Category Archives: Criminal Defense

People v. Nelson

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The California Supreme Court in the case of People v. Nelson, (#S181611, 01/12/2012), https://www.courtinfo.ca.gov/opinions/documents/S181611.PDF, held the custodial written confession of the defendant, a 15 year old who was tried as an adult, was properly admitted at trial and, therefore, did not invalidate his conviction of the murder of a 72 year old woman and five first degree burglaries. The California Supreme Court overturned the Court of Appeal that had previously reversed the Superior Court murder and burglary convictions.

In the underlying case, Orange County Sheriff Investigators at the outset of their custodial interrogation apprised this juvenile suspect of his right to remain silent and right to counsel, and it was established there was a knowing, intelligent, and voluntary waiver of these Miranda rights. During the course of several hours of interrogation, however, the issue was whether the defendant’s multiple requests to speak with his mother were sufficient to become a post invocation of Miranda. If so, the officers were required by law to halt the interrogation and the defendant’s confession should not have been admissible at his trial. There were multiple requests to speak to his mother that were permitted by the investigators, but the defendant was only able to reach and speak with his brother and grandmother.

The California Supreme Court relied upon the holding of the U.S. Supreme Court in Davis v. United States, (1994) 512 U.S. 452, which held once there is a valid waiver ofMiranda rights, any subsequent assertion of the right to counsel or right to remain silent must be articulated in a sufficiently unambiguous and unequivocal manner to stop questioning; in other words, a reasonable law enforcement officer under the circumstances would understand there to be an actual request for counsel rather than possibly one.

Maples v. Thomas

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The U.S. Supreme Court on January 18, 2012, in the case of MAPLES v. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, (Case #10-63)https://www.supremecourt.gov/opinions/11pdf/10-63.pdf, reversed the U.S. Court of Appeals, For The 11th Circuit.

In the underlying trial for murder, the defendant was found guilty and sentenced to death by the Alabama Court. Thereafter, a world-renowned law firm, Sullivan and Cromwell, on a pro bono basis filed a Petition for post-conviction relief; it is noteworthy that they contended the defendant’s trial attorneys were inexperienced and incompetent, thereby depriving Maples of effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S. Constitution. Later, the two attorneys associated with Sullivan and Cromwell separated from the firm, did not notify Maples and no one else substituted in as attorney. Then, the ruling on the Petition was denied and it was sent to the two former associates of the above law firm. However, none of the lawyers notified Maples and no one filed an official Notice of Withdrawal of Counsel. The time deadline to file a Notice of Appeal had since expired. Soon thereafter, the Alabama Assistant Attorney General wrote to Maples and alerted him he could still file a Writ of Habeas Corpus if he did so in a timely manner. At that point, Maples filed various pleadings in the State Courts and thereafter filed a Writ in the Federal District and U.S. Court of Appeals, both of which denied him any relief.

The U.S. Supreme Court distinguished the situation in which a lawyer’s negligence in failing to timely file a Notice of Appeal does not qualify as cause to excuse the error since the attorney is the agent of the inmate. Instead, the Supreme Court reasoned the failure on the part of the two lawyers to notify Maples of their departure from the law firm constituted abandonment and, therefore, sufficient cause or extraordinary circumstances beyond the control of Maples to relieve him of the procedural default in not filing a timely Notice of Appeal.

People v. Jones

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In a nine to zero opinion entitled UNITED STATES v. JONES, No. 10-1259, the U.S. Supreme Court, on January 23, 2012, https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf affirmed the U.S. Court of Appeals decision that reversed the U.S. District Court criminal conviction of drug trafficking and conspiracy charges. The Supreme Court confirmed the police conducted a search or seizure within the meaning of the Fourth Amendment when it attached and monitored a GPS device to a vehicle. Although there was a warrant issued to the Government, it required the tracking device to be installed within 10 days, but it was actually installed on the 11th day. Therefore, it was deemed a warrantless search in violation of the reasonable expectation of privacy, and the District Court should have suppressed the evidence. As a result of the Supreme Court granting certiorari (after the DC Circuit Court previously denied a petition for a rehearing by the Government), the U.S. District Court sentence to life imprisonment that was reversed by the U.S. Court of Appeals was affirmed. It is noteworthy that the Supreme Court did not decide whether installing a GPS device requires a warrant, and if not, whether monitoring a GPS device over a very brief period of time, such as a couple days, requires a warrant.

United States v. Alvarez

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On February 22, 2012, the U.S. Supreme Court on a Writ of Certiorari heard oral arguments in the case of United States v. Alvarez, Case No.11-210. The question presented is whether the Federal law that makes it a crime to falsely represent oneself to have received the Congressional Medal of Honor is a violation of the Free Speech Clause of the First Amendment of the U.S. Constitution.

Alvarez was an elected board member of the Pomona, California Municipal Water District when he introduced himself at another water board meeting and falsely stated he was a Marine for 25 years and was awarded the Congressional Medal of Honor. Apparently, no one believed him or relied upon his assertions, and he received no benefit from these lies. Yet, he was prosecuted under Federal law, pled guilty reserving the right to appeal, and was placed on probation for three years.

