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Hotel rape suspect arrested, linked to park assault (Sam Spital)

Posted on December 27, 2012 by Caroline Anderson - Senior Support Specialist

Commentary by Criminal Attorney Sam Spital:

“The UT online edition of the news on December 27, 2012, reported a previous rape suspect was now arrested for assault, rape, attempted murder and false imprisonment of a hotel housekeeper. The 44 year old offender who was released after an arrest for rape in October due to insufficient evidence, was reportedly linked by DNA to both the previous and current vicious crimes.

The defense attorney may be faced with what is often irrefutable DNA evidence establishing guilt, however, that still leaves open the issue regarding the penalty for the crimes. This is a significant area for the experienced lawyer to set forth with compelling evidence the elements of remorse, if any, as well as mitigation.

As a criminal defense attorney, it is my considered opinion that a sentence should depend upon multiple factors and not just the proof of a crime. Here is the opportunity to view the entire panoply of facts, issues and history regarding both the crime and the defendant. For example, the life and social history of the defendant as well as the lack of any prior jail &/or prison sentence are material facts and certainly highly relevant to the disposition of a case.”

La Mesa resident prevails in illegal search case (Sam Spital)

Posted on December 26, 2012 by Caroline Anderson - Senior Support Specialist

Commentary by San Diego Criminal Defense Lawyer Sam Spital:

“The North County News on December 25, 2012 published this article regarding a three Judge panel of the U.S. Circuit Court of Appeals, for the 9th Circuit that held a police officer cannot gain entrance to a person’s property or home in pursuit of a possible misdemeanor suspect without first obtaining permission or obtaining a search warrant. To do otherwise, the panel of the Court ruled is a violation of the Fourth Amendment of the U.S. Constitution that prohibits unlawful searches and seizures. The historical exceptions in the law allow the police to enter private property when in ‘hot pursuit’ of a fleeing suspect believed to have just committed a serious felony, the possible destruction of evidence and/or when the police or the public are in imminent danger.

The underlying facts are that the La Mesa Police were called because of a fight on a neighborhood street in this community that is adjacent to the City of San Diego. However, when the police arrived, there was no fight in progress and three individuals were walking away in the opposite direction of the police. An officer yelled ‘Police’ but one of the individuals did not stop and walked inside a gated fence surrounding a nearby home. The officer reportedly kicked in the gate and it struck a woman who was standing on the inside. The force knocked her to the ground and she sustained a concussion, was unconscious and then taken by ambulance to a local hospital for surgery. She sued the officer and the City of La Mesa for $500,000, but the case was dismissed by the U.S. District Court. When the particular suspect was caught he did not possess any weapons and there reportedly was not sufficient evidence a crime had taken place or was ongoing. Accordingly, the panel of the Court held there was no imminent danger to the officer or anyone else and, therefore, ordered the case be reinstated. The next step is for the full 9th Circuit Court to review the matter and if that produces an unsatisfactory opinion the case can be appealed to the U.S. Supreme Court; otherwise, it will be sent back for a trial on the merits.”

–Sam Spital

Local Hospital Fined $75K for Removing Wrong Kidney – Kaiser Foundation Hospital in San Diego among 12 California hospitals penalized (Sam Spital)

Posted on December 21, 2012 by Caroline Anderson - Senior Support Specialist

COMMENTARY BY SAM SPITAL, SAN DIEGO PERSONAL INJURY AND CALIFORNIA PROFESSIONAL LICENSE ATTORNEY:

“Reported December 20, 2012 online by NBC TV Channel 39 was the action taken by the California Department of Public Health that fined Kaiser Foundation Hospital for removing the wrong kidney of an 85 year old male patient. Multiple physicians over a four (4) year period of time found and documented a cancerous tumor on his left kidney, but the surgery was performed on the wrong kidney.

As is standard procedure, the surgeon used a marking pen to identify the location and/or object of the surgery. However, he incorrectly marked the right kidney and no other medical or nursing staff noted the error. This could also have been avoided had the doctor viewed the previous medical records and/or the series of past CT images of the left kidney, the latter easily available and as a matter of course required to be viewed on a screen in the operating room. This is despite elementary medical principles and practices as well as standards of care specified in the Joint Commission Universal Protocols adopted by Kaiser that mandate such films to be displayed and viewed on a nearby x-ray illuminated viewing box in the operating room.https://www.cdph.ca.gov/certlic/facilities/Documents/HospitalAdministrativePenalties-2567Forms-LNC/2567KaiserFoundationSanDiego-SanDiegoCounty-NDLD11.pdf. The protocols even go so far as to require ‘time out” for the surgical team to confer regarding, and provide a final verification for, the surgery. All of the above steps were unfortunately ignored.

The daily activities of living of the patient were severely interrupted and will be impaired forever. Due to the horrifying result of the surgery, the lifestyle of this senior citizen cannot ever be the same. A claim or lawsuit for medical malpractice against the individuals involved as well as negligence of the hospital likely ensued; however, the article does not contain any information regarding these facts. It strains credulity to read or hear about such events. One can only hope this is an extremely rare anomaly, albeit never should have occurred.”

