Bay Area Criminal Lawyer Blog

A wise man once said "if the World ends in our lifetime, Facebook will have had something to do with it." And while the social networking site has connected people like never before, reduced degrees of separation, and developed its own rules of etiquette, which are perhaps even more important than the traditional manners our parents taught us, Facebook also has another dimension that is growing into prominence: a role in criminal justice.

This blogger was in court last week and overheard a criminal sentencing hearing at which Facebook became an issue. A man was being sentenced after a guilty verdict at a trial in which he was accused of battering a woman with whom he was in a dating relationship. However, it was clear from the comments of the attorneys at the sentencing hearing that this verdict had been a close call and there was volatility on both sides of this relationship. Nonetheless, one of the first things that the Prosecutor brought up was a recent check of the Defendant's Facebook page, which the Defendant had allegedly status updated 40 minutes after the verdict to read: "This bitch is crazy, if anyone sees here somebody needs to scratch her."

The Judge considered this a serious issue and an indication that the Defendant had not learned from his conduct and was now threatening the alleged victim in the case with further violence.

This circumstance is not uncommon. Prosecutors often look up their prosecutees on Facebook, often even before charging them with a crime. For example, this blogger once represented a young woman accused of DUI, and, as is standard operating procedure at this firm, was on the phone with the Prosecutor trying to talk her out of filing the charges because it was a close call, it was an isolated incident, my client is a responsible young woman who is employed at ____ and wants to move up to a better position at ____ and can't have a DUI on her record to do so. To which the Prosecutor responded, "oh yeah? Have you checked out your "responsible young woman's" Facebook page? Which, of course, was public and contained many pictures of her with liquor bottles in hand, taking swigs, doing shots, and overall partying it up.

Which is not to say that any of those things are bad. What is bad, however, is when someone brings a camera, and suddenly those things are public and accessible to those who may not be your friends. Such as, for example, people who are paid to build a criminal case against you.

But the power of Facebook cuts both ways. Another example, in the other direction, involves a group of NYC police officers who updated their Facebook pages to include their comments in a forum for officers sick of having to work at the city's annual "West Indian American Day Parade," a celebration of NYC's extensive Caribbean community. The name of the Facebook Group was "No More West Indian Day Detail," and when some of the member officers testified at the trial of a West Indian man accused of illegal weapon possession, the defense attorneys confronted the officers with the race-related epithets that the officers themselves had posted on the Facebook group page. The jury trial resulted in an acquittal.

The moral of these stories is simple: keep your Facebook page private (unless you are a witness for the Prosecution). Be Facebook friends only with people you trust will not talk to a potential prosecutor or police officer trying to gather information from you, and, most of all (since you never know the skill/financial incentive of the photographer), don't pose for the camera while doing shots, bong hits or flashing gang signs. Help us to help you!

Jerry Sandusky, now gaining ground on Michael Jackson for "most famous accused child molester of all time" has lately been dominating much of the news, and, perhaps most distressingly, Sportscenter. The reports are alarming and stomach-turning, but, we must remember, they are designed to be so.

Charges of child molestation are arguably the most incendiary. But there is also a high margin of error, especially when years have passed since the alleged acts.

This is especially true in a high-profile case, where the media, whose job it is to deliver a product that will demand peoples' attention (Which is accomplished through sensationalizing facts, and stoking outrage by waxing on about justice and what should be done with someone who committed such heinous acts), has taken a story and "mediafied" it, packaging it for mass consumption.

However, in a court of law, there are rules about what can be said and what cannot, what evidence is admissible and what is not, and these rules are designed not for the purpose of producing scintillating stories, but for the purpose of producing fairness. No one expects the media to act any differently, however,

All that is said in order to say this: Jerry Sandusky may not be guilty. We'll stop short of saying that he "deserves" a fair trial; as an American he is entitled to one regardless of whether he deserves it. We'll stop short of admonishing people not to pass judgment until they hear all the facts in a court of law; People are free to think and judge as they wish. The point here is that Sandusky may not, in truth, be guilty, or he may be guilty of something far less serious than that of which he is accused. And the truth cannot and will not be learned through the vehicle of the mass media, which neither desires nor aspires to uncover the truth in this way.

A court of law is designed for truth uncovering, and while it doesn't necessarily work as designed, at least we know Sandusky will have a chance to confront his accusers, who we have not heard from yet, and present evidence on his own behalf, which we have not seen yet.

Jerry Sandusky, as an accused child molester, may now have but one person in the entire world advocating for him: his defense attorney. Which, for a celebrity (or prominent coach who became a celebrity solely because of the accusations), makes it particularly crucial to choose the right defense attorney.

