Archive for the ‘Recent Criminal Law Developments’ Category

The man famous for his Hollywood movies, murdered wife, and life as a fugitive may be extradited from Switzerland to a Los Angeles, California courtroom. Polanski faces sentencing in a felony sex case over three decades old. He fled the United States jurisdiction after he pleaded guilty and before the sentencing hearing. He has a few options, however.

His lawyer’s first option will be to move to dismiss his case. The misconduct of his judge and a prosecutor in his case provides ample ammunition for a dismissal in the interests of justice.

He may also move to withdraw his plea. The law provides that a criminal defendant may withdraw his or her guilty plea for “good cause.” Good cause is an elastic concept, one that will almost certainly embrace the broken promises made by the judge and the other misconduct pervading his prosecution.  Withdrawing his plea has some risks, most obviously that he would face charges substantially more serious charges than the one he is now facing (charges that will carry mandatory prison time – no probation).  On the other hand, his attorney may calculate that the D.A. does not have sufficient evidence anymore to prosecute the case to verdict. Polanski would then be in even a better position than he is now – no conviction on his record.

Polanski’s last option is to face the sentencing squarely. Other Los Angeles judges have made favorable findings in his case, even in his absence. Polanski’s attorney can without doubt demonstrate an abundance of reasons that favor probation both as to the offense and the offender. An astute criminal lawyer may conclude, therefore, that the risk of a state prison sentence is very remote, and the likelihood of probation, and credit for time served, is very high.

The prosecution may elect to file a felony charge for failing to appear in court, but this will likely be defeated by their own failure for many years to make any real attempt to bring him to justice.

The battle is far from over, but Polanski is unlikely to suffer any further punishment in this case.

No CommentsTags: attorney, California, conviction, court, courtroom, criminal defendant, criminal lawyer, D.A., dismissal, extradite, failure to appear, felony charge, felony sex case, fugitive, good cause, interests of justice, Los Angeles, miscondcut, probation, prosecutor, punishment, Roman Polanski, Sentencing, serious charges, sex offender, sex offense, state prison, Switzerland, time served, withdraw guilty pleaRead More

Governor Rick Perry does not want you to find out if Texas carried out the execution of a legally and factually innocent person. The Texas governor replaced the head of the Texas Forensic Science Commission just days before he and other experts were scheduled to testify at a hearing called to investigate whether the state killed an innocent man, Cameron T. Willingham.

Politics almost certainly played a role as the Governor is running for the republican nomination in his reelection bid. The maneuvering for a replacement will delay the hearing until after his run for the nomination is over. Keep in mind that the execution of Mr. Willingham took place as on the Governor’s watch.

The execution of Mr. Willingham proceeded despite the so-called safety-net of clemency. A petition for clemency was denied by the Governor after the Texas Parole Commission summarily voted against clemency despite clear and compelling evidence of innocence. In fact, the Commission reportedly made its recommendation admittedly without reviewing any of the exonerating evidence or even meeting for a vote.

The Willingham case was not simply one where his lawyer failed to defend him competently at the criminal trial. Exonerating evidence – good enough for Florida – freed Gerald Lewis from a death row prison in a Florida case remarkably similar to Willingham’s. The same evidence at issue in both the cases involved the unscientific and false conclusions of the arson investigators at the original trials. Although these conclusions were resoundingly refuted by actual science, the Florida process resulted in freedom for Lewis and death for Willingham. Willingham lived in the wrong state.

United States Supreme Court Justice Antonin Scalia has taunted death penalty opponents to produce a factually innocent person executed in the modern age. Mr. Willingham is likely that man. For an in-depth review of his case, refer the excellent September 7, 2009, New Yorker magazine article, Trial by Fire, by David Grann. No matter what opinion you have of the death penalty, your faith in the Government’s ability to provide due process will certainly be shaken.

No CommentsTags: Cameron T. Willingham, clemency, crimina trial, death penalty, death row, execution of Mr. Willingham, exonerating evidence, factually innocent, Florida, Gerald Lewis, Governor Rick Perry, innocence, lawyer, legally innocent, testimony, Texas Forensic Science Commission, United States Supreme CourtRead More

Drug investigators have been caught on tape playing Wii games while executing a search warrant at the home of Michael Difalco. Polk County Sheriff Grady Judd lamely defends his investigators by claiming that the Wii gamesmanship would not invalidate the search. Perhaps the Sheriff should read up on the law.     