–Sam Spital

Twin brothers accused of scamming local sports fans (Sam Spital)

Posted on December 20, 2012 by Caroline Anderson - Senior Support Specialist

COMMENTARY BY SAM SPITAL, SAN DIEGO CRIMINAL ATTORNEY:

“KFMB Channel 8 CBS online news contains an article written on December 19, 2012 in which two 62 year old brothers were accused of conspiracy to commit mail and wire fraud. The story revealed a similar scam and their conviction in 1990 for group tours that were never provided to high school and middle school students, which resulted in the sentences of 27 to 30 years in state prison and restitution of over one-quarter million dollars. If convicted in the current criminal case, the twins each face up to 20 years in state prison as well as fines of at least $250,000.

Lacking even a scintilla of evidence of remorse, rehabilitation and extenuating facts and circumstances, the reporter went to the home of the two brothers, but no one came to or answered the door. A neighbor reported the brothers were friendly and took care of their elderly mother. The defense will likely assert the defendants did not have sufficient business experience, among other things, to follow elementary principles of accounting and maintain all funds received in a trust account, pay for costs and expenses as incurred or bills were received, and to employ sufficient and experienced employees in order to deliver on their contracts as well as to promise only what they were certain they could achieve.”

WOMAN KILLED; GIRL, 8, IN COMA (Sam Spital)

Posted on December 19, 2012 by Caroline Anderson - Senior Support Specialist

Commentary by San Diego Homicide and Criminal Defense Lawyer Sam Spital:

“UT San Diego News reported on December 19, 2012 a 28 year old suspect and acquaintance was arrested in the murder of a 41 year old woman in her Vista apartment, a community in the north part of San Diego County. Also, her 8 year old child who was in the apartment at the same time was seriously wounded, taken to the hospital in critical condition.

The article did not establish any basis or motive for the attack, information regarding the perpetrator such as criminal history, nature and extent of his relationship with the victims, explanation, possible mitigation and/or remorse. These are not only elements that assist one in reading a balanced account, but without such details it is more challenging to comprehend the underlying cause(s) that led to the crime. A criminal defense attorney would likely employ an experienced private investigator to obtain this extremely important information and perhaps retain a forensic expert to assist in the strategy and analysis of legal counsel.”

– Sam Spital

Losing plaintiff in disability suit must pay defendant’s attorneys fees, state Supreme Court rules (Sam Spital)

Posted on December 18, 2012 by Caroline Anderson - Senior Support Specialist

Commentary by San Diego Personal Injury Attorney Sam Spital:

“One of the headlines in the Los Angeles Daily Journal online edition on December 18, 2012 reported the California Supreme Court ruled in a unanimous Decision that the Plaintiff, who was on a wheel chair and sued under the American with Disabilities Act as well as related state laws claiming he could not gain access due to a 4 inch step at the entrance of a grocery store, was liable for $118,000 in attorney fees of the Defendant owner when he lost the case.

The Decision of the California Supreme Court is in conflict with Federal law and the most recent interpretation by the U.S. Circuit Court of Appeals that only requires a Plaintiff to pay the attorney fees of the Defendant if the case is deemed frivolous.

The general rule in the United States is the losing side does not have to pay the attorney fees of the winning party. There are many exceptions in California and other states, including when a contract or statute specifies the losing side is obligated to pay the attorney fees of the prevailing party. It is also noteworthy that many judges use their discretion by applying equitable remedies to decide these cases and on the basis of justice and fairness may or may not make such an award. In England and other countries, the losing side on the other hand is often compelled to pay the attorney fees of the opponent.

Proponents of disability lawsuits claim the Supreme Court ruling is far too harsh and punishes individuals for filing these cases if they lose. However, the cases can and are often brought in Federal Court because of the different law. The opposing argument is that lawyers who represent Plaintiffs in these cases accept them on a contingency fee basis (the client pays nothing unless he prevails and collects) and the lawyer knows or has reason to know the Defendant in such a lawsuit will have to bear a huge burden to defend such cases and, therefore, must consider the costs vs. benefits, namely whether the case has substantial merit and not gamble on the outcome at the expense of the defendant.”

CA Judge Considers Sex Offenders on Social Media (Sam Spital)

Posted on December 18, 2012 by Caroline Anderson - Senior Support Specialist

Commentary by San Diego Sex Crimes Defense & Criminal Attorney Sam Spital:

“On Monday, December 17, 2012, KNBC Channel 7 online edition contained a story regarding a hearing before the United States District Court and the validity of a recent 81% voter-approved initiative commonly referred to as Proposition 35 requiring registered sex offenders (RSO’s) to give authorities a list of their Internet providers and screen names. Currently there are about 73,000 RSO’s in the California Registry, and many of their convictions had nothing to do with using the internet.