Speaking for the accused is often difficult, and always controversial, though it shouldn't be. Criminal defense attorneys get paid to do so, and in some cases, they accept the money because they do not care; these individuals would seemingly do or say just about anything if the price were right.

But some criminal defense attorneys have chosen their profession because they believe in it. Because they know that people are falsely accused on a daily basis. That charges against innocent people are false or exaggerated, but that members of the community presume them guilty. Only someone driven internally by these core values can advocate externally in the honest and genuine way necessary to open the minds of the public and, most importantly, the jury, to the possibility of innocence.

Crackdown on Medical Marijuana Dispensaries Will Mean Crackdown on Marijuana in General

A California Appellate Court's ruling in City of Riverside v. Inland Empire Patient's Health and Wellness Center will undoubtedly lead to many communities, most of whom were only begrudgingly allowing the existence of marijuana dispensaries, to quickly move to shut them down. While the dispensaries of more liberal communities such as Oakland and San Francisco are likely safe, other communities, such as those in Contra Costa, Solano, and Sacramento counties and the more conservative areas of Alameda county are most likely going to be fighting for their lives over the next few months.

Moreover, some of the more vulnerable dispensaries are facing a two-front jurisdictional war, as the heads of the four California U.S. Attorney's offices have also recently turned their gun sights on them.

One side effect of this new war on marijuana in California will undoubtedly be an accompanying crackdown on marijuana possession, transportation and processing. This may not sound like significant news, but it is likely that the crackdown will be more pervasive than might be imagined at first blush. While simple possession of under an ounce of marijuana has been decriminalized under California law, the decriminalization law applies very narrowly. In fact, many marijuana products that have become commonplace with the rise of retail dispensaries are not protected by the decriminalization statute. For example, it remains a possible felony in California to possess even a very small amount of concentrated cannabis, which would include very small amounts of hash or any form of edible marijuana. Even the very act of processing marijuana into edibles may, itself, be charged as a felony.

And, of course, federally, possession of even a small amount of marijuana in any form at all is illegal, as marijuana remains a Schedule 1 controlled substance (like cocaine and heroin).

One effect of the "dispensary era" has been to create an industrial infrastructure for the legal production and distribution of the substance, as well. Many of the individuals working within that infrastructure have reaped profits from it, some even building their livelihood around it. It is unlikely that those individuals will easily transition to other vocations, especially with the lack of availability of other profitable pursuits given the difficult economic times. Thus, there will be plenty of cases for police and prosecutors to direct their resources toward and keep themselves busy with, as what are now legal activities metamorphose into illegal activities once again.

Thus, as dispensaries close their doors, we would expect to see an uptick in the prosecution of marijuana-related offenses. But because of the state of the law, these charges should be fought vigorously. This is a call to action for lawyers who are motivated by principle rather than by profit. The solely-for-profit attorney (aka "dump truck") will sign clients up, but then focus on all the reasons why they have bad cases and should make a deal with the prosecution. The principled defense attorney will fight because they are fighting against injustice, unfairness and corruption, and the re-criminalization of marijuana presses all those buttons within them. It is these latter attorneys - an increasingly rare breed - who effectuate change by fighting which yields perhaps the most powerful weapon in this political issue: increasing the cost for police and prosecutors to pursue these cases.

The execution of Troy Davis in Georgia was apparently carried out under a unique evidentiary standard. Instead of "beyond a reasonable doubt," as is used in most criminal prosecutions, or "probable cause," which is used in civil trials, the Georgia Board of Pardons and Paroles used an oft-cited standard in their part of the country: "we know a black man did it, this man is black, so close enough."

The Georgia Board of Pardons and Paroles voted 3-2 (does it strike anyone else as barbaric that the clemency board vote doesn't have to be unanimous?) to deny Davis's clemency petition despite the fact that the ballistics evidence presented at his trial was later determined to be faulty, that seven of the nine witnesses who identified Davis at his trial as the shooter had recanted their testimony, that one of the two remaining witnesses who did not recant is suspected of being the real shooter (and had made admissions about being so), and the other remaining non-recanting witness had been up for 24 straight hours at the time he observed the shooting, saying that night that he would not recognize the shooter if he saw him again. In short, this kind of evidence would result in a quick "not guilty" verdict in any functioning justice system, yet in ours it resulted in a guilty verdict, the denial of all clemency petitions, and, as of September 21, the government injecting a lethal dose of Pentobarbital into the veins of one of its citizens.

Interestingly, the same clemency board that denied Davis's petition granted that of another man, who admitted that in 1988 he killed his former boss, a store manager at a lumber company in Douglas County, Georgia, by shooting him three times, beating him with a crowbar and, noticing signs of life persisting, finishing him off with a full paint can. This admitted killer, Samuel David Crowe, is white. The Georgia Board of Pardons and Paroles cited the fact that Crowe admitted his crime as one of the reasons for sparing him the death penalty and commuting his sentence to life in prison.

