Santa Rosa Lawyer Blog

Why do you need to hire the best lawyer you can find? Because when it comes to your health and well-being, I almost suspect that the state of California doesn't give a damn whether you live or die.

Wait -- that's not true. Based on the way that the California Department of Corrections and Rehabilitation and Governor Jerry Brown behave, the state of California more than gives a damn. They actually want prisoners to die, and they're working hard to make it happen.

Medical care in California prisons -- all of the California prisons -- is atrocious. It's so atrocious that a federal court, citing the "depravity" of the system, ordered it into receivership in 2005. A receivership, in essence, is what you create when your 4-year-old kid wants to make breakfast in bed for Mother's Day -- you nod and smile, fish the egg shells out of the pancake batter, put out a couple small fires on the stove, and let the kid carry the tray into the bedroom. Congratulations, California -- you've achieved "adorable moppet" status on the Competency Scale!

"But Charlie," you say, "that was eight years ago! Surely things have improved under the watchful eye of the federal government, right?" And, wrong -- strangely enough, help from the people who brought you the IRS, 'Too Big To Fail,' and 'FEMA Goes To New Orleans!' have yet to fix things. Not that it's necessarily the federal government's fault, of course. Remember, the state wants its prisoners dead.

More specifically, the state wants its prisoners to die of Valley Fever, an airborne fungus found throughout California's Central Valley. It's a potentially awful disease -- complications include severe pneumonia, lung nodules, and disseminated disease, where the fungus spreads throughout the body and causes skin ulcers, severe joint pain, heart inflammation, urinary tract problems, abscesses, bone lesions, meningitis, and death. According to court filings, Valley Fever has killed nearly 40 inmates and hospitalized hundreds.

The federal official who controls prison medical care has ordered the most vulnerable prisoners -- more than 3,200 men and women -- transferred out of the two prisons with the highest Valley Fever risk. The Brown Administration is fighting the transfer order tooth and nail, apparently because it would be "confusing," "premature," and just plain inconvenient. Not as confusing and inconvenient as dying prematurely of an avoidable disease in a prison hospital, of course, but then that's the rub -- once you're in prison, you just don't count for much. If the state gave a damn, they wouldn't have been ignoring this problem since 2006.

I'm no Rhett Butler -- I give a damn, and I'm damned good. If you want to be treated like you count, give me a call.

As we all know (myself from expensive personal experience), it is illegal to talk on the phone while driving a car. And as all of us -- well, all of us except the California Supreme Court -- also know, a modern 'smart' phone is a lot more than a telephone.
A smart phone can make calls, hands-free or otherwise. More importantly, a smart phone can play music through a car stereo and provide turn-by-turn directions for the driver. What it can't do is play music through a car stereo or provide turn-by-turn directions for the driver (or anything else) if the driver touches the phone.

According to the Appellate Division charged with reining in Fresno County, if you use your hand to use your cellphone for directions or music or anything at all while you're driving, you're breaking the law. Per the court, "[o]ur review of the statute's plain language leads us to conclude that the primary evil sought to be avoided is the distraction the driver faces when using his or her hands to operate the phone. That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails."

According to Commissioner Lawrence Ornell of Sonoma County traffic court, there "was considerable disagreement ... on how the law applied to the use of a smart phone for purposes other than as a traditional 'cellphone.'" And according to Commissioner Ornell, that confusion is now gone. Using a navigation device held in your hand is OK; using navigation on your Galaxy Note is not. Cranking tunes on an iPod is OK; cranking tunes on an iPhone is not.

What's the answer, then? What's a law abiding citizen who wants to listen to his or her lawyer to do? Well, Mr. Spriggs "was cited for looking at a map on his cellular phone while holding the phone in his hand." The question was whether that conduct violated Vehicle Code section 23123 (a), which states that "[a] person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving."

Using the regular radio in your car isn't illegal. Using GPS in your car isn't illegal, and apparently looking at a map on your phone isn't illegal unless you're holding the phone. Buy a good mount for your phone, get hands-free dialing set up, and drive carefully. And watch your six -- Smokey is everywhere, and the government is hungry.

This is a common-enough question, and it's also intelligent, reasonable, and responsible. And like many similar questions, the answer is surprising.

The answer is 'Nothing - nothing at all.' If you listen to your lawyer -- and you should -- you'll understand that there is no such thing as a safe level of blood alcohol in a driver.

My advice on drinking and driving is not my tip of the hat to dire public safety warnings, and it's not an "all DUI laws are nonsense" rant, either. I don't make public policy, I just try to save you from it. Public policy these days is to criminalize more behavior while increasing penalties, and that's what my law firm wants to help you avoid.

