The San Diego County Public Defender’s, together with private criminal defense lawyers and local veterans groups, is reportedly putting together a legislative proposal for the diversion of criminal cases for combat veterans. The Penal Code already provides for alternative sentencing for combat veterans suffering from post traumatic stress disorder (PTSD), substance abuse, or psychological problems stemming from “serving in a combat theatre in the United States Military.” The new proposal would go much further in allowing for the diversion of criminal charges for qualifying veterans in the same way that diversion operates for non-violent drug possession offenses. Typically, a diversion qualified drug defendant pleads guilty and sentencing is deferred while the defendant is ordered to complete a treatment program and stay out of trouble for at least 18 months. After successful diversion, the guilty plea is withdrawn and the “arrest is deemed never to have occurred.” Combat veterans who suffer from the above mentioned problems would be allowed diversion in a wide range of cases, from petty theft and burglary to domestic violence. The San Diego criminal justice system has accommodated Vietnam veterans subject to minor prosecutions in the annual Stand Down Court. Accommodating all combat veterans for a broader range of cases is the stated goal of the defense bar. To succeed, the proposal would likely need the support of Office of the District Attorney and law enforcement groups. Hopefully all parties can agree that diversion for combat veterans is in the interests of justice.
Posts Tagged ‘criminal defendant’
Roman Polanski has a Fighting Chance and Nothing to Lose
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.
DA Cannot Hide a Bad Expert Witness Behind a Better One
In a recent decision handed down from a California Court of Appeals, the Court affirmed a criminal defendant’s Constitutional right to confront an expert witness who has prepared a report relied upon by another prosecution witness. In People v. Dungo, the DA tried at a jury trial to swap a bad witness with a better one. The defendant had admitted choking his girlfriend to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter. Dr. Bolduc, a pathologist, conducted an autopsy on the victim’s body and prepared a report of his findings. Dr. Bolduc, however, never testified at the defendant’s trial. He was the bad witness. Instead the prosecution called Bolduc’s supervisor, Dr. Lawrence, as the good witness. Dr. Lawrence was called to testify about the duration of the choking-which was discovered during the autopsy and bore on the defendant’s culpability-even though Dr. Lawrence was not present during the autopsy. The prosecution chose to use Dr. Lawrence in place Dr. Bolduc because Dr. Bolduc had a disreputable employment record that would undermine his credibility as a witness. The jury found defendant guilty of second degree murder, not manslaughter. However, under the Sixth Amendment to the United States Constitution every criminal defendant has the right to be confronted by, or cross-examine, witnesses against them. In this case, the Court on appeal held that the defendant was not properly afforded this right because he was not provided a chance to cross-examine the person who actually prepared a report which was the basis of another witness’s testimony. The decision of the Court of Appeals not only comports with longstanding precedent, but also highlights an important policy issue-the state’s employment of credible experts, or in this case lack thereof. If the State of California wishes the finding of its experts to be used against criminal defendants, in proceedings which can potentially deprive a person of his or her liberty, than the state should hire only the most credible experts to examine evidence. This should include not only the hiring and retention of experts who are paid by the government, but also, the employees of private companies with which the government contracts to do such “expert” work. If the state for whatever reason relies on experts who are less than competent or less than credible to examine evidence and make findings that can be used in criminal proceedings, than any issues of these experts’ credibility should be known to whoever is deciding the fate of a criminal defendant. In other words, the prosecution is prevented in these situations from swapping a bad witness with a good witness.
San Diego Criminal Courts Closing, Prisoner Early Release
The unprecedented California budget crisis has now resulted in the San Diego Superior Court closing every third Wednesday of the month, effective September 1, 2009. Court clerks have already cut-back to a shorter work day, and the court closing will put further strain on a majority of criminal court defendants and defense lawyers. The budget mess has also forced the California Legislature to consider a number of proposals to allow for early release of prisoners. The early release will lighten the budget load as the higher cost of housing prison inmates will be eased by the lower cost of parole supervision. This proposal, of course, does not apply to inmates in county jails serving a probationary sentence. There are a few county sheriffs, however, that take a creative approach to the meaning of “custody” by allowing their county inmates to “serve custody” in ways ranging from electronic surveillance to work release. In this way their budget load is lightened.
The budget mess is clearly both helping and hurting criminal defendants.
Juvenile Offenses can be used as Strikes
Juvenile adjudications (convictions) can be used against adult criminal defendants under the “three strikes” law even though juvenile defendants have no right to a jury trial. The California Supreme Court, in People v Nguyen, held that prior juvenile adjudications that qualify as serious or violent felonies (”strikes”) can used to substantially increase an adult criminal defendant’s felony sentence, despite the fact that juveniles are not entitled to a trial by jury.
In Nguyen, the Court emphasized that a defendant is still free to contest the fact of a prior conviction in the adult case, and, of course, a defendant can always challenge whether the juvenile adjudication actually qualifies as a serious or violent felony offense. Juvenile cases from outside of California are example of those types of cases often subject to successful challenge on the issue of whether they qualify as a strike offense. But for now, criminal defense attorneys can no longer successfully raise 5th 6th and 14th Amendment objections against the use of the juvenile case as a strike solely due to the lack of a jury trial right in juvenile court.
The California Supreme Court may get overruled on this issue by the U.S. Supreme Court. Criminal defense lawyers therefore must continue to object to the use of juvenile offense as strikes in order to preserve this issue for appeal, especially for criminal defendants looking at a life sentence.
Sneaking past the Attorney to get the Defendant: Montejo v. Louisiana
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.
