David M. Boertje

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When there are questions about the veracity of conclusions in a court case, it is reassuring to have forensic evidence to support inferences and assumptions, isn’t it? After all, there is no arguing with science! Actually, it may surprise you to know that researchers have found plenty to question about scientific conclusions in general and forensic evidence in particular. 

The Question of Context

One huge issue as it relates to forensic evidence is the context of that evidence. We all know that context can influence the interpretation of any given fact. For instance, if a red-headed woman was seen breaking a window, and you see a red-headed woman coming around the corner from the building where that window was broken, the context of the situation could lead you to conclude that the woman you now see was responsible for the break. The same is true for forensic scientists. If, for example, a crime scene investigator collects evidence and then examines it in the lab, it is logical that impressions of that crime scene will influence assumptions going forward. If another detective shares information about a suspect, it might lead the forensic scientist toward bias in the evaluation, interpretation, analysis, and conclusion of any evidence studied. 

Cascading Bias

Exposure to information and materials related to a particular crime can demonstrably impact a scientist’s interpretation and thoughts regarding forensics. One mistaken impression can then cascade throughout other phases of the investigation. The failure to isolate information that individuals consider can lead to what is referred to as a bias snowball. That snowball can send biased reasoning throughout multiple phases and people involved in a case, resulting in the inadvertent effort to prove a particular theory.

 rather than simply allowing the facts to lead to a conclusion. For instance, consider the impact of determining the relevance of a particular piece of evidence. It may be quite difficult to differentiate between items of significance and those of no import at all. Let’s say, for example, that a cigarette butt is found in the street near a dead body. Is it a piece of trash or a clue? Would knowing that the key suspect is not a smoker influence an examiner’s evaluation of the evidence? It is not far-fetched to believe that it could. When an examiner is responsible for both studying and integrating various lines of evidence, the chances for error in terms of cascading bias increase.

A Serious Problem 

The issue of bias has been described by researchers as both pernicious and generally unrecognized by those in the criminal justice field. Truly, this puts into question the reliability of so-called expert witnesses who testify to forensic conclusions and makes one wonder why it is that these kinds of errors related to bias are not being aggressively addressed by the criminal justice community. Continue reading

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With two million Americans in jail or prison and another three million under some kind of correctional control, It makes sense that criminal justice system reforms are constantly being studied and experimented with. Incarcerating more people than any other country does not seem to be working. What will it take to make a real difference? 

Changes are Needed

Revision of policies and practices is sorely needed, as it seems all of the get tough on crime bombast has only led to the current problem of over-incarceration in this country. What changes are we seeing in various states across America? 

Addressing Racial Disparity

Racial disparity in the criminal justice system is a harsh reality.  Consider Black people alone: though they comprise just over 13% of the population, they are involved in over 20% of fatal shootings by police, nearly half of the wrongful convictions that are later exonerated, and they make up over one-third of all executions as a result of the death penalty. In California, they are addressing the problem with the Racial Justice Act for All measure, which gives individuals who have received judgments or convictions earlier than 2021 to seek relief if there is proof of racial bias in their case.

Drug Policy Reforms 

In Kentucky, people who have been charged with low-level drug activity and are eligible for a new program are having their cases put on hold temporarily while they focus on treatment programs that address substance use disorders or mental health disorders. From there, they are assisted through outpatient services, including housing assistance, vocational training and placement, education, and behavioral or cognitive treatments.

Many states have decriminalized the use of marijuana, which will have a huge impact on the number of incarcerated individuals. States include Maryland, Arkansas, South Dakota, Missouri, and North Dakota; Colorado decriminalized some psychedelics, only the second state to take such action after Oregon did so in 2020.

Youth Protections

The age for detention in Maryland inched up to 13 in all but exceptional cases, and incarceration for youth offenders has been eliminated as a penalty for the majority of misdemeanors—excluding gun violations– and for straightforward probation violations.  Maryland also opened more passageways so a greater portion of the youth who are convicted of nonviolent offenses can participate in diversion programs. In Indiana, children under age 12 can no longer be detained; instead, they can take advantage of other interventions directed toward younger offenders. Life sentences for young offenders have been eliminated in Tennessee, and Wyoming is focusing on collecting and standardizing all information related to the juvenile justice program in order to better track offenders and their success or lack thereof.

