David M. Boertje

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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?

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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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Let’s say you are home glued to the television when you are startled by a knock on the door.  You are not expecting company and are stunned when you look through the peephole and see a couple of police officers outside your door. What in the world are they doing there? You are about to find out. 

Knock and Talk

So, you open the door, and the very friendly officers ask if they can come in to ask you a few questions. This is a rudimentary investigative technique police legally use to get their foot in the door with you—literally. Since you have not done anything wrong, you reason that there is no reason to deny them a little chat. The truth, though, is that although you can talk if you really want to, there are a slew of reasons that you should never, ever allow police to enter or search your home or property without a warrant. They could use that chat time to informally eye your place and try to find something they can use against you later. It does not matter how innocent you are. Don’t do it.

Fourth Amendment Rights

Assuming they do not have a warrant, the police cannot conduct a search without your consent. Do not consent: Even if they say it will be better for you if you cooperate, even if they indicate they will just go get a warrant anyway, even if they imply that you could be arrested if you do not cooperate. The Fourth Amendment of the Constitution is clear: You are protected from unreasonable searches. That means that no warrant and no consent equals no search.

It is Just a  Friendly Chat, Right?

Now you understand that under no circumstances will you consent to a search, but what is wrong with answering a few questions? Absolutely nothing. But do not invite them into the house.  Instead, step out onto the porch to talk. Why?  Because there is every possibility that police are there looking for evidence. If they are eyeballing your home as you chat, who knows what will catch their eye? They may fixate on something that gives them probable cause to conduct a full-fledged search. In truth, if they showed up without a warrant, they likely do not have the evidence necessary to really get a warrant. Requesting to take a look around is part of their routine and their right. Politely declining is your right. Not only will it prevent a search in the immediate situation—but it will also give your lawyer ammunition to use in your defense if you wind up in a courtroom based on the encounter.

But There is Nothing Illegal in Your Home!

You may be thinking, there is nothing that could possibly pique the interest of an officer anywhere in your home! Why all the fuss about refusing entry to officers? Let ‘em in; have a looksie! There is nothing in your teenager’s room; nothing in your bathroom trash can; nothing in your spouse’s underwear drawer! You’ve never had a guest inadvertently leave anything the cops might find interesting. Well, come to think of it, you really can’t be 100% certain that nothing would be noteworthy to a law enforcement officer. The point is you have nothing to gain by letting the police look at your place. Nothing. Conversely, who knows what could go wrong and what you might have to lose? Continue reading

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For many, the holidays are a time of togetherness and celebration. Regrettably, not everyone has the opportunity to enjoy those wonderful family dinners and city lights. Sometimes allegations of criminal activity get in the way of the festivities. 

Arrests During the Holidays

As most people know, arrests do not drop off simply because the holidays are ahead. Instead of getting locked up and suffering other penalties, you can enjoy the joy of the season by staying out of trouble with the law. Some of the common reasons people get arrested during the holidays include the following:

  • Drinking and Driving: We all know there are ample prospects for partying between Thanksgiving and New Year’s Eve. But getting a DUI is no way to enhance your holiday joy! If you are stopped with a blood alcohol limit of .08 or higher, you are pretty much assured of a night in jail, with costly additional penalties as a bonus. Assuming you do not injure or kill anyone, it could be a relatively short stay, but additional consequences will last long beyond the night of the arrest. So use your head: don’t drink and drive!
  • Family Violence: Financial pressure, demands from extended family, and infuriating crowds everywhere you go — it can all get to be more than a little challenging. The stress of it all can lead to clashes among family members.  
  • Airport Contraband: For those who travel during the holidays, be sure you do not bring anything that will get you in trouble with the TSA, and make sure you know the laws in any state you visit. TSA does not permit marijuana at all—so do not bring it on the plane. And guns are never allowed in carry-on luggage. Be careful what you pack.
  • Porch Pirating: With the increased online shopping during the holidays, porch pirates are ever tempted to steal merchandise, even during broad daylight. But with all the doorbell cameras out there, getting caught is easier than ever. Plus, law enforcement place dummy packages to bait thieves. So, whatever you do, stay off of strangers’ porches.
  • Shoplifting: For those who wish to boost their holiday haul without paying for the merchandise, there is a real risk of being seen by the many cameras around these days, not to mention undercover security personnel and others. Retail theft is a major problem during the holidays, and in California, it can result in significant jail time.