It's not as if one bourbon, one scotch, or one beer will make you a dangerous driver. Most credible sources agree that impairment begins around a BAC of .05%. A five-foot-four, 140-pound woman who has two drinks in 90 minutes will blow a .039; she's unimpaired, and well below the legal limit. A six-foot-five, 275-pound man such as myself could pound a six-pack in an hour and blow a .063 -- impaired, but not necessarily illegal. Thanks to my friends at http://bloodalcoholcalculator.org/ for the calculators. And no, height doesn't matter

'Not necessarily illegal' translates into that's 'you might beat the rap, but you won't beat the ride.' If the police pull you over for a traffic violation and you smell a little boozy, they have the ability to arrest you for 'suspicion' of DUI. If you blow a .04 or so, like our hypothetical friend above, they could let you go -- or they could arrest you and perform a blood draw to 'find out for sure.' Driving after having a drink or two is unlikely to get you drunk, legally or otherwise -- but it can get you in a lot of trouble.

My love is like a red, red rose
That's newly sprung in June;
My love is like the ... handcuffs' click?
Because I ... loosed balloons?

Unfair art thou, Florida cop,
And Florida law as well!
Five years in prison? For balloons?!
I must ask "What the HELL?!?

Five years upstate for sending off
A dozen red balloons?
I've got to say, that law's an ass
In need of several prunes."

When Law's an ass, and Justice blind
I'm there to Represent
The Spirit (not the Letter, mind)
Of the laws they claim you bent.

Every once in a while, a law enforcement travesty comes along that just begs for special treatment. The Florida Highway Patrol's reaction to Anthony Brasfield's big romance was, well, special - and not in the rather touching way that Mr. Brasfield's "crime" was special.

What did Anthony Brasfield do? He bought a dozen heart-shaped balloons for his girlfriend and sent them sailing into the morning sunrise while she watched and, I assume, melted just a little bit inside because she felt loved and cherished and special.

And what, you may ask, did the Great(ly disturbing) State of Florida do? They arrested Mr. Brasfield and charged him with a felony punishable by up to five years in Florida State Prison for "polluting to harm humans, animals, plants, etc." under the Florida Air and Water Pollution Control Act. Basically, he could end up serving 5 months in prison for each balloon. As my 3-year old son says, "That don't SOUND right."

What's a man to do? Well, if I were licensed to practice law in Florida I'd suggest that the prosecution drop the case like a hot potato - and drop it far from either air or water, lest they get themselves in trouble.

That failing, I'd suggest that Florida's Title XXVIII: Natural Resources; Conservation, Reclamation, and Use Section 379.233, sub-sections (2) and (3) would be a less imbecilic fit. They hold that "[i]t is unlawful for any person, firm, or corporation to intentionally release, organize the release, or intentionally cause to be released within a 24-hour period 10 Photo by nickyfern
or more balloons inflated with a gas that is lighter than air" and that doing so is a noncriminal infraction, punishable by a fine of $250.

A $250 fine instead of 5 years in prison? Yeah, that'd be great.

Constitutional arguments notwithstanding, not everyone is allowed to own or possess a gun. For instance, people under a certain age (16 or 18 -- it depends) may not own firearms at all, and people under 21 may not own handguns. In California, there is an additional legal class of 'prohibited people' who cannot own or possess guns either.

You are a 'prohibited person' if you have been convicted of any felony or a violent misdemeanor. You are also a prohibited person if you are the subject of a domestic violence restraining order or have been deemed 'mentally unstable.' Those prohibitions aren't necessarily a bad thing -- no one could argue that the world is a better place because Adam Lanza or James Holmes had access to guns.
What IS a bad thing, is getting caught with a firearm if you're a prohibited person. A bad thing, as in 'convicted of a felony and incarcerated for years.' It used to be that it was fairly hard to get caught, since the police weren't exactly going door-to-door and searching for prohibited persons with guns.

It used to be. It isn't now, though -- now the police go door-to-door and search for prohibited persons with guns. The California Department of Justice has the "unique" 'Armed and Prohibited Persons Program' under which the a 'special task force' uses a computerized system to search five different databases for people who bought guns once but may no longer own those guns. New legislation passed today (March 7, 2013) just authorized $24,000,000 to hire 30 special agents, six supervisors, and an unspecified number of support staff to go door-to-door and search for prohibited persons with guns.