California’s Reform Measures

California is taking the lead in some important reforms, as well.  Senate Bill 731 is one critical piece of legislation that was recently signed into law. It permanently seals virtually all convictions if an individual completes their sentence and stays out of trouble for an additional four years. Other important changes to California law include:

  • The end of sentences with mandatory minimums associated with non-violent drug crimes;
  • Limits to gang enhancement laws;
  • The availability of good behavior credits for individuals in mental health treatment facilities;
  • Retroactive repeal of sentence enhancements in certain situations hat had previously been excluded.

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Have you been charged with leaving the scene of an accident? Perhaps you were confused, afraid, or in shock. Maybe it was not even you behind the wheel. In any case, it is crucial that you have a fierce, knowledgeable criminal defense attorney working on your behalf the minute you are charged. 

California Statistics

With 17% of all hit-and-run fatalities occurring here in the Golden State, the rate of hit-and-run incidents has been on the rise. California tops the nation for the worst rate of fatalities due to such accidents—well over 3,000 annually. The most likely to be killed? People aged 25 to 34.

Why Drivers Leave the Scene

There are plenty of reasons drivers decide to leave the scene of a traffic accident—none of which provide much consolation to the victims. Without question, such drivers come from every walk of life. While some may imagine every hit-and-run driver to be an alcoholic or a career criminal, the truth is that students, the elderly, the working class, the wealthy, and everyone else are all represented in hit-and-run statistics. So, why do even the most respectable members of our communities leave the scene after an accident? In general, drivers are fearful of consequences.

  • In some cases, they may be driving a vehicle without the owner’s permission;
  • If the collision was with a parked vehicle, the driver may rationalize it is no big deal.
  • If they are driving a rental vehicle, they may presume they can get away with it unscathed;
  • They could be afraid of police contact due to an outstanding warrant, being in the country illegally, or being under the influence of drugs or alcohol;
  • The driver may be worried about employment repercussions if it involves a company vehicle;
  • The driver may be in shock;
  • Perhaps the car lacks mandatory insurance, and the driver is concerned about financial repercussions;
  • Some drivers may not be aware that they hit something;
  • They may have been drunk or high at the time of the incident.

Legal Penalties

Hit-and-run drivers may be struggling with remorse, but the legal penalties headed their way could make their lives much, much worse.

Every incident is different, but the penalties increase depending on the driver’s history and whether there were injuries or fatalities. For a misdemeanor hit-and-run—say, hitting a parked car — a driver could be slapped with six months behind bars and $10,000 in fines, along with restitution for damages. If there are injuries related to the hit-and-run, you could face felony charges, and the incarceration time could be bumped up to as long as three years in prison. With an enhancement to vehicular manslaughter—the driver has left the scene fully knowledgeable that there was likely an injured individual involved — another five years could be added to the sentence. Continue reading

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For anyone who thought that police use of force would wane after the riotous year of BLM protests in the recent past, the discouraging news is that these incidents are on the rise. Across the country in general, and in California specifically, documented cases of police use of force are on the rise. According to the Centers for Disease Control and Prevention (CDC), emergency room visits following police interactions have exceeded 400,000 throughout the United States in the past. Lethal force is particularly worrisome—with over 1,000 fatal police shootings in California in 2020 alone. Another unsurprising fact: these kinds of things happen most frequently in Black and brown communities, according to research.   

California Law on Lethal Force 

According to recent California law, lethal force is justifiable only in cases where human life is being protected. This is in contrast to the previous law allowing lethal force whenever an officer deemed it reasonable. Even so, case after case of police shootings continue to destroy families and neighborhoods. However, in some cases, officers are not getting off scot-free. A deputy in San Diego recently faced charges of second-degree murder, while an officer from San Leandro was looking at manslaughter charges, both a result of excessive use of force. 

So, it seems our strict use-of-force laws are making a difference—though not eliminating the problem. Perhaps that is because officer training is very inconsistent across California. While some departments require that officers take a two-hour course, others have condensed the training down to 14 minutes in front of a video and being handed a memo. And many officers have received no training at all on the new law yet—and San Diego officers are sorely behind in the training.

A San Diego Story

One San Diego story is a tragic one. A 36-year-old who loved the environment and animals suffered from a mental illness that made him easily frustrated. To escape the pressure of difficult situations, he started running away as a toddler, and the pattern of behavior continued throughout his school years and into adulthood. In multiple situations, he ran from the police. When confronted by a park ranger for having his dog off-leash one afternoon, he fled. Ultimately the ranger and a backup officer found him, and he was tased and put under arrest due to his resistance and because he held a golf club that appeared to be held as a weapon. Cuffed and in the back of the squad car, the man managed to free one of his hands, open the door, and run.  Though several officers on the scene believed he was not a threat, one officer shot the fugitive four times, resulting in his death later in the hospital.