The ACLU sued and contended the provision violates equal protection, due process and free speech of sex offenders pursuant to the U.S. Constitution. Thereafter, the Federal District Court Judge issued a temporary restraining order blocking the enforcement of that portion of the new law. Now, the Federal Court will decide the nature and scope of free speech rights of such defendants, and whether registered sex offenders must reveal their online information such as email addresses, usernames, social media passwords and their Internet service providers to law-enforcement officials is lawful. The District Court case does not impact the increased sentences (longer prison terms) for convictions of human trafficking, nor that these convicted defendants must register as sex offenders.

The position of the Attorney General of the State of California is that law enforcement needs this information to investigate sex crimes and prevent them before they take place, also claiming this information is not a public record. However, this is a slippery slope in that the next thing the government will seek is to monitor everything we view online, including the books we purchase and read.”

Woman dies after Alpine crash into tree (Sam Spital)

Posted on December 17, 2012 by Caroline Anderson - Senior Support Specialist

COMMENTARY BY SAN DIEGO PERSONAL INJURY ATTORNEY SAM SPITAL:

“On December 16, 2012, the UT San Diego online edition printed an article regarding a 53 year old woman who died as a result of her crash into the flatbed of a semi-truck as she changed lanes on Highway 8, and then ran off the road and crashed into a tree.

The family and/or one of the heirs may seek advice from a personal injury lawyer to evaluate whether to bring a wrongful death case. Even though one is primarily responsible for operating his/her vehicle in the proper way to avoid accidents, the potential defendants and theories of liability in such a lawsuit would be for any dangerous condition as a result of the design and maintenance of roads and highways by the city, county and state government respectively. In addition, the overall safety, as well as design and manufacturing defects of the vehicle the woman was driving can be the principal or actual cause or a contributing cause of her death. As reported by the Centers of Disease Control and Preventing, accidents sadly remain the fifth leading cause of deaths in the United States, coming after heart disease (#1), cancer (#2), chronic lower respiratory diseases (#3) and strokes (#4). See https://www.cdc.gov/nchs/fastats/lcod.htm and the CDC website in general for a wealth of information related to public health issues and problems.”

–Sam Spital

4 suspects arrested in Chula Vista home invasion robbery (Sam Spital)

Posted on December 17, 2012 by Caroline Anderson - Senior Support Specialist

“On December 16, 2012, the online edition of KFMB Channel 8 posted a story regarding a 1:30 a.m. Chula Vista home invasion that resulted in 4 suspects being arrested for robbery, firearms-related charges and conspiracy. The officers were led to the suspects by cell signals and calls made after the alleged crime from an iPhone among other things stolen from the victim.

The reporter did not include any information relating to the background, occupation and/or employment, nor presence or absence of any criminal history of the suspects, only that there were two females and two males, two of whom were 20 and one was 28 while another was age 24. Each of the defendants will be appointed a Public Defender if they do not retain private counsel. Due to a probable conflict of interest, each of the defendants should and, therefore, will have separate attorneys. The role of defense counsel is to investigate the charges, analyze the facts and develop a defense strategy. It is automatic that a criminal defense attorney must safeguard the rights of his client both as to the procedures involved in the case and the elements of the charges. In addition, one should advance a preemptive and offensive attack on the evidence as well as to raise proof of mitigation, and possibly remorse and rehabilitation, if any.”

22 students arrested in drug sting (Sam Spital)

Posted on December 14, 2012 by Caroline Anderson - Senior Support Specialist

COMMENTARY BY SAM SPITAL, CRIMINAL DEFENSE ATTORNEY- SAN DIEGO:

“Fox 5 digital news reported on December 12, 2012 an illegal drug ring was discovered by an undercover drug investigation in which officers posed as students in several high school campuses in the Temecula Valley area of Riverside County, a community adjacent to San Diego. In total there were 22 arrests of which 20 minors were taken to Juvenile Hall and 2 adult students taken into custody were arrested for sales of narcotics and child endangerment. Seized in the sting were cocaine, heroin, methamphetamine (meth), ecstasy, LSD, marijuana and illegal prescription drugs.

It strains credulity that so many of our youth fall into the trap of experimenting with and/or using drugs to feel good. Life has many challenges, but equally true is the fact there are far greater opportunities. However, we have to question whether our schools are providing sufficient information, case studies and material in their curriculum as well as using appropriate resources to build self-esteem, positive values, goals and dreams to motivate students to achieve happiness. Instead, far too many students experiment with drugs in order to get ‘high.’ Substituting artificial, extremely dangerous and addictive drugs only to provide an extremely short lived result can only lead to a trap as in the case of quick sand, offering no long term pleasure, relief &/or remedy while posing the risk of a life time of further complications as well as death. Although so much money is spent to solve social ills and problems, it hardly seems to have had a sufficient impact to reduce the scourge of illegal possession, use and sales of drugs and narcotics.”

–Sam Spital

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