The Fourth Amendment mandates that a proceeding to search with a warrant is a drastic one and must be carefully circumscribed so as to prevent unauthorized invasions of the “sanctity of a man’s home and privacies of life,” to quote a U.S Supreme Court case that has been good law for over 125 years. When law enforcement execute a search warrant in bad faith by conducting a general exploratory search, such a flagrant disregard for the scope of the warrant may therefore justify total suppression of all evidence seized as a deterrent to such police misconduct. An exploratory search is evidenced by law enforcement rummaging through game boxes and consoles, inserting computer and entertainment resources in game players and computers, and then using the equipment.  Playing video games belonging to a homeowner whose house is invaded while executing a warrant clearly involves conduct completely unrelated to the scope of the warrant. Such an investigation reveals police disregard of the Court’s order, the Constitution, and the rights of the people whose home is being raided.  Any astute criminal defense lawyer can tell you that Federal and state constitutional law provides ample precedent for invalidating such a search.

The video can be viewed at: http://www2.tbo.com/video/2009/sep/21/polk-county-drug-bust-54649/

No CommentsTags: constitutional law, court order, criminal defense lawyer, drug detectives, exploratory serach, Fourth Amendment, game player, games, Grady Judd, investigators, law enforcement, Michael Difalco, police misconduct, Polk County Sheriff, scope of warrant, search warrant, suppression of evidence, U.S. Supreme Court, United States Constitution, video games, WiiRead More

A kidnapped girl was discovered 18 years after her abduction at the home of a convicted parolee and registered sex offender despite the fact that law enforcement has repeatedly been in contact with the man and has visited his home on many occasions over the years. That law enforcement for almost two decades missed Jaycee Dugard at the home of Phillip and Nancy Garrido is no great surprise to criminal lawyers. The shared resources of the U.S. federal  and Nevada state authorities  was not enough to effectively manage this parolee.  California – like every other state – has overburdened our police, probation and parole authorities by continuing the trend toward retribution and punishment over rehabilitation and reformation. Non-violent three strike offenders overburden prison officials. Juveniles are increasingly being punished as adults within the already crowded criminal courts. New enhancements and new Penal Code provisions and harsher punishment are continually being written into law. The list of those offenses that require registration for life as a sex offender is ever expanding. Consequently, prison, parole and probation officials cannot keep up with the workload and those persons convicted of misdemeanor non-violent sex offenses are draining resources from the supervision of high risk offenders.  As California clearly does not have more money to throw at these criminal justice problems, perhaps it is time to re-think how to best allocate the money we do have.

No CommentsTags: California law, court, criminal law, criminal lawyer, enhancement, high risk offenders, Jaycee Dugard, Juvenile Law, kidnapped, law enforcement, Nancy Garrido, offenses, parole, penal code, Phillip Garrido, police, probation, punsihement, reformation, rehabilitation, retribution, sex offender, sex offense, sex registration, three strikesRead More

Now that the Los Angeles Coroner has ruled Michael Jackson’s death a homicide, what charges will be contemplated by the Office of the District Attorney? Two charges are possible. A second degree murder charge is possible if it can be proved that injecting Jackson with the powerful anesthetic propofol was done under circumstances where the drug giver was actually aware of the risk of death from use of the drug but consciously disregarded that risk and unlawfully gave him the drug anyway. Involuntary manslaughter is possible where the lawful administration of the drug was conducted in a negligent manner. The punishment for second degree murder is 15 years to life in prison. Involuntary manslaughter is punishable by up to 6 years in prison. Other than punishment, the big difference between the two charges obviously concerns the state-of-mind of the defendant, whether he or she understood but ignored the actual risks involved with giving a person the drug. Presumably, a doctor would have a subjective awareness of the risks but at the same time would take actions to safeguard the patient’s welfare. The charge one would therefore expect to see in this case – if any -will be involuntary manslaughter. The circumstances relevant to determining what charge to file will include: who administered the drug, how they acquired the drug, whether they were aware of the nature and type of drug being administered, the side effects of the drug, their knowledge of the effects, the actual dosage, whether the drug was administered in a prudent and careful manner, and other factors that may bear on their subjective awareness of the dangers presented by the drug and on the issue of negligent supervision of the patient. The criminal defense attorney for Jackson’s cardiologist doctor, Conrad Murray, says his client gave Jackson nothing that “should have” killed him. In other words, the lawyer argues that the issue is whether an involuntary manslaughter occurred or no crime at all.