When it Comes to Race…

Who is most likely to suffer police use of force? Black individuals are on the receiving end of such tactics in four of ten cases, despite the fact they make up only about one-tenth of the population. Conversely, whites experience police use of force in less than one-third of incidents, despite making up over 40% of the population.  Continue reading

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After experiencing an arrest, you are probably experiencing a jumble of emotions, including trepidation, disbelief, embarrassment, and fury. How will an arrest impact your immediate and long-term future? Regardless of the circumstances, when you have an experienced and tenacious criminal defense attorney by your side, the outcomes will likely be better for you.  

Understanding Your Miranda Rights

If the arresting officers have done their job right, you have been advised of your Miranda rights.  Listen carefully and understand that the Miranda warning is no joke! When you were told that you have the right to remain silent and that whatever you say could be used against you in court, they are not kidding. So stay calm, and respectfully tell them that you will not speak with them until your attorney is present. Do not allow officers to bait you into responding to their queries or commentaries; do not defend yourself or try to explain your side of things. Remain silent.

If You Were Not Mirandized

There are only certain situations in which an officer may not Mirandize you:

  • The officer was not acting in accordance with the law.
  • When the questioning by police occurs before an arrest or custody.
  • When public safety is in jeopardy, such as when an assailant is at large.
  •  In some DUI or other cases when there is no intention of interrogating you following arrest.
  • When the arrest involves a juvenile, who cannot legally be questioned without their parents or guardians present.
  • When questioning is being done by someone other than police, like perhaps a security guard at a store.
  • When police are simply getting your identifying information.

When Your Attorney Arrives

Once your attorney is present, they will advise you about how much you should say to the police. Your attorney will guide you and will outline your options and potential defense strategies. Depending on the circumstances, you may discuss the following:

  • Convincing police to dismiss all charges: In some cases, the police will quickly learn that they have the wrong person in custody.
  • Demanding a reduction in charges: Law enforcement may be convinced to offer lesser charges that are more appropriate in your case.
  • Striking a plea deal: You may be willing to trade information/testimony for lesser charges.
  • The potential for inclusion in a diversion program: You may be eligible for drug court, mental health court, or military diversion rather than incarceration.
  • Fighting all charges: You may wish to plead not guilty and fight all charges.
  • A guilty plea.

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You survived a miserable divorce and thought you had made it through the worst of it—but you could not have been more wrong. After a nasty custody battle that gave you limited visitation, now your ex is accusing you of the worst thing imaginable: hurting your own children. Your life has been turned upside down, and you know things can get much, much worse. Now, more than ever, you need a tough, no-nonsense criminal defense attorney fighting for your rights. 

Criminal Penalties

In addition to the obvious damage to your relationship with your children, you are facing some serious penalties if convicted of these crimes:

  • Child Neglect: If you are found guilty of neglecting your children while they are in your care—failing to provide proper food, shelter, supervision, and so forth, you could face a year in the county jail, on top of $2,000 in fines.
  • Child Abuse:  Intentionally inflicting physical harm on children is a serious matter, and a guilty verdict could put you in prison for six years, in addition to fines as high as $6,000.
  • Child Molestation:  When children suffer sexual molestation at the hands of an abuser, that abuser could go to prison for eight years for each act of molestation.
  • Continued Sexual Abuse:  When convicted of three or more acts of sexual abuse of a child, an abuser could go to prison for 16 years.

Defending the Case

Defending child abuse cases can be tricky because emotional testimony by a hysterical ex is convincing, especially if there is physical evidence to indicate the possibility of abuse.  Sometimes children are manipulated by a vengeful parent or are eager to please that parent, ultimately sharing fabricated stories that they have no idea will destroy your life. The truth is society is eager to protect children and will frequently find a defendant guilty on the slimmest of evidence. That is why it is critical that you take immediate steps to protect yourself:

  • Do not speak to anyone, including the family, friends, and the police, about the charges without having your attorney present.
  • Do not have anything on social media that might present you as anything short of a model citizen and loving parent.
  • Share details of all child visits with your attorney, as well as the history of your relationship with your ex.
  • Help your attorney to gather a list of personal references—preferably those who have seen you interacting with your children.
  • Cooperate fully with Child Protective Services and their investigation.
  • Do not contact your ex or your children in an effort to understand the charges or convince them to drop them.