Thereafter, the Ninth Circuit Court of Appeals, 617 F.3d 1198, reversed and held false statements of fact that caused no harm were protected by the First Amendment and, therefore, no crime was committed. The Ninth Circuit Court of Appeals Chief Judge Kosinski concurred in the opinion and his reasoning is of particular note, declaring if false statements were unprotected the government could prosecute as crimes the dentist who claims it will not hurt; the person who claims to be Jewish that goes online at a Jewish Date Service; and anyone who states I am working late tonight. In essence, the Court opined free speech in social interaction should not be censored whether it includes exaggerations, white lies or deceptions.

It will now be up to the U.S. Supreme Court to decide whether the Federal statutory law in question is unconstitutional or the specific restriction on free speech serves a compelling government interest.

Miller v. Alabama

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On March 20, 2012, the U.S. Supreme Court in Miller v. Alabama, Case # 10-9646, will decide whether a juvenile who commits a homicide and is sentenced to life in prison without parole constitutes cruel and unusual punishment and, therefore, a violation of the 8th and 14th Amendments to the United States Constitution.

Miller was 14 years old at the time of the offense of killing a neighbor in a trailer park. The facts are heinous in that after severely beating the victim who could not get off the ground, Miller set fire to the trailer causing the victim to die of smoke inhalation. The defense had argued in its Brief that the trial court should be allowed to consider mitigating circumstances and the age of a minor rather than be obligated by a mandatory sentencing law. The government argued the crime was the most aggravated form of murder (bludgeoning a person to death with a baseball bat despite pleas for mercy/help, and then setting the trailer on fire). Accordingly, the prosecution argued it had appropriately used its discretion in transferring the case to adult court where the jury found Miller guilty of capital murder.

It is noteworthy that in 2010, the Supreme Court barred life without parole for youths under age 18 when convicted for non-homicide crimes in the case of Graham v.Florida, Case #08-7412, May 17, 2010https://www.supremecourt.gov/opinions/09pdf/08-7412.pdf. The Miller Court’s Decision will determine whether the Graham holding should be applied to minors convicted of murder.

What is your opinion? Do you feel juveniles are more vulnerable to external influences, do not have the capacity as adults to exercise mature judgment and as such should not face the same penalty for a homicide?

MISSOURI v. FRYE

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The U.S. Supreme Court on March 21, 2012, in the case of MISSOURI v. FRYE, (Case #10-444) https://www.supremecourt.gov/opinions/11pdf/10-444.pdf, vacated the Decision of the Missouri Court of Appeals, holding the right to effective assistance of counsel guaranteed by the Sixth Amendment of the U.S Constitution extends to all critical stages of a criminal case including but not limited to plea offers that may be rejected or lapse because they were not previously accepted.

In the underlying case for driving on a revoked license, the defendant was charged with a felony since this was his fourth offense, with a sentence of up to four years in prison. An offer of a misdemeanor plea bargain was sent by the prosecution to Frye’s lawyer, who did not convey the offer to his client. Thereafter, Frye pled guilty to a felony and was sentenced to three years in prison. Thereafter, Frye sought relief in state court, claiming his attorney failed to inform him of the earlier plea offer and this denied him effective assistance of counsel as guaranteed by the Sixth Amendment. Frye asserted he would have pleaded guilty to the misdemeanor had he known of the prosecutor’s offer.

The State of Missouri contended they should not be subject to the consequences of a defense counsel’s inadequacies because Frye had an opportunity for a full and fair trial and/or a guilty plea even if on less favorable terms. The Supreme Court opined the State’s arguments do not overcome the fact 97% of Federal con­victions and 94% of all State convictions are the result of guilty pleas. It held “Plea bargains have become so central to today’s criminal jus­tice system that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel hat the Sixth Amendment requires at critical stages of the criminal process.”

In summary, a lawyer has a duty at the plea stage of a criminal proceeding to promptly inform his client of all significant prosecution settlement proposals and to fully explain the alternatives available to his client after a thorough and complete analysis of all of the facts and issues. When a defense lawyer fails to convey a plea offer to his client or provides materially inaccurate advice regarding the underlying charges, and the prosecutor’s burden to prove the evidence beyond a reasonable doubt, the defense attorney’s conduct falls below the minimum standard required for adequate and effective assistance of counsel.

No constitutional right to jigsaw puzzle in jail, judge says

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Regardless of the circumstances surrounding an alleged criminal offense and its resulting trial and conviction, beginning a jail sentence is rarely an easy transition. As such, it can be comforting for defendants to have certain personal belongings in prison with them. But as a federal judge recently made clear, inmates have no constitutional right to those items, and are therefore at the mercy of the court and jail officials when seeking comforts from home.