In other words, if you or someone you know has a gun and isn't supposed to, GET RID OF IT. Get rid of it SOON, and get rid of it LEGALLY. Here's how: call a local attorney of excellent repute and say "Hi, Mr. Applegate -- I have some guns I need to get rid of and I need your help." A skilled, knowledgeable attorney can help you execute a Power of Attorney that lets your lawyer legally take possession of illegal firearms right away, removing you or your loved one from harm's way. Your lawyer can then help you legally transfer the firearms to a family member or legally surrender them to the police for destruction. With the right assistance, you can even legally sell firearms that you're no longer allowed to possess and so turn potential hard time into real hard cash.

If you're under the gun, you need a hired gun who can get you out of harm's way. Give me a call; I can help.

In California, the first step in a domestic violence case is often the alleged victim's filing an application for a 'CLETS TRO.' TRO stands for Temporary Restraining Order; 'temporary' means between one and five years, renewable indefinitely. A CLETS TRO is one that is entered into law enforcement databases and shows up whenever the restrained party's name is run for identification.

There is a right to a hearing on a CLETS TRO, but it is a limited right. Because the scope of the hearing is limited, it is much easier to have someone restrained under a TRO than it is to convict someone of a crime. Why? Because ...

Because there is no right to a jury trial -- the judge hears evidence and decides the case. Because there is no right to an attorney -- if you can't afford one, you represent yourself. Because the burden of proof is lower than in a criminal case -- the person seeking the TRO only has to produce a preponderance of the evidence, rather than evidence beyond a reasonable doubt. Finally, judges can, and often do, choose to restrict what evidence and testimony the parties can present at the hearing. For all of these reasons, it is much harder to defend an application for a TRO than a criminal case. Accordingly, even when the prosecution refuses to press charges because of insufficient evidence, the Family Court often still issues a CLETS order.

The aftermath of a CLETS TRO is brutal. The restrained party suffers a substantial reduction of, or outright denial of, many Constitutional rights. Among those rights are free travel, free association, 2nd Amendment firearms rights, and free speech. How are those rights affected?

The obvious one is that in California a CLETS TRO will always require the restrained party to surrender any and all firearms. "Bah!" cry the nay-sayers. "And what of it? Guns are soooo RISKY; let's just err on the side of caution and strip a Constitutional right after a quick, pro se hearing decided on the basis of limited evidence." Maybe the defendant never owned a gun. Just for the sake of argument, let's pretend he didn't. Heck -- let's pretend that every gun in the world (POOF!) just disappeared. Guns are not an issue, so no problem! You're simply forbidden to come within 150 yards of your spouse, children, and other family members; to communicate with them either directly or indirectly; to drive your own car or play with your dog ...

You cannot live with your spouse; you must move. You cannot come within 150 yards of your spouse's house or workplace; you need to make substantial changes to your daily commute. You need to find and join new schools, churches, bars, concert venues, AA meetings, book clubs, volunteer opportunities, dog parks -- anywhere that your ex goes, you can't go. You may need to quit your job if you can't work different hours or transfer to a new location. You cannot go see your kid's school play, or send your kid a birthday card, or tell your kid's teacher to tell your kid that you're proud of his good grades.

These aren't exaggerations, either. I once prosecuted someone for violating a 150 yard stay-away order by driving past his neighbor's house on a public street; the next-shortest route to the 'perpetrator's' home was 10 miles and 40 minutes longer. I've seen people criminally charged with failing to leave the grocery store/coffee shop/laundromat fast enough when the 'protected party' came in; I've seen people spend thousands of dollars on bail and lawyers to prove that the Facebook photo of them holding a rifle on a hunting trip was taken before the CLETS order went into effect ...

Traveling unhindered, freedom of speech, associating freely, and making an honest living are all Constitutional rights. Having them stripped from you because of false accusations made during a 30-minute hearing with no right to a lawyer and a low evidentiary burden is a Constitutional nightmare. A good attorney representing you may be all that stands between you and the Freddy Kruger of the legal system.

Almost every case, criminal or civil, will end up settling before it goes to a jury trial. That's not necessarily a bad thing; the legal system is perilous, trials are expensive, and juries (like some dogs) can turn on you. But why? Why would my lawyer ever advise me to plead?

Well, for lots of reasons. First of all, TV-worthy "A-HA!" moments are few and far between. Jury trials can be pretty boring, and bored people don't pay attention. What's so boring? Well, for starters, the mandatory instructions that the poor judge is forced to read to every jury, at every trial, for what must seem like forever and ever and ever. Imagine reading this out loud for the 317th time and trying to sound enthused:

In regard to the trier of fact, reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. If, after carefully considering, comparing, and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

That's not just boring -- it's confusing, too. Remember, the jury isn't reading that to themselves. They're listening to it while sitting on uncomfortable chairs, looking at the rest of the people in the courtroom, and wondering what the defendant did. As a result, juries frequently don't understand what they are doing. In one study, half of jury members didn't understand that the defendant doesn't need to prove him- or herself innocent. Only a third of jurors understand the judge's definitions, and a terrifying 86 percent of criminal jurors don't know what constitutes proof of guilt. When jurors are tested on the things they should absolutely know after hearing the instructions, most of them score about 40 percent.