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Most transgender people can tell you that they have suffered discrimination and harassment for as long as they can remember. This, in itself, is a problem. But perhaps even more concerning is when cruelty and mistreatment come from the very authority figures who are entrusted to protect and defend them.   

Fears of Police

The statistics are disturbing: Almost six in 10 transgender individuals are reluctant to seek out law enforcement assistance when they need it. That is because members of the transgender community – particularly trans people of color – feel that they are often profiled and harassed by police.

Incarceration

Unfortunately, the persecution does not end after transgender people are arrested and locked up.  The rates of exploitation and violence are dreadful—with physical and sexual attacks by fellow prisoners occurring at 10 times the rate of other inmates. Even less palatable is the fact that they are assaulted by staff at five times the rate of other inmates. On top of these attacks, transgender inmates report long periods in solitary confinement and the denial of essential medical attention. In total, more than one-third of transgender individuals report having been raped while in prison—and that number is thought to be on the lower side of reality.

Housing Issues

One of the biggest challenges for transgender people upon incarceration is the fact that they are nearly always housed based on their gender assignment at birth, not their current identity.  Transgender women are thus locked up with men, which puts them at substantial risk of rape and other violent acts. Even when they request to be relocated to women’s facilities, these women are usually denied transfers. This is despite laws requiring states to evaluate placements on a case-by-case basis and to consider where inmates would feel the safest. In fact, only about a dozen of the nearly 5,000 transgender people currently in state prisons are housed based on their lived gender identity.

Federal Laws

Along with asking trans people where they would feel safest, federal law requires an interview twice yearly thereafter  These inmates’ concerns and their experiences with violence are supposed to be weighed as officials make housing determinations. The Prison Rape Elimination Act (PREA) is intended to protect all prisoners and specifically transgender people, who are at the highest risk of violence. States who refuse to comply are supposedly at risk of losing significant federal funding—but it does not seem to play out as intended. Some believe that is because specific benchmarks are not laid out, giving states the leeway to do as they please. Continue reading

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If you watch any crime drama on television, you know the scoop: the case could be up in the air with no way to nab the culprit—until miraculously, a fingerprint or a wayward strand of hair is discovered by a fervent detective. Instantaneously, it seems, the evidence is analyzed in the lab, proving without question who is guilty of the crime. The perpetrator goes to jail, and justice is served. But how accurate is this depiction of the criminal justice system at work? If you are being charged with criminal activity and there is forensic evidence that puts you at the crime scene, there are several things you should know. 

Justice is Slow

For starters, unlike on TV, it takes a lot of time — weeks, months, and sometimes years — after a crime is reported until it goes to trial. Moreover, forensic evidence is not quite as cut and dried as it appears on the screen.

  • Hair analysis: The forensic analysis of hair has been under scrutiny of late—in fact, it is sometimes referred to as pseudoscience. That is because so many of the characteristics of hair are extremely common, so the likelihood of an accurate match is slim to none.  According to The Guardian, one expert in the field stated that microscopic examinations are essentially without value except as a method to exclude a suspect.
  • Fingerprints: Examiners — the majority of whom have never been required to pass any sort of accreditation or testing standards — are taught to report their findings with certainty. Unbelievably, however, training standards for fingerprint analysts vary from state to state, and many of the conclusions reached by these fingerprint “experts” should be viewed as less than airtight, to say the least. The problems with fingerprint identifications are becoming more and more well-known, leading many courts across the country to exclude fingerprint evidence altogether! That is because the accuracy of fingerprint identifications has not ever really been tested.  

Challenging “Expert” Testimony

When your defense team encounters what they consider dubious conclusions made by a supposed expert, Daubert Motions can challenge the testimony based on any of three key areas:

  • The qualifications of the “specialist”;
  • The methodology used to arrive at specific conclusions;
  • The accuracy of the science itself.