Troy Davis maintained his innocence until his moment of death, in fact reiterating his innocence to the family of the murder victim who, quite tellingly, chose to be present at the execution.

Now that three of the five members of the Georgia clemency board and the family of the murder victim finally have their feeling of sweet revenge, we propose to honor Troy Davis with some new guidelines, called "Troy's Law," which will prevent such glaringly unjust results in our severely broken criminal justice system:

No person shall be executed in any of the following circumstances:

1. If they were convicted in a state that was a member of the Confederate States of America and/or designated a slave state as a result of the Missouri Compromise of 1820 (this means you, Texas);
2. If, at trial, the prosecution relied on any eyewitnesses testimony to prove identity;
3. If any of the prosecution's evidence presented at trial is later discredited in any manner;
4. If the science underlying any of the prosecution's evidence presented at trial is later discredited in any manner;
5. If any misconduct whatsoever by the prosecution in relation to the conviction is later discovered;
6. If any of the jurors from the original trial later express doubts about their decision;
7. And, we shouldn't have to say this, but, if ANYONE on the clemency board thinks that clemency should be granted.

Or, better yet, abolish the death penalty altogether, since our system is terribly dysfunctional and viewed, appropriately, as primitive and barbaric by the rest of the civilized world.

A San Francisco employment lawyer who specializes in sexual harassment cases has been charged with rape and other crimes for allegedly attacking three women. Robert Michael Hoffman, 50, allegedly sexually assaulted a 36-year-old East Bay woman in March, a 19-year-old San Francisco woman in June and a 25-year-old East Bay woman earlier this month. The allegations include rape, sexual battery, forced oral sex and one count of false imprisonment.

The interesting twist here is that the women allegedly came to his apartment in response to his Craigslist ad for rough sex. An ad posted in June stated, in part, "I want you, I want to hit you, I want you to cry," court documents show. "I want you to be scared of me sometimes." Other ads told women who agreed to meet him they would be pulled to their knees by their hair, slapped, degraded and humiliated.

Hoffman's attorney said the encounters were "implicitly consensual" since the Craigslist ads clearly indicate the sex would be rough. "His ads are direct, to the point and make clear that he is looking for sexual encounters that included domination, control and some form of sadomasochistic activity," he said. He also alleged that one of the alleged victims wrote an email to Hoffman stating, "I read your ad and sounds so hot."

It would be a tall order to ask a jury to convict a person of rape under these circumstances. Aside from the obvious "consent" defenses based on the fact that the alleged victims knew from the explicit language of the ad they were responding to, it may also be a defense that Hoffman reasonably thought the women were consenting, which is arguably not rape under California law.

It is somewhat surprising that a case with such obvious weaknesses is being pursued by the DA's office. However, D.A. George Gascon is one of three candidates on the ballot for the November 8, 2011 District Attorney election, and is reportedly trailing the other two in fundraising. Never having prosecuted a case himself, Gascon, the former SF Police Chief was tapped earlier this year by former Mayor Gavin Newsom to finish out the term vacated by Kamala Harris when she was elected state attorney general.

These are ruinous charges for a person to endure. Bad enough that his private sexual behavior is now public (though he arguably assumed this risk in violating the rule we were all taught in kindergarten, "Never Talk to Strangers," and its lesser-known but no-less-important corollary: "If You Do Talk to Strangers, Never Involve a Ball Gag, a Rubber Mask, or a Cat-of-Nine-Tails In That Conversation"), but he is now being held in custody, precluding him from carrying on his law practice, and causing irreparable damage to that business regardless of the outcome.

If these charges stem from Gascon wanting to define his tenure in light of the upcoming election, it is a risky move. It is reminiscent of the infamous "Duke Lacrosse" case, wherein three Duke athletes were charged with rape and other sex charges on a sex worker with a history of mental problems they had hired for entertainment at one of their parties. Despite major credibility problems with his prostitute/victim, despite other deteriorations in the evidence, the Durham, NC Prosecutor fought on. He ended up disbarred for his efforts.

All of that said, this is one for the history books in terms of sheer entertainment value. Stay tuned.

As everyone in the Bay Area knows, Santa Cruz resident Bryan Stow was brutally beaten earlier this year in a stadium parking lot in Los Angeles, after wearing a Giants shirt to a Giants vs. Dodgers game. Since then he has been in and out of a coma, but is reported to be, thankfully, showing signs of improvement after continuous hospitalization for four months.