To summarize, then: The jury of your peers that will decide your guilt or innocence is quite possibly ignorant, bored, and confused.

Why would you trust your freedom to a group of people if two out of three of them don't have the basic knowledge needed to decide your fate? You wouldn't - unless you had nothing to lose or your lawyer told you to.

A trial is expensive and risky for a defendant. That means it's profitable and exciting for your lawyer. If you hired a lawyer, you ought to trust that lawyer. If you trust your lawyer, you should listen to them -- especially if what he's saying is, in effect, "Keep your money -- a trial isn't in your best interest."

Sometimes a news story comes along that leaves me damn near speechless. This is one of those times. A little background first:

Paragould (official motto: "A City as Unique as Its Name!") is a small town in the northeastern corner of Arkansas. With 22,000 people living there, Paragould's population is a little smaller than Windsor's. Apparently, though, Paragould's population is a heck of a lot more unruly than Windsor's - either that, or Mayor Mike Gaskill and Police Chief Todd Stovall have just lost their minds.

Here are a few quotes from Chief Stovall that just make my brain hurt:

"[Police are] going to be in SWAT gear and have AR-15s around their neck."

"If you're out walking, we're going to stop you, ask why you're out walking, check for your ID. We're going to do it to everybody."

"This fear is what's given us the reason to do this. Once I have stats and people saying they're scared, we can do this."
Photo by tome213

...and here's Mayor Gaskill chiming in as the voice of reason:

"We're going to do it to everybody... They may not be doing anything but walking their dog, but they're going to have to prove it."

In other words, the streets of Paragould are now patrolled by police in SWAT gear, toting assault rifles and demanding papers from everyone they meet. Better yet, if someone won't produce identification, Stovall said that "officers would not back down" and that "individuals who do not produce identification when asked could be charged with obstructing a governmental operation."

There are some famously dangerous places in America - Compton, California; Detroit, Michigan; Camden, New Jersey - that don't need to be patrolled by heavily armed riot police. Paragould must be downright terrifying! Just how bad is the violent crime rate there, anyway?

Overall, not very bad. The overall violent crime rate in Paragould is below the national average. Except for forcible rape, every category of violent crime in Paragould is below the national average! Unless those rapes are being committed on sidewalks or lawns, it's hard to see how demanding identification papers from dog walkers will help. Paragould is safer than Santa Rosa, but I've yet to hear anyone ask Mayor Bartley to have the SRPD to start shaking down 4th Street shoppers for ID at gun point. I hope I never do, because I don't want to live here or here or here.

So how does Chief Stovall justify what amounts to declaring martial law? Fear. "This fear is what's given us the reason to do this. Once I have stats and people saying they're scared, we can do this." Well, that scares me, and that's why I do what I do. Chief Stovall and Mayor Gaskill and their ilk won't stop themselves; tyrants never do. That's why I stand up for people and protect their rights.

If you don't like being treated like a criminal, call.

Stick 'em up, stick 'em up
Concealed Weapons
The most dangerous you ever saw
Stick 'em up, Concealed Weapons
Concealed Weapons
They oughta be against the law

- The J. Geils Band

With apologies to Peter Wolf and the rest of the J. Geils Band (I love you guys - Worcester is right down the road from where I went to school!), California's obsessive desire to outlaw 'weapons' (concealed and otherwise) is ridiculous, counterproductive, obnoxious, and just plain stupid. Why? Because just about anything can be used as a weapon. Making all weapons illegal makes everything illegal, and that begins to make life ridiculous.

The road to hell is paved with good intentions, or so I'm told. I'm here to tell you that the hellish path that is California's Penal Code is knee-deep with laws written by the well-intentioned but naïve, the willfully ignorant, and the venal and shameless.

I mentioned above that just about anything can be used as a deadly weapon. Before you write that off as a lawyer's self-serving exaggeration, here are some examples for you to consider: a cake pan, a delicious pasta dish, an amorously wielded hammer, and a rooster (!). Most of these 'weapons' aren't really weapons, and most of them aren't prohibited. Why mention them, then? Because of the hammer.

A hammer is just a tool -- specifically, it is "a hand tool consisting of a solid head set crosswise on a handle and used for pounding." Almost every household in America has a hammer; almost everyone has used one before. By definition, a hammer IS NOT A WEAPON -- unless you're a cop or a prosecutor, that is, and unless you squint a little when you read the Penal Code ...