These are precisely the types of challenges that give a judge reason to doubt the legitimacy of “expert” testimony. Such challenges could benefit defendants by prompting a judge to instruct a jury to give less weight to such testimony, to strike the testimony related to that evidence altogether, or even to dismiss the case outright.   Continue reading

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When facing criminal charges, the possibility that the case will be settled before you ever make it to court is very high. The National Association of Criminal Defense Lawyers (NACDL) reports that fewer than 3% of criminal cases ever make it to trial in this country. That is true for both state and federal charges. What happens instead? In the majority of cases, a plea agreement is reached, allowing defendants to accept lesser charges in exchange for a reduced sentence and/or other concessions. Even so, every criminal defendant is guaranteed the right to a trial by a jury of their peers, and that option is available regardless of the charges. In some situations, defendants waive that right in favor of a bench trial where a judge determines the outcomes. Which option is best?

Understanding a Plea Deal

There is no single correct answer to that question. Every case is different, and a defendant must carefully weigh the opportunities and possible consequences of each with the counsel of a trusted defense attorney. Some of the issues that should be considered if a plea bargain is offered include:

  • When a defendant agrees to a guilty plea, it will likely result in a more bearable sentence than in the worst-case scenario of a guilty verdict, so if the prosecution has a strong case, it may be worth considering;
  • Trials can be extremely expensive, when you add up attorneys fees and court costs;
  • If you plead guilty, it will put a stain on your record, which could have long-term consequences in terms of employment, housing, relationships, and more;
  • The potential of a not-guilty verdict and escaping penalties altogether may be promising.

Bench Trial or Jury Trial?

In the event you do decide to move forward with a trial, are your chances better with a jury or a bench trial? While it is definitely impossible to know for sure, there are some factors worth taking note of:

  • If the case is high-profile, it may be difficult to find impartial individuals to serve on the jury.
  • Some judges have a past record that gives a clue about how they rule in particular types of cases. Are you looking at someone who has a record of lenience or someone who throws the book at defendants in similar cases?
  • If your case relies strongly on highly technical issues, they may be beyond a jury’s understanding, whereas a judge understands the intricacies of the law. It is possible that an objective judge who is accustomed to applying the facts to the law will give you a better shot at justice.
  • If the facts of the case are inflammatory, a jury might be influenced by juicy, though immaterial, factors that a judge would be able to ignore.
  • On the other hand, are there mitigating facts that might make you seem more sympathetic to a jury but that a judge would consider inconsequential based on other factors?

Continue reading

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Traditionally the holidays are a time when retailers experience an escalation in retail theft. Whether it is a case of beer or a pearl necklace, the law sees it all the same. Shoplifting costs retailers, insurance companies, and consumers every single day. And if you are caught in California, you will be the one to pay the price. That is why finding an experienced local criminal defense attorney would be a good move right about now. 

Prevention 

Retailers take the theft of their merchandise seriously and are doing whatever they can to put a dent in retail theft. In addition to providing employees with better training so they can spot shoplifters, many retailers are hiring undercover personnel who pretend to be shopping while keeping an eye out for would-be thieves. Technology is helping, too. As everyone knows, cameras are everywhere these days, tracking the movements of customers and of thieves. Pricier items may be under lock and key and often contain tags that set off alarms in the event of a theft.

If You Have Been Stopped for Shoplifting

Let’s say that you have been stopped by a store employee who thinks you have been trying to lift something without paying. What should you do? For starters, let’s talk about what you should not do:

  • Never try to talk your way out of it.
  • Do not attempt to explain, argue, or physically resist a store employee, security staffer, or police officer.
  • Do not give your personal information to store employees.
  • Never sign anything.

Instead, here is what you should do:

  • If a bonafide police officer questions you, tell them your name.
  • Ask to speak to your attorney straight away.
  • Say nothing to managers, loss prevention individuals, or anyone else.

After an Arrest

The number one rule following an arrest is this: Keep your mouth shut. You should have been advised of your Miranda rights. Say nothing beyond expressing your desire to speak to your attorney.

California Penalties for Shoplifting

Shoplifting, which is defined as going into a business that is open intending to steal merchandise worth $950 or less, is taken seriously in California. Offenders could wind up in jail for as long as six months, on top of having to pay fines up to $1,000 and pay restitution to the store owner.  And that is for simply attempting to steal something—whether or not you are successful. If the theft involves merchandise valued at more than $950, charges of grand theft can result, which could mean up to three years behind bars and $10,000 in fines. Naturally, repeat offenders could see the penalties increase. Continue reading

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SAN DIEGO OFFICE
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Phone: (619) 229-1870Fax: (760) 230-5888Toll Free: (888) 476-0901Email: dboertje@boertjelaw.com
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