In May, under tremendous pressure due to the nationwide news coverage this crime was receiving, Los Angeles police investigated and ultimately arrested Giovanni Ramirez for the beating. Despite the obvious difficulties in investigating a crime with few leads and even fewer witnesses, LAPD assured the public that they had the right guy, going so far as to have police chief Charlie Beck state that he was "absolutely" confident that police had the right suspect. In fact, he stated it even more specifically than that; "Absolutely . . . I am as sure as you need to be to make an arrest and pursue a prosecution."

Police were later forced to release Ramirez based on a lack of evidence. Now that two other suspects, Louie Sanchez and Marvin Norwood, have been charged for the same crime, how much credibility does LAPD have in asserting they have the right people in custody? Are they as "sure as they need to be?"

What the LAPD's very public mistakes have done is bolster the defense for Sanchez and Norwood. A good defense attorney in this situation will take all of the police reports, investigative records and public statements relating to the case against Ramirez, and use them to illustrate the compelling point that if police were so sure that Ramirez did it, there must necessarily be at least some doubt about their own clients' guilt.

Jurors tend to trust police officers' testimony in criminal trials. The perfectly pressed uniform and shiny badge glistening in the courtroom lights are often too much to overcome, even when there are legitimate gaps in the State's evidence. In fact, highly publicized cases such as this are a perfect storm for the conviction of an innocent person: public outrage, sympathetic victim, desire for justice, and honorable police officers testifying in earnest about their investigation. If there are any gaps or weaknesses in the evidence, it is all too easy for jurors to minimize and look past them, instead putting their trust in the police and voting to convict.

But here, if the attorneys representing Sanchez and Norwood are sharp, they will take the gift that police have given them by being so publicly "sure" about the guilt of another suspect, and use it to dull the sheen on those badges. Done tactfully, this strategy should cause the jury to critically question all of the evidence that, the police now assert, points to different suspects than they previously thought.

We hope the perpetrators of the crimes against Mr. Stow are taken off the streets, as there is no place in our society for that kind of brutality. But anyone following this case, including the jury that is ultimately assembled to hear the evidence against Sanchez and Norwood, must start from a position of doubt about the defendants' guilt and with zero confidence that the police have arrested the right people.

Steven John Carlson was arrested Sunday, August 7th for the alleged stabbing and murder of Foothill High schoolmate Tina Faelz in 1984. The crime shocked the community and many close to the case are remembering the horrific details once again.

Faelz, 14, was last seen alive while walking home from school around 2:25 p.m. on April 5, 1984. Less than an hour after she took a shortcut through a dark culvert underneath Interstate 680, two other students found her body west of the freeway. She had been stabbed more than 15 times. Faelz had been walking home instead of taking the bus because of some problems she had been having with other students.

Carlson, who was 16 at the time of the murder, was taken into custody as he was being released from a Santa Cruz jail for unrelated drug charges and failing to appear in court. Carlson's name was initially not released to news organizations because he was a minor at the time of the murder. However, custody records from the Santa Cruz jail indicate that his arrest is in connection with Faelz's death. Carlson was questioned back in 1984 but was never arrested or charged in the case.

Two separate factors led to Carlson's arrest. First, unlike all other crimes, there is no statute of limitations on murder, allowing an arrest 27 years later. In California, the statute of limitations on any crime other than murder is usually the maximum amount of time a defendant can spend in custody for that offense. For example, the statute of limitations on cocaine possession is three years, and the maximum sentence for cocaine possession is also three years in prison (however, this statute of limitations rule/formula does not equate to an individual defendant's maximum sentence, as repeat offenders and those with prior strikes can receive more time in custody than a first-time offender).

The second significant thing that led to Carlson's arrest is not as new as the age-old lack of a statute of limitations on murder. In 2007, the Pleasanton Police Department re-submitted existing evidence in the Faelz murder to two separate labs for DNA testing. In October of last year, the FBI responded with a possible suspect, leading to Carlson's arrest on Sunday. As more and more criminal defendants are required to submit to DNA testing as a condition of receiving probation (all individuals in California who are sent to prison are already required to provide a DNA sample), law enforcement will have more tools to track down violent offenders.

While a large statewide DNA database may seem like a good thing, there are also privacy concerns. Many people question whether individuals charged with petty crimes really need to provide DNA samples. Others ask if it is ethical when prosecutors allow for fine reductions or waive other conditions of probation in exchange for a DNA sample from a defendant.

As many criminal defense attorneys and advocacy groups such as the Innocence Project are using DNA to help wrongly convicted defendants gain their freedom, law enforcement is also using DNA to solve old or closed cases. It raises the question of whether Carlson would have been free all this time if DNA testing had been available to the police in 1984.

Resources:

Santa Cruz transient arrested in 1984 stabbing death of Pleasanton school girl, MercuryNews.com, August 8, 2011