In the case, an inmate who was serving time in a federal prison for his role in an alleged conspiracy to commit securities fraud requested that his family be able to order and bring him a jigsaw puzzle with which to play during his incarceration. Jail officials refused, and the inmate filed a lawsuit, alleging that his constitutional right to free speech had been violated by the refusal.

Specifically, the inmate argued that possessing the puzzle was an expression of free speech and was therefore protected by the First Amendment to the U.S. Constitution. The judge disagreed, ruling that the inmate had not shown a clear violation of his constitutional rights by the jail’s refusal to allow the puzzle.

The inmate also argued that the prison regulations that forbade the puzzle were unfair and baseless, and that there was no logical reason to ban a puzzle that was a similar size to an allowed book. The judge again disagreed, citing the “limitations on the ability of prisons to process and store inmate property” as the reason that books are allowed but puzzles are not.

What do you think? Should the jail have allowed the puzzle?

San Diego crime rate hits 30-year low

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The crime rate in San Diego County has fallen to its lowest number in 30 years, according to a new report from the San Diego Association of Governments (SANDAG). This reportedly places San Diego third on a list of safest large cities in the U.S., which is determined based on the number of violent and property crimes in the region.

According to SANDAG’s “Thirty Years of Crime” report, violent crimes (which include homicide, aggravated assault, rape and robbery) have steadily dropped since it peaked in 1992. This was the case despite a concurrent decrease in the ratio of officers to citizens. The authors of the report believe the reasons for this are two-fold. First, county officials have aggressively investigated and prosecuted gang activity in recent years. And second, recent state and local laws have significantly increased the jail time and other penalties for violent crimes.

However, there has reportedly been an increase in violent crimes in recent years. There were 82 homicides in 2011, which was a 22 percent increase from 2010. Although the majority of these crimes were reportedly motivated by domestic abuse, the number of reported domestic violence incidents in 2011 dropped by 6 percent from 2010 numbers, hitting its lowest number since the late 1980s. It is unclear whether the number of domestic violence-related homicides plays into the overall number of domestic partner incidents, though.

On the whole, property crimes such as theft and burglary made up the largest percentage of the crime that took place in San Diego last year.

 

Firemen charged with robbery, felony assault, and threatening a witness

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Three firefighters in San Diego pleaded not guilty to felony charges after they were accused of fighting with a pair of brothers, robbing and threatening three brothers. The firefighters, aged, 36, 26, and 29 were charged with robbery, threatening or intimidating a witness, making criminal threats and felony assault. According to reports, the firefighters also caused great bodily injury.

The prosecution stated that one of the alleged victims was leaving a bar when he was involved in a verbal altercation with the firefighters, one of whom made a derogatory comment. The firefighters then followed the man and assaulted him. After they left the bar, the alleged victim called his brother, then pursued the firefighters and there was another fight. It was reported that one of the firemen took a wallet from one of the brothers, removed cash, and a family photo. He also threatened him and said he has pictures of his children so he should not contact law enforcement.

When a police officer drove by and approached the firemen, they found the cash, bank card, and photos of the brothers. The firefighters pleaded not guilty and could face nine years in prison if they are convicted. All were jailed the night of the fight, but posted bail. They were off-duty at the time of the incident.

One of the firemen was a 12-year veteran of the Fire-Rescue Department. According to their defense attorneys, the firemen have strong ties to the community and continue to be employed at the fire department.

Defense attorneys have stated that the brothers were the aggressors and the firemen acted in self-defense. Defendants will face potential penalties enforced by the criminal justice system as well as any personal and professional consequences of a criminal allegation.

 

San Diego baseball player involved in alleged DUI hit-and-run

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Matt Bush, a San Diego native and aspiring professional baseball player was reportedly involved in a series of hit-and-run accidents last month, which resulted in the serious injury of a motorcyclist. This is just the latest of a series of similar incidents for the 26-year-old, who has seen his once-promising baseball career stall as a result of his issues with alcohol.

According to police reports, the series of alleged DUI accidents began when Bush crashed a teammate’s SUV into another vehicle. The driver of the second vehicle later told police that he had been hit by a SUV matching the description of the one driven by Bush, which had backed up at a red light to make an illegal U-turn following the crash.

Later that day, the same SUV crashed into the back of a motorcycle, causing its 72-year-old rider to suffer serious injuries. Bush reportedly fled that scene as well.

He was later apprehended by police, at which time he told police that he had been involved in yet another accident, in which he had collided with a pole, between the crash with the first vehicle and the motorcycle. Bush was arrested and charged with multiple criminal offenses in connection with the series of alleged DUI hit-and-run accidents. In addition, the motorcyclist reportedly plans to file a personal injury lawsuit against Bush and the owner of the SUV involved in the crashes.

The arrest is just one in a line of alcohol-related incidents that have derailed Bush’s once-promising professional baseball career. In 2004, Bush was the top overall pick in the MLB draft, but has spent the last two years playing for a minor league team after multiple ‘reported alcohol issues.’ Hopefully, he is able to get these issues under control and get back to his former and future baseball success.

 

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