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Free speech in America is central to our democracy. But do Americans really understand this right and the very real limitations on speech? It is worth noting in these challenging times that when people choose to ignore the restrictions on free speech it could lead to legal woes. 

Recent High-Profile Example

Alex Jones, who spent about a decade gushing falsehoods about the shooting at Sandy Hook Elementary School on his radio show, wound up being sued for the damage he caused to the survivors of the shooting. A jury sided with the plaintiffs, which resulted in Jones being ordered to pay hundreds of millions of dollars to the families of victims in a combination of compensatory and punitive damages. Jones argued that he was being prosecuted –and persecuted–simply for using his First Amendment right to free speech. The jury did not buy it.  It is true that the First Amendment protects the right to express dissenting opinions, even when those opinions are flat-out wrong based on the facts, they are offensive, or they are cruel. However, it does not protect against defamatory speech. Sandy Hook families were able to launch civil charges against Jones for defamation, and the juries agreed that his words were not protected.

Some Speech is Not Protected by the First Amendment

In fact, there are several types of free speech that are not protected by the Constitution. These include:

  • Defamation and label;
  • Vandalism;
  • Criminal threats;
  • Child pornography;
  • Unlawful assembly;
  • Refusing to disperse if police direct one to;
  • Trespassing;
  • Obstruction of a law enforcement officer.

Hate Speech

Hate speech has been in the news a lot these days. There is actually no legal definition for hate speech, but most people recognize that it relates to any speech that is demeaning or insulting to a particular group that is based on sexual orientation, religion, race, disability, or gender. Speech directed toward specific subgroups like these is not protected by the first amendment in this country

Symbols

The Supreme Court has ruled that highly controversial actions such as burning an American flag are protected by the First Amendment, despite the fact that many in this country find such behavior to be detestable. On the other hand, it is unlawful to use a symbol as a threat to others. What about carrying a confederate flag or wearing a swastika if others feel threatened by those items? This is essentially a gray area, and each case is determined on its own merits and the level of threat involved. Continue reading

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A reportedly upstanding member of the community swears they saw you commit a crime. How can you possibly defend yourself against an eyewitness account? Of course, any criminal charge is serious business; eyewitness testimony against you is never a good thing. The fact is, however, that eyewitness testimony may not be as iron-clad as you would imagine. A good defense attorney knows that there is a lot of research repudiating the trustworthiness of such testimony. 

Can Eyewitness Testimony be Trusted?

Multiple studies over recent decades have revealed that the accuracy of eyewitness testimony in criminal trials leaves a lot to be desired. Regardless of how confident a given witness is, mistakes occur; it is just the nature of memory in human beings. Moreover, visual perceptions, when combined with memory, combine to make this type of testimony one of the very least reliable!  The truth is that a significant number of wrongful convictions—proven to be erroneous through DNA and other evidence after the fact—were based primarily on eyewitness testimony. In one study, researchers discovered that over 70% of overturned convictions were originally based on eyewitness testimony, and in over 30% of those cases, there were multiple eyewitnesses whose testimony was demonstrably wrong.

Problems With  Memory

Some may believe that memory is similar to a video recording, but this analogy could not be further from the truth. Remembering, according to renowned researchers, is more analogous to putting the pieces of a puzzle together. As a witness is questioned by law enforcement or attorneys, pieces of actual memories may be inadvertently conflated to match the questioner’s words and information, leading to inaccurate recollections. Myriad other factors can impact memory, including:

  • Minimal time frames in which to witness a crime;
  • A witness’s anxiety during the criminal event or when endeavoring to identify someone;
  • Disguises used by criminals;
  • Weapons wielded at the scene that distracted witnesses;
  • A lack of distinctive visual characteristics in the perpetrator;
  • Inadequate viewing time during the identification process.

