Criminal Defense

May 27, 2015

Senate Bill 603 Introduced to Prevent Defendants from Cross-Examining their Victims

The Senate Committee on Public Safety recently held a hearing at the end of April on Sen. Ben Hueso (D- San Diego) and the San Diego County District Attorney’s Office’s proposed bill. Senate Bill 603, which is currently making its rounds through the California legislative process in Sacramento, would require a court to conduct a hearing in cases in which the defendant is acting as his own attorney to determine whether someone else, most likely a standby lawyer, should be appointed to question the victims. Under SB 603, a judge would have to determine whether the victim would be traumatized further by being cross examined by the defendant. That kind of finding would be allowed only in certain kinds of cases, such as rape and sexual assault, as well as in felony charges of stalking, domestic violence, elder abuse or child abuse.

The sponsored bill was prompted by a San Diego woman named Jessica. Jessica says she was traumatized for the second time when the man who sexually assaulted her questioned her in court. The attack happened near the Old Town bus station back in March 2013. Jessica said a man dragged her behind a cafe and assaulted her. He chose to represent himself (pro se) during his trial.

May 25, 2015

Evading a Police Officer: The Double Standard Created by the Supreme Court

by David M. Boertje

It has been a busy year for criminal law development. With the seemingly unending current events surrounding police and citizen relations, the topic of when it is legal to run from police has resurfaced. It is already established by now that Freddie Gray was not doing anything wrong when he ran from police that tragic April 12. Police would later find out he had a switchblade in his pocket but that was not the reason why he ran. According to the police report, the patrol officer made eye contact with Gray, which prompted him to run. It was later discovered that in communities such as Gray’s, the mere presence of police make people nervous; that was the reason Gray ran. He was nervous since he has a past record of petty crime. It would also be discovered that Gray hailed from a neighborhood from Baltimore that had a poverty and unemployment rate of double that of the nation.

May 20, 2015

U.S. Sentencing Commission Adjusts Penalties for White Collar Crimes

by David M. Boertje

Recently, the U.S. Sentencing Commission voted to adopt changes in the guidelines that judges use in sentencing white collar crimes – to be effective this coming November. The decision came in part as a reaction to the overpopulation crisis in the prison population, and increasing costs of incarceration. The current state of sentencing for economic crimes reflects public outcry that followed the Enron case and other crises in the early 2000s. This resulted in steady increases in the length of prison sentences for white collar crimes, where federal courts routinely hand out sentences of 10 or 20 years – and sometimes significantly more – in a wide variety of fraud cases.

The purpose of the commission is to serve as an independent agency to establish sentencing practices in federal court and to help congress develop efficient crime policy.

May 18, 2015

Protester Rights and the Bail Process

by David M. Boertje

On April 12, 2015, a man by the name of Freddie Gray was chased down and arrested for “possession of a switchblade” by Baltimore PD. Eyewitnesses report Gray screaming and asking for medical attention. By April 19, a week later, Gray had slipped into a coma and died while in police custody. Autopsy reports indicate that Gray’s neck was broken and his spinal cord was nearly severed. His death set off yet another wave of daily protests decrying police racism and brutality in west Baltimore that boiled over into riots throughout the last week of April. By April 27, Maryland Governor Larry Hogan declared a state of emergency and even imposed a 10pm curfew.

Meanwhile, a wave of national protests sprung up in support of Baltimore, including San Diego. In San Diego, hundreds marched once again in the neighborhood of City Heights, known in the area for being one of the historically poorest neighborhoods in this tourist town, as well as downtown San Diego. The City Heights area has also held a number of “BlackLivesMatter” protests in the past several months following the deaths of Michael Brown and Eric Garner. While many of these protests have not led to any arrests, that has not always been the case. Meanwhile, in Baltimore, there are reports of frightening instances of medical volunteers and legal observers being arrested without charges. In addition, a video of a Freddie Gray protester being pepper sprayed and slammed to the ground has also made its rounds to the internet.

May 13, 2015

Freddie Gray Tragedy a Lesson in Constitutional Rights

by David M. Boertje

As Baltimore becomes the latest casualty of events transpiring from police brutality, another Justice Department investigation is underway for the multitude of constitutional rights Freddie Gray may have suffered at the hands of police. Most people don’t think of criminal law as being fundamentally intertwined with our basic constitutional rights, or even as a ‘subsect’ of constitutional law. The purpose of this post is to break down which fundamental constitutional rights have significant implications for the rights of criminal defendants.

The Constitution

Most of the constitutional principles cited by criminal defense attorneys come from the first 10 amendments in the Constitution (aka the Bill of rights). Because the Constitution only applies to government actors, only those acting on behalf of the government (ie. police) can be liable for violating constitutional rights.

The 1st Amendment guarantees the free exercise of religion, speech, press, the right to peaceably assemble (ie. protest) or the petitioning for a governmental redress of grievances. This amendment has made its way into the spotlight again because more and more people are being arrested for civil disobedience, filming police, or participating in protests- all protected 1st Amendment activities. Violations of 1st Amendment give a right of action to sue the state actor for civil damages.
The 4th Amendment prohibits “unreasonable search and seizures” and “government intrusion into their persons,” whether through police stops of citizens on the street, arrests, or searches of cars during traffic stops. The right applies any time you are stopped, pulled over, arrested, detained, or in the safety of your home. Evidence seized in violation of the 4th Amendment is unlawful, and cannot be used against you in court.
The 5th Amendment protects you against self-incrimination, which is where the Miranda right, or right to remain silent stems from. This means that whenever you are taken into custody, you do not have to say anything to the police, and can ask for a lawyer. Voluntary statements are statements that will be used against you, so it is best to not say anything. Statements that have been taken in violation of the 5th Amendment (ie. a coerced confession) are also inadmissible against you in court. The 5th Amendment also protects you from “double jeopardy,” meaning you may not be put on trial more than once for the same offense.
The 6th Amendment gives you multiple rights: the right to confront a witness (meaning you may confront the person accusing you of a crime), the right to be notified of the charges against you, the right to a public trial in a criminal case, the right to be evaluated by a jury of your peers, and the right to a ‘speedy’ trial. However, it does not specify exact time limits. Thus, judges decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out. The 6th Amendment also gives you one of the most famous rights: the right to be issued an attorney in a criminal trial, if you cannot afford one.
The 14th Amendment prohibits states from violating an individual’s rights of due process and equal protection. This means that legal proceedings must be fair, following the formal processes, and that defendants are not treated differently based on race, gender, or religion. This is the most heavily litigated portion of criminal law, as racial profiling has been shown to be rampant amongst most police forces, including San Diego.