Penal Code section 16590 (m) outlaws the possession of "a leaded cane or an instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot, as prohibited by Section 22210." In other words, a stick with a weighted end or "a staff, crutch, stick, rod, pole, or similar device, unnaturally weighted with lead" is illegal. Sounds an awful lot like a hammer, doesn't it? Of course, your hammer probably has a steel head, not a lead head - maybe that's enough of a technicality to win a trial. Then again, maybe you're driving home from the Grainger Industrial Supply in Rohnert Park with a nice new dead-blow hammer that you bought for your cousin's birthday present when you get stuck in a sobriety checkpoint. Congratulations -- you're under arrest!

Sounds ridiculous, doesn't it? Well, that's because it is. Among the many things that have been legally classified as deadly weapons in California are bricks, bottles, chairs, lamps, cars, motorcycles, pencils, pins, and dogs.

The California approach to public safety is easy to summarize: Outlaw everything, arrest and overcharge everyone, and keep everyone on probation.

If you need some help keeping yourself safe from our benevolent protector, give me a call.

Police dogs have been commonplace in America for well over 100 years. Just like the police, some of these dogs have performed near-miracles while assisting victims of crime - and these dogs have sometimes been used as tools of oppression, violence, and terror against the citizenry. Not surprisingly, as American policing has developed and changed, the use and abuse of police dogs has changed as well.

Police dogs are most commonly thought of as drug-sniffing dogs these days, but that wasn't always the case. There are two U.S. Supreme Court cases on the docket that look like interesting dog cases; both concern privacy rights. Florida v. Jardines was argued on Halloween (here's hoping the decision doesn't scare us all to death) and asks whether the police violated the Fourth Amendment by taking a dog that had been trained to smell for drugs to the door of a house where they suspected that marijuana was being grown.

Once Jardines and the companion case are decided, I'll get into the particulars of how the Court decided the cases and what that means to us. Until then, though, and as a nod to the 'Originalist' leanings of the lovely and charming Antonin Scalia, here's some historical background on how dogs have been used and misused by the government.

In the early days, police dogs were used to track and kill enemies of the state. The French had a police dog program from the 1200s to the 1700s that was apparently quite popular - until a French Naval officer, out after curfew, was attacked and killed by the dogs. The pro-police, pro-dog boosters at Police-dog.net don't mention how many people who didn't work for the government were injured or killed by the Dogs of St. Malo, but my research turned up a New York Times article from 1883, quoting a book from 1869, that makes France's version of McGruff the Crime Dog sound pretty terrifying:

We walked round the ramparts, and were shown the little gate down which were sent, every night, the watch-dogs of St. Malo, 'chiens Anglais qui s'appellent dogues.' Shut up during the day, they were let out at 10 at night and recalled in the morning. ... When let loose at night, a warning bell was rung to apprise the inhabitants as they tore the legs of everyone they met. In 1770 a naval officer, trying to force a passage, was attacked by a troop of these dogs prowling between St. Malo and St. Servan; his sword was useless as defense and, exhausted, in despair he threw himself into the sea - but here he was followed by the dogs and torn to pieces.

Brittany & Its Byways - Some Account Of Its Inhabitants And Its Antiquities; During A Residence In That Country. Mrs. Bury Palliser, 1869 (London)

In other words, the French used dogs to enforce curfews by allowing vicious police dogs to roam the streets after dark and attack and kill anyone who broke curfew.

Good thing that America isn't all that French! And, too bad that the French aren't alone when it comes to oppressive government. America's roots are more British and Spanish (depending on your coast, of course), and both the British and the Spanish used dogs in Colonial times. Dogs were used to control the native peoples that had already been conquered and captured, or were still being exterminated. The British used bloodhounds to hunt down the native population of Jamestown in 1610 and used mastiffs to capture and kill them. Similarly, the Spanish conquistadors brought war dogs with them to the New World.

The Spanish war dogs were ferocious mastiffs and great Danes that were trained - and used - to kill.

The British colonists at Jamestown, and the Spanish conquistadores in Mexico, are ancient history now - and the starting point of America's 400-year-long history of using dogs to cow, capture, kill, or convict the citizenry. Next time, we'll look at some post-Revolution developments and the beginning of the American Age of police dogs.

Continue reading "The Long Leash of the Law (Part One of a Series)" »

The United States of America is a great country, and a land of great opportunity. Millions and millions of people have come here during the last 500 years to find better jobs, better wages, and better lives with more safety and more freedom. Most of us (or our parents, or our great-great grandparents) found some, if not all, of what we came here to find.