The Loftus Study

One study examined memory errors and the conviction with which subjects held to their flawed recollections. For this research. subjects were told three true accounts and one false one about events that had occurred earlier in their lives. Relatives of the subjects provided particulars for the false story in order to make it more credible. About one-third of subjects believed the false event had actually transpired, despite it being wholly fictitious. These individuals honestly believed that they remembered an event that had never actually occurred. Continue reading

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People often wonder why anyone would choose to defend individuals who are accused of the most appalling of crimes. Sure, it is reasonable that a strong defense ought to be mounted for minor incidents like smoking pot, illegal protesting, or maybe even something like shoplifting.  But what about kidnapping, rape, or murder? Why should people accused of these kinds of monstrous crimes be protected with zealous efforts by criminal defense attorneys? 

The Constitution

To begin with, the United States Constitution entitles everyone to an attorney and a defense.  Period. These rights are not rescinded when the indictments make the public nauseous. In America, thank goodness, a prosecutor must prove a case beyond any reasonable doubt. This is a good thing on many fronts. Specifically, allegations and charges are oftentimes flat-out wrong. The presumption of innocence, along with other important principles, is cherished by every defendant—regardless of the nastiness of the crime in question.

Benefits for Everyone

And here is another point worth noting: The connection between government and governed is tenuous in terms of balance. When a strong defense is mounted, it pushes the prosecution toward a more accurate and unbiased push for justice. Despite the sentiments that compel the quest for guilt and vengeance, our justice system requires a rational and impartial look at the evidence of any given case. It demands that officials behave in transparent and conscientious ways and that they follow conventional techniques and practices. When just one step in the quest for justice is botched or manhandled, the promise of a judicial system that works for the people is lost—not just for a particular defendant—but for all of us.

It Beats Vigilantism

To be sure, atrocious crimes feed the furies of the public. If not for a principled pursuit of justice, communities might alternatively feel the need to mete out justice without the benefit of trial, judge, and jury. How much better, then, to provide the elements needed to seek the truth and deliver justice with temperance and dispassionate calm?

A System in Need of Repairs

Certainly, no one argues that the justice system in the United States is perfect—far from it.  Suggested improvements have been tossed around for years, including examining the alternative justice courts, putting an end to cash bail systems, and providing more treatment programs to address addiction and mental health disorders. Undeniably, services to prepare convicts for an honest life outside of prison are lacking, and do not reduce recidivism rates to the degree we would like to see. But with all the discussions of potential improvements and adjustments to the system, there is one thing you will never hear in the United States: a call to eliminate defense attorneys, even for the most monstrous of crimes. That is because in America we rely on defense attorneys to balance a system that could otherwise tilt misguidedly toward guilty verdicts, ignoring innocence time and again. As the system stands, that happens enough already. Continue reading

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If you are on trial for a serious crime, you can find some solace in the fact that courts have rules at both state and federal levels related to the relevancy of any and all evidence presented at trial. That means photos, witnesses, physical evidence, and more must be deemed reliable and pertinent before it gets in front of a jury. Does that mean that only prescient information gets to the jury? You might think so, but that is not always the case. 

Case in Point

One recent case exemplifies a problem that is becoming increasingly common. It surrounds a 17-year-old boy who found himself sentenced to life in prison based on circumstantial evidence. There were no witnesses to the crime, and there was no physical evidence. So, what convinced the jury that he was guilty? The lyrics of a rap song he had written were central to the conviction, despite the fact that they were difficult to understand and certainly open to multiple interpretations. 

Bias?

“I shot the sheriff…” crooned Bob Marley.  No prison for him. Jimi Hendrix sang that he “caught her messin’ round town, yes I did, I shot her…” and was never even interviewed by police about the lyrics or murder. And when Bob Dylan sang about seven dead people in the Ballad of Hollis Brown, no one fretted he might be a murderer in our midst. The fact is, there are hundreds of thousands of popular songs from every genre that talk about acts of violence. Those lyrics are viewed as art, the songs a thread woven through American culture. Why, then, has rap music gotten such a bad rap?  It has got to be nothing short of bias.

Legislation Necessary

The music industry has taken note of the bias against rap music, particularly in the aftermath of a RICO (Racketeer Influenced and Corrupt Organizations) indictment against famous rapper Young Thug in Georgia. The Grammy-award winner’s lyrics have been used against him in court, as prosecutors claim them to be overt acts. California is one state that is listening to the protest against using rap lyrics in criminal trials.

