the perceived communist threat, were determined to support the Contras anyway. An illicit scheme was devised by the National Security Council. Weapons to the Contras were supplied by a clandestine operation run by the National Security Council with Lieutenant Colonel Oliver North in charge. The weapons were flown into Nicaragua and the planes returned to the United States loaded with cocaine, which was sold to drug dealers mostly in Los Angeles. The proceeds from the cocaine sales were used to buy more weapons for the Contras. It is made clear in the documentary—and anecdotal first-hand accounts support the claim—that this affair was known to, and approved by, then Vice President George H.W. Bush. Hard to believe, but it is well-documented and the facts are not disputed.

Continue reading →

by

Perhaps you have heard of the “Twinkie Defense.” The term derives from the 1979 trial of Dan White, a former San Francisco Supervisor who, following a dispute with San Francisco Mayor George Moscone and San Francisco Supervisor Harvey Milk, shot and killed both men at the San Francisco City Hall. Mr. White’s defense was that he suffered from “diminished capacity” due to his depression. His defense attorneys argued that among Mr. White’s symptoms of depression was his consumption of unhealthy sugary foods. The press invented the “Twinkie Defense” even though Twinkies were never mentioned at trial.

Mr. White, who was charged with first degree murder, was convicted of the lesser offense of voluntary manslaughter. He was not convicted of murder due to the successful argument that Mr. White suffered from depression and thus acted with diminished capacity. The defense did not argue that Mr. White’s mental state was impaired because he ate Twinkies, as urban legend tells the story; rather the ultimately successful defense was that Mr. White’s state of mind due to his depression negated premeditation, which was a required element to convict on first degree murder. Diminished capacity is something less than insanity.

But that fake news story about the Twinkie Defense took on a life of its own.

Continue reading →

by

Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

Continue reading →

by

ANGER MANAGEMENT

Many violent crimes have one common variable: anger. As a criminal defense attorney in Orange County, I have witnessed the role anger plays in violent crimes from domestic abuse to assault to murder. While most people are able to control their feelings of anger to some degree or another, those who commit violent crimes often do so because they do not have the ability to control their anger. While there is certainly a multitude of variables that plays into any violent crime, anger is almost always one of them. And according to an analysis conducted by psychiatrists at Oxford and Maastricht Universities, when anger is combined with impulsiveness, there is a substantially increased risk of a violent outcome. But we don’t need studies to tell us what we already know: many who commit violent crimes have a problem with uncontrolled anger.

That is where anger management comes in. One of the most common exhibitions of uncontrolled anger that ends in arrest is domestic violence and child abuse. A person convicted of either one of these offenses in Orange County will surely be required to attend anger management as a part of the sentence. The defendant so ordered would be wise to take these classes very seriously. Why? A felony domestic violence conviction is the single greatest predictor of a future violent crime. Domestic abusers, if they cannot get their anger under control, will often abuse again…. or worse.

Continue reading →

by

Last week I wrote about computer-assisted bail decisions. There is something even bigger afoot: a bill before the California Legislature—California Money Bail Reform Act of 2017—would end bail altogether for a wide array of charged offenses. Even when a judge grants bail, the offender often can’t pay it. This results in a huge number of individuals who are incarcerated even though they have not been convicted of any crime. In effect, they are incarcerated because they are poor—or at least, too poor to pay the bail bill. The California Money Bail Reform Act of 2017 would end excessive bail amounts for most misdemeanors and some felonies.

Consider that the median bail amount ordered in California is $50,000. Even with the services of a bail bondsman, the defendant, or his or her family and friends, must come up with $5,000 to make bail. This is no small amount, especially if you are poor. And it means that a defendant unable to make bail will probably lose his or her job, with the cascading consequences of a job loss. Seems as though the bail system is pretty unfair to poor people and that is one of the primary reasons for the introduction of this bill. And if you think this affects only a small number of people, you would be wrong. According to the Public Policy Institute of California, over 60 percent of inmates incarcerated in county jails across the state are there awaiting trial or sentencing, that translates into 46,000 incarcerated individuals on any given day. Most are there because they couldn’t afford bail. Not only does this affect the individual who couldn’t post bail, but his or her family too.

In reality what this creates is a two-tiered system. One for the reasonably well-off and one for the not so well-off. If a person accused of a crime—even a very serious crime—has enough money to make bail, he or she will usually be granted freedom on bail. If a person is too poor to make bail—even for a minor crime such as a misdemeanor—he or she will lose the freedom to return home to family and work. In both cases, the alleged offender is innocent until proven guilty but one is free the other is a prisoner. What justice is there when it takes money to buy your freedom?

Continue reading →