It is a great country, but it is not necessarily a fair country. What do I mean by that? To put it simply, I mean that not everyone who lives here actually gets treated the same way. This shouldn't be news to anyone who knows their American history.

After all, some of the first people who came here were the Puritans, a group of religious martyrs who fled Europe because they were oppressed. One thing they did when they got here was to start killing the Native Americans who had welcomed them. Then they started killing Quakers for worshipping God the wrong way. Most famously, they even killed a number of their own community for 'witchcraft.' Apparently the Puritans thought that oppression was just fine, so long as the oppression was being done by them and not to them.

The Puritans weren't alone in their hypocrisy. Almost every generation in America has had some kind of bogeyman to fear, some 'other' that it identified as The Enemy and worked against. My fellow Americans have agitated, legislated, raged, and rioted against Armenians, Irish, Germans, Chinese, Native Americans, Jews, Catholics, 'White' people, 'Black' people, Spanish-speakers - everyone, really. Except for the Native Americans who got here first, it seems that every group that comes to America tries to oppress the next group that comes to America.

So, what does this mean to the undocumented, or to the legal resident who has not naturalized? It means you have to be on your best behavior, because a single foolish mistake or bad decision can ultimately get you deported. That's not fair, is it? After all, a U.S. citizen can't be deported for petty theft or DUI. But an undocumented immigrant can, and sometimes a legal resident can, too. It isn't fair.

It isn't fair, and it doesn't have to be - it's the law. The law isn't fair, and the justice system isn't always just. If you or a loved one has a legal problem that could become a residence problem, call me.

Continue reading "A Letter To The Undocumented" »

There are a nearly ridiculous number of axioms in the law -- pithy sayings that convey a fairly complicated idea in very few words. It seems that most of them are either in Latin (res ipsa loquitur!) or deal with something unpleasant (the law is an ass!), or both - (inter arma enim silent leges).

I propose that we add one more -- no givesies backsies, no black magic. Sadly, it seems like we may need to remind some of our prosecutors of that old playground rule to help them keep in line.

It is a pretty simple concept, really: when you make a deal, you keep your end of the deal. Once you come to terms and shake on it (or offer diversion and a dismissal of the criminal charges against a defendant, on the record, in open court) you have to do what you said you would do. You can't welch on the deal. (I know, I know -- really, one would 'welsh' on a deal. But I'm a Welshman, dammit, and I'm not going to use the 'proper' spelling.)

Well, I have a client -- Chopper Charlie, we'll call him. Nice guy, but he rides a big ol' Harley that he built himself, and he has tattoos and a nice Willie Nelson-looking ponytail, and generally looks more like an outlaw biker than an investment banker. In other words, he's a cop magnet.

Sure enough, Officer RoboCop's sense of propriety, self-restraint, and respect for the constitution were all overpowered by his magnetic attraction to Chopper Charlie's dangerous hair. A traffic stop for reckless driving led to a search, and the officer found some marijuana and a couple of knives. Chopper Charlie was cuffed and stuffed, and he lawyered up -- so far, just a typical day in Sonoma County criminal law.

He was charged with reckless driving, possession of an illegal switchblade knife, and illegal possession of marijuana in a motor vehicle. Of course, the knife wasn't actually illegal -- it was shorter than the CHiP said it was (Ladies? Sound familiar?), so the DA dismissed that charge. And the marijuana wasn't really illegal either, because of that whole Proposition 215 thing that you may have heard of, so the DA dismissed that charge as well. All that was left was a reckless driving charge, based on the word of a cop who literally couldn't even use a ruler properly. Time for a graceful exit, thought the DA -- time to offer Pre-Trial Diversion.

Pre-Trial diversion is an odd little duck, meant to unruffle society's feathers without doing permanent harm to the defendant. Sometimes a fundamentally decent person has a really bad day and does something that is out of character and illegal; sometimes a young person with promise and a bright future, or an elderly person in the early stages of mental decline, makes a foolish mistake. In such a case, the DA can offer pre-trial diversion to make everything right. Take a class about the evils of stealing or drugs, m'kay, and do some community service, and the charges are dismissed. Go, and sin no more!

Chopper Charlie, whose momma didn't raise no fools, took that offer of diversion and ran with it. He did every little thing that the DA asked him to do, and fast. Then the DA said "We take it back. You can't have diversion for reckless driving; that's against our policy."

Well, my momma didn't raise no fools either, and only a blithering idiot would try to pull that kind of crap with my father. No WAY was I going to allow my client to stand there with his hands in his pockets while the prosecution yanked the rug out from under him.

