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.

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.