May 11, 2015

The Infamous California “3 Strikes Law”- Which Crimes Count?

by David M. Boertje

The State of Washington was the first state in the nation to pass the ‘no-nonsense’ 3 strikes policy to address repeat, criminal offenders in 1993. California enacted its 3 strikes law shortly after Washington in 1994. These “habitual offender laws” are statutes adopted by individual state legislatures to impose harsher sentences on those who have committed three or more felonies. In most states including California, this means a life sentence without the possibility of parole on the 3rd strike.

Since 1993, 28 states have passed that same policy (Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin), with Massachusetts being the latest state to adopt a 3 strikes law in 2012.

May 7, 2015

Landmark Ruling: Police May Not Detain Traffic Violators Longer than Necessary

by David M. Boertje

The Supreme Court once again re-visited the topic of traffic stops (the Court held this past December that evidence obtained from a search at a traffic stop based on a mistake of law was okay). Its most recent ruling issued on April 21 held that that police may not detain a traffic violator longer than necessary so as to allow police time to conduct a dog sniff for drugs. See Rodriguez v. United States.

On March 27, 2012, defendant Denny Rodriguez was stopped alongside a Nebraska highway for swerving in and out of lanes, by Officer Morgan Struble, who subsequently questioned him, checked his license, registration, and whether he had any outstanding arrest warrants. He also checked the documents of Rodriguez’s passenger as well. Twenty minutes later, the officer tried to detain Rodriguez further, to which he objected. Rodriguez was detained while additional officers and a K-9 unit arrived at the scene. The K-9 sniffed out a bag of amphetamines and Rodriguez was indicted for possession and intent to distribute methamphetamine and sentenced to five years in prison. He appealed to the Supreme Court which granted certiorari, and with Justice Ruth Bader Ginsburg speaking for the 6-3 majority, the Court held that officers may only check a driver’s license, registration, and any outstanding warrants. The stop becomes “unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.”

What This Means

May 5, 2015

Another Incident of Police Reacting Badly to Being Filmed

by David M. Boertje

On Tuesday, April 21, the U.S. Marshals Service announced they would be reviewing a video that shows a deputy U.S. Marshall in South Gate, California charging at a woman who was filming them at a crime scene, grabbing her phone, smashing it onto the curb, and then subsequently kicking her belongings (you can view the 53-second video here). Unbeknownst to the U.S. Marshals, someone else was quietly filming the woman doing the filming, and posted their video capturing the incident online. While the caption originally tagged the South Gate Police Department, it has been confirmed that the ‘officers’ involved in the video were U.S. Marshals, and the incident is now being “investigated.” In an interview with the Los Angeles Times, Beatriz Paez, 34, said she feared for her life during the confrontation. According to her attorney, the phone’s screen is shattered and doesn’t work, but they will be trying to recover Paez’s video from the phone’s chip.

Constitutional Violations

I have blogged about the constitutionality and the right to record police before, but today, I am going to discuss the potential civil rights violations that may have occurred in the aforementioned incident to further drive in my point that those exercising their constitutional rights are not doing anything illegal or wrong. By now, it should be obvious to most of you that constitutional law and criminal law are inter related, and have huge implications for those who have been subject to criminal charges and/or actions by police. Because of 1st amendment protections of free speech and 4th amendment protections against unlawful search and seizure and undue force, there should be no situation where an officer can intentionally grab and destroy a camera being used to lawfully record law enforcement in a public place, especially when the filmer was not impeding on police activities.

April 29, 2015

Francis Pusok and Walter Scott Illustrate the Continued Need to Preserve the Right to Film

by David M. Boertje

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news. In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana. In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert. Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability. As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party. This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

April 22, 2015

Unprecedented Criminal Case on New Revenge Porn Law

by David M. Boertje

On Friday, April 3rd, 28 year old San Diego man Kevin Bollaert was convicted in the San Diego Superior Court and sentenced to 18 years for 27 counts of identity theft and extortion via California’s newly enacted revenge porn law. Additionally, he was ordered to pay $10,000 in restitution. Although Bollaert is not the first to be convicted under California’s new law, his steep sentence is unprecedented. Specifically, Bollaert ran a revenge porn website (called Yougotposted) which allowed vengeful ex-husbands and boyfriends to post nude photos of their ex-girlfriends and link them to the women’s personal social media accounts. Bollaert, a Web developer, posted the pictures and then charged women from $300 to $350 to have the pictures removed. Prosecutors alleged that over 10,000 photos from California and other states were posted on Bollaert’s website between Dec. 2, 2012, and Sept. 17, 2013.

Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. The hearing took all day, and eight women testified on how they were damaged by Bollaert’s actions. This was the first case of its type in the country, and California was the first state to prosecute someone for posting humiliating pictures online. Above all else, this case is more about online harassment, threats, and extortion.

New Legislation