I did what any self-respecting lawyer should do: I researched the law to confirm that my instincts were right, and that the DA didn't have a leg to stand on when she tried to claw back that offer. Once my instincts were confirmed, I wrote a big, beautiful memo replete with footnotes and exhibits and to the judge and asked him to make the DA follow the law. The DA squawked, of course, and painted a grim picture of the bleak, terrifying future that could await us all if the judge made a precedent by granting my request.

Apparently, a future where the prosecution has to keep its word is frightening to some. Not to me -- and not to the judge, either. He dismissed the charges then and there, and said he couldn't see any way that the DA could justify taking the offer back from Chopper Charlie. My client got his diversion and his dismissal, and I got another win for the good guys -- it was a great day.

The only real problem is that the judge said that he didn't see this case as setting any precedent, and I'd already come up with a cool Latin axiom: Non reacceptavit donum semel datum, et nullum malum magicae -- "No give-sies back-sies, and no black magic."

Continue reading "No Give-sies Back-sies, No Black Magic" »

Sometimes the evidence is stacked against you. There's a clear, well-lit video on which you can be seen and heard stating "As God is my witness, my name is John Q. Public and I am acting of my own free will!" before punching someone in the face, or drinking 10 shots of Jägermeister and driving a stolen car into a swimming pool, or shoving a multi-pack of Frito-Lay products down your pants and running out of a 7-11. Sometimes there's no witness whose credibility has to be weighed, no mistaken identity, no profiling. Sometimes there's just no argument to be made you didn't commit the crime.

It doesn't happen often. But when it does, the difference between having a lawyer and having a good lawyer is crucial. At this point, guilt or innocence isn't the question. The question is "What price are you going to have to pay?" Time in jail? Your home? Your job? Your reputation and respect? Your money? All of the above?

When you're in that vulnerable position in front of the judge, your attorney is there for two reasons: to fully understand what circumstances got you into your predicament, and to tell your story -- the important and beneficial parts of your story -- to the judge to help sentencing go your way.

Your lawyer needs to take the time to get to know you and how you got into the jam that you're in. He also needs to know what impact the arrest has had on you, what you're living for, what changes you've made in your life.

One of the most disheartening parts of being in the criminal justice system is that you're looked at as a criminal instead of as a person -- a person with reasons, motivations, pressures, and a limited number of choices. If your lawyer doesn't take the time to know you, he can't make a nuanced and knowledgeable argument to the judge at sentencing. Lots of people had hard childhoods; lots of people have substance abuse problems. Getting past the 'what' and into the 'why' -- getting at the core of your life -- makes you a real person to the judge, and that can lighten your penalty.

One of my recent clients was charged with a gang-related assault causing great bodily injury. There was solid evidence to prove the crime, which he had committed, and our best witnesses were in jail or in other states. He was 'guilty' because we weren't going to win a trial. The DA offered him a 'deal' of eight years in prison and pointed out that his maximum exposure was more than 15 years. My client served nine months in county jail and went home.

He could be finishing up his first full year in prison, but he's not. He's a free man working full time, helping his little brother and sisters with homework, and spending his free time with his sweetheart and her baby girl. How did we do it? We worked our tails off to weaken the prosecution's case, and we showed the judge that the prosecution witnesses were lousy. I got to know my client well, and I got the judge to see the man my client really is. Once I got the judge to see him as a person, I could convince the judge that he deserved another shot at a regular life.

Continue reading "Your Good Lawyer and Your Good Deeds" »

It may not have been a big story in the news, but a recent Press Democrat article caught my eye: Satanic graffiti was found on a sign at the Episcopal Church of the Incarnation on Mendocino Avenue in Santa Rosa. I've had clients who were charged with graffiti, and this case has an obvious interesting twist with the whole 'satanic' element. Recently, though, it got even more interesting.

A local man named Ryan Fortner was arrested, questioned, and jailed for committing this crime. But then the Santa Rosa police released him and arrested another man. There's strong evidence that the second man, Kyle Eric Schaller, did the crime -- he was known to have scrawled pentagrams and the like before, he had the pens, and he looks like the guy on the surveillance film.

Schaller is the defendant, but for me Ryan Fortner is the star of this story. Here's why: The police say that he confessed.

He is, by the police's account, an innocent man, wrongly charged. Yet, he allegedly said he did it. How did that happen? When questioned by the police, he must have thought "there's no harm in just talking to the police, I'm innocent." Then he got confused, or threatened, or otherwise coerced into giving a false confession, or there was some other reason that led to the false confession.

The police are under pressure to make an arrest in their cases, but that's different than actually solving the case. When they arrest someone, they do it because they think he's guilty and they're on to the next case. In major cases -- murder, rape -- they work hard to make sure that if they go to trial, they've got enough evidence to convince a jury. But for minor crimes -- like graffiti -- they may not work all that hard if they're sure they've got enough to convict you.