No CommentsTags: anesthetic, cardiologist, charges, criminal attorney, criminal defense lawyer, death, district attorney, Dr. Conrad Murray, drug, homicide, involuntary manslaughter, Los Angeles Coroner, Michael Jackson, murder, negligent, office, patient, propofol, punishment, risks, second degree murder, side effects, state-of-mindRead More

The United States Supreme Court in on the verge of abolishing the exclusionary rule prohibiting the use of unlawfully obtained evidence against a criminal defendant. The recent case of Herring v. United States portends a court trend in favor of illegal search and seizure at the expense of the integrity of the entire criminal justice system. This is a dangerous and unnecessary trend. Law enforcement has long taken as their own the maxim “give them an inch, they take a mile.” For example, police already have such a long list of permissible justifications for traffic stops, car searches, home invasions and general rummaging through your belongings that they can always come up with an after-the-fact justification hiding the real basis for their conduct, and thereby making illegal conduct extremely difficult to uncover even for a very experienced criminal defense attorney. We see this type of conduct, for example, in “wall stop” cases, where the police hide illegal conduct by masking their activity behind a second, outer layer of law enforcement. Nonetheless, law enforcement is deterred to the extent that they may have to justify their activity in a court against the exacting scrutiny of an aggressive criminal defense lawyer; there is really no other effective deterrent to the police from invading your privacy as they see fit.  The Herring decision threatens to erode accountability for police misconduct.

Perhaps the new composition of the Supreme Court, with Justice Sotomeyer, will resist repeal of the exclusionary rule. Time will tell.

No CommentsTags: agressive criminal defense lawyer, car searches, criminal justice system, defense attorney, exclusionary rule, Herring v. United States, home invasions, illegal search and seizure, Justice Sotomeyer, law enforcement, police misconduct, privacy, traffice stops, U.S. Supreme Court, wall stopsRead More

Criminal defense lawyers uniformly advise their clients to provide information to law enforcement only by and through an attorney, and for good reason. Many cases are prosecutable only because the defendant gave the police what they needed to make their case. In the past, attorneys did not have to worry about law enforcement sneaking behind their back to interrogate their criminal defendant clients, because the law protected the defendant from law enforcement using that information without the defendant’s express consent. But just in the past week, here in San Diego, I have been informed of two occasions where law enforcement has tried to question a client of mine without my prior knowledge or consent. In the past, making a run around the lawyer would have been clearly illegal conduct.

No longer. Law involving the Sixth Amendment right to counsel was recently changed by the United States Supreme Court’s decision in Montejo v. Louisiana. The Court in Montejo overruled the famous Supreme Court case Michigan v. Jackson, where the Court held police are prohibited from initiating an interrogation of a defendant once an attorney has been appointed. Prior to Montejo, in situations where counsel is appointed by the court, there was a presumption that any later waiver of the Sixth Amendment right to counsel is involuntary. As a result of this recent decision, in such cases where counsel is appointed for a defendant, the police are allowed to later interrogate the defendant when the defendant consents. The presumption that the statement was involuntary is no longer valid. This decision has a tremendous impact on criminal defendants as many defendants would assume that once counsel is appointed police interrogations are not permitted without counsel present. This decision exposes criminal defendants to less protection from interrogations by police after counsel is obtained.

Criminal defense attorneys must take a lesson from Montejo and advise law enforcement at the earliest stage in the proceedings that that the defendant expressly invokes his or her right to counsel and does not consent to any law enforcement contact without the attorney.

Indeed, the stakes for some defendants are high: Mr. Montejo himself was charged with first-degree murder, was convicted, and sentenced to death, thanks partly to his cooperation with the police. The court had appointed counsel but the police didn’t wait to question him. The police paid him a visit and obtained not only a letter of confession but took him on a field trip to locate the murder weapon. He later met his attorney for the first time. The Louisiana Supreme Court rejected his claim that his statements and gun  should have been suppressed under the rule of Michigan v. Jackson, which forbids police interrogation after the right to counsel has been invoked. It held that Jackson’ s protection is not triggered unless the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right, and here Mr. Montejo apparently did not actually make the request or assertion. The Court overruled Jackson. And Montejo sits on death row.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: confession, cooperation with police, criminal case, criminal defendant, criminal defense, criminal defense attorneys, criminal defense lawyer, criminal lawyer, death penalty, evidence, interrogate, interrogation, jackson, law enforcement, montejo, murder, right to counsel, right to remain silent, san diego criminal defense attorney, san diego lawyer, Sixth AmendmentRead More