California Puts a Stop to Prejudicial Courtroom Antics

Governor Newsom says that all artists deserve to be able to create without being afraid their lyrics will be used against them in court—and he signed a bill into law saying as much. No longer can prosecutors use lyrics without the court thoroughly examining the research on that particular form of expression and considering racial bias. California is blazing the trail for more fair, impartial outcomes in a court of law. Continue reading

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Across the United States, prisons and jails are brimming with people who suffer from mental health issues. It is true: more than half of the prison population and more than two-thirds of those in jails suffer from mental health problems. If you or a loved one has such issues and is arrested, you know that jail is simply not the best place to wind up. Are there other options in California? 

The Cycle Continues

According to the Bureau of Justice Statistics (BJS) people behind bars who suffer from mental health issues often have previous convictions and tend to serve longer sentences than the average offender. Any health issues — and mental health conditions in particular — tend to get worse without treatment, which can result in further problems with the criminal justice system. It is a vicious cycle that needs solutions. 

Crisis Intervention Teams

Since police are usually the first on the scene of an altercation involving someone who suffers from mental health issues, states across the country are developing Crisis Intervention Teams (CIT’s) to assist with evaluation and de-escalation in crisis situations. The result is fewer arrests, access to diversion programs and services, and fewer injuries to offenders, police and others.  Police and CIT members work together to impact communities by reducing severe outcomes involving the mentally ill. With teams of mental health workers, better trained police know how to interview, negotiate, and identify the effects of drugs, which means criminally involved or suicidal individuals get lifesaving help instead of simply being arrested.

Diversion Opportunities

In addition to pre-arrest interventions, many states direct arrestees to diversion courts instead of incarceration, giving people the chance to take responsibility for their actions, get the help they need, and have their records cleared in time. Studies show this can result in shorter sentences and fewer re-arrests.

Hope in California

The future looks bright for mental health intervention in California. Crisis Intervention Teams are embedded in police departments across the state, providing training for officers and redirecting offenders to support programs that can help instead of simply punish. The state has budgeted tens of millions of dollars to address the increasing challenges associated with the homeless population, substance use disorders, and mental illness, all of which may interact and lead to criminal activities. The state is committed to improving outreach and mental health diversion programs, while minimizing involvement with the criminal justice system. Another thing California is doing to improve outcomes for those with mental health issues is suspending Medicaid coverage during incarceration, rather than canceling it altogether. This can be important for those looking for treatment options and can reduce the chances of re-arrest. Continue reading

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About one out of every three fatal police shootings involve individuals who were trying to evade an arrest. These numbers tell the story: it is never a good idea to try to flee from the police.  Surely, an arrest would be a better outcome than a shot in the back. 

When is the Use of Deadly Force Justified?

Without question, deadly force  is sometimes necessary. Certainly, the lives of officers have  value, and when those lives are in peril because there is an immediate threat of serious bodily harm to that officer or to another person, deadly force is understandable. Even in situations when a suspect is fleeing, if that suspect is believed to have been involved in dangerous felony activity that caused serious injuries, deadly force is justified under the law. But we continue to hear cases of non-threatening people being killed by police when they are running away. How is that justifiable? 

State of Mind

The Supreme Court has given more leeway to officers who are involved in fatal shootings over the years, saying that an officer’s state of mind and level of fear during a particular incident must be weighed in determining whether or not the use of force was justified. That means if an officer believes a suspect was reaching for a weapon, it can justify the use of lethal force. Even when a weapon is not discovered after a police killing, the event may be ruled as justified. That is right—an unarmed suspect may be killed even though there was absolutely no real threat.

Shocking Consequences

633 individuals were killed by law enforcement officers in the first half of 2022; 202 of them were in the act of fleeing when they met their deaths. Prior to 2022, one person was killed in police encounters every single day.  Some of those include:

  • A pregnant woman who was shot in the passenger seat of a car that was fleeing police;
  • An unarmed man who was fleeing police in Ohio when he was shot down;
  • A man who ran from an unmarked police vehicle and was fired at by a California officer;
  • A man who was being stopped for riding a bicycle at night without a light and was shot in the back of his head after a struggle;
  • A man who was shot dead while sleeping in his car.

Who are the Victims?

The startling fact is that Black people who are on foot make up as many as half of all fatalities involving victims who are killed while on the run, even though Black people comprise just 13% of the population in this country.  Continue reading

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