Whatever the circumstances in this case, the important thing is that -- without a lawyer present -- he talked to the police, was arrested, and confessed to a crime he didn't commit. If he'd had a competent lawyer with him that probably wouldn't have happened.

It's hard to say how convincing Fortner's false confession was, or how convincing it needed to be to satisfy the police. I'm not speculating on what occurred prior to the confession, but I do know a cop's lying to obtain a confession does not make the confession involuntary as long as the police interrogation was not 'coercive.' (Sotelo v. Indiana State Prison, 850 F.2d 1244, 1251 (7th Cir.1988). According to Steve Irsay of Court TV, "only direct threats of violence and promises of leniency are clearly prohibited."
The US Supreme Court allows interrogators to lie about witnesses, evidence, and more. That's right: you can't legally lie to them, but it's not illegal for them to lie to you.

An old cliché says that if all you have is a hammer, everything looks like a nail. Well, if all you have are handcuffs, everyone looks like a perpetrator. The criminal justice system will look at you as guilty unless and until it has a reason to think you're not. Don't just assume that the criminal justice system is competent and fair -- make sure that it is. Hire a sound, trustworthy lawyer to represent you and make the criminal justice system competent and fair.

If the police want to talk to you, talk to a competent lawyer first. You may know that you're innocent and therefore think that you have nothing to fear. You're wrong. Consider some facts:
• In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.
• The average length of time served by exonerees is 13 years.
• The most common bases for exoneration were the real perpetrator was identified (74%) or that new scientific evidence was discovered (46%).

Continue reading "You Have The Right To Remain Silent" »

Most of us have found some lesson in our personal lives that we needed to learn more than once -- sometimes over and over again. For 72-year-old Karren Erecius of Santa Rosa, the lesson was not to get behind the wheel when she'd been drinking. In March of this year, she was arrested for her sixth DUI in nine years.

Ms. Ericius' drinking has become a problem. That's not a medical opinion -- I don't even play a doctor on TV, let alone diagnose people over the Internet. Still, my professional opinion is that if your drinking leads you to hire an attorney more than once, your drinking is a problem. Repeat offenders need more than legal advice; a good lawyer can give you more.

Part of what a good lawyer should do is help you explore ways to avoid trouble. If you're reading this, you're probably not in jail for your sixth DUI. If your loved one is, though, you're likely thinking that they need help. You're right, too -- they need help to resolve their legal issues, and help to stop getting into trouble in the future.

Legal help often focuses on 'guilty/not guilty.' The legal system is complicated, and there are loads of complex technical issues involved in DUI law. A good lawyer knows how to exploit those technicalities -- how to find the holes in the prosecution's case -- and may be able to get you out of trouble. Whether someone made a mistake and caught a first DUI, or has a bad drinking problem and just got popped for the umpteenth time, they'll want to stay out of jail. Everything is easier to deal with when you're out of custody.

Sometimes people are demonstrably, provably, and undeniably guilty, and sometimes even a good lawyer can't get or keep a guilty man out of jail. Jail may suck, but it doesn't have to be a total waste of time. While someone's in custody, they can use that time to address their underlying drinking problem. That may help with defending their case or reducing their sentence; it can also help them avoid getting in trouble in the future.

Sonoma County's jail (a lovely facility, as far as jails go) has programs available to inmates that can help treat substance abuse problems and can help persuade the court to go easier on you. TASC (Treatment Accountability for Safer Communities) is part of Sonoma County's criminal justice system -- the part that provides treatment for substance abuse and mental health problems for eligible inmates. TASC can recommend that an inmate get alcohol and drug treatment, and a good lawyer can help get them in. With proper advocacy, jail time can be spent out of jail and in residential treatment -- in Warren Zevon's Rehab Mansion, not with Johnny Cash singing the Folsom Prison Blues.

If you get accepted to the treatment facility even before you're convicted, the court is more likely allow you to serve your time there. Your lawyer can help you to get into that rehab facility. If you're going to have to do time, do it in the most comfortable place, and the place where you're going to get help so you won't repeat the mistakes that got you there in the first place.

Even before your court date you can participate in programs that will put you in a good light in front of the judge. I've recommended that in-custody clients take the jail's GED courses, parenting classes, substance abuse classes, and skill-building classes like creative conflict resolution. When we went to court, the judge was impressed. Using what the jail has to offer helped them look better in front of the judge. Going to Alcoholics Anonymous meetings can help persuade the judge to let someone -- or leave someone -- out on their own recognizance rather than leaving them in jail.

Continue reading "Your Sixth DUI -- when you need your lawyer to be more than a lawyer" »