Man Acquitted by Jury, Still Sentenced to 15 Years

The South Florida Sun Sentinel is reporting that a man acquitted in two separate jury trials of fondling pre-teen girls has been sentenced to fifteen years in prison based upon the same evidence which amounted to a violation of his probation. The case underscores the very real possibility of being sentenced on a probation violation despite being found not guilty of the same conduct by a jury. The legal basis for such an outcome lies in the different standards of proof applied to jury trials versus that applied to hearings on violations of probation. While the standard of proof in a jury trial is “proof beyond a reasonable doubt,” in order to be found in violation of probation, in Florida, as in California, the prosecution bears the much lower standard of proof known as “preponderance of the evidence.” Additionally, whereas convictions on new law violations generally are determined by a jury, violations of probation (even if based upon the same evidence) are decided by a judge.  In essence, while a jury may acquit a defendant based upon a failure of the prosecution to meet the higher standard of proof, a judge considering the same evidence may still nonetheless conclude that the lower standard of proof has been met and thus sentence a defendant based upon a violation of his pre-existing probation.

Jailers More Likely to Use Force on Mentally Ill Inmates

The LA Times is reporting that deputies in LA County jails are more likely to use force on mentally ill inmates than other prisoners. According to a report by the Sheriff’s Department, although inmates classified as mentally ill make up only 15% of the inmate population, approximately one-third of deputy use-of-force cases involved those inmates.

Although mental illness issues often lead to violent outbursts necessitating use of force, the report highlights the need for better training for law enforcement when it comes to identifying and dealing with mental health issues in detainees. As stated by Peter Eliasburg, legal director of the ACLU of Southern California, “You have to be on guard that some of them behave differently and they often do things that if they didn’t have mental illness, it would be a real true sign of aggression … . But if you’re sensitive that this is an inmate with mental illness, you realize it’s not a deliberate attempt to incite.”

Study Shows Wrongful Conviction Rate of Up To Six Percent

As reported by the Richmond Times-Dispatch, a comprehensive study by the Urban Institute has found that wrongful conviction rates in violent felony cases is as high as six percent. Samuel R. Gross, a professor at the University of Michigan Law School and a former criminal-defense lawyer, attended the presentation made by the Urban Institute in November and said that “this is a very big surprise. I would have guessed an error rate of 1 or 2 percent. Six percent is surprisingly high.”

Given the fact that the study focused on only violent felony cases, and that those are the types of cases that the most prosecutorial resources are devoted to, it is likely that the rate is even higher for cases that don’t rise to the level of “violent felonies.”

Download the report by clicking the link below.

Download PDF

Arson Investigation Burn Pattern Theory Debunked

A November 2011 study by The Arson Project has confirmed the hypothesis that ‘the presence or absence of an ignitable liquid in a post-flashover setting cannot be determined through visual examination of the resulting burn patterns. Any attempt to do so is no more reliable than a flip of a coin.”

Download the Full Report by clicking the button below.

Download PDF

Novel Conservative Approach to Death Penalty Debate

As more and more Republicans are taking the “Right on Crime” (as opposed to “Tough on Crime”) approach, the Concord Monitor is reporting that Republican State Representative Phil Greazzo has come out in favor of abolishing his state’s death penalty statute. What makes his position noteworthy is not only the fact that he is a conservative, but also that Rep. Greazzo has a history of favoring the expansion of crimes to which the death penalty could apply. Despite generally seeking to broaden the use of the death penalty, Rep. Greazzo said he sees such inconsistency in the current law that he would sooner have lawmakers eliminate the death penalty altogether than maintain the status quo.

While Rep. Greazzo’s position is a far cry from seeking to abolish the death penalty altogether, it is refreshing to see another conservative join the ranks of those who recognize that the current system is broken.

Reckless Response to Service Call vs. Reckless Evasion of Officer

The Bakersfield Californian is reporting that the recent accident involving a Kern County Sheriff’s Deputy and two pedestrians (which resulted in the deaths of those pedestrians) was a result of the officer responding to a report of a stolen vehicle. Whether or not the officer’s siren and emergency lights were activated at the time of the accident is still unknown (to the public). The story is tragic in every respect and one can only hope that Sheriff Donny Youngblood is sincere when he says the department as a whole is deeply saddened by the deaths. Unfortunately, this evokes memories of similar incidents in which innocent pedestrians have been killed during police pursuits of fleeing criminal suspects. Understandably, the public outrage directed to the defendants in those cases was harsh, as was the response of both law enforcement and the District Attorney’s Office in their prosecution of the defendants. At this point, given the public comments posted in relation to the story, it appears that at least the public is concerned about the prudence (or lack thereof) of the officer’s actions. One can hope that that level of concern is mirrored within the District Attorney’s Office once the investigation is complete and the case is submitted for a determination of whether or not to file criminal charges.

More Young Adults Arrested Than Ever Before

According to the New York Times, nearly one third of American adults have been arrested for a criminal offense by the age of 23.  In my experience, arrests at this early age generally have one of two effects on the person arrested: they either act as a wake-up call and lead the young adult to come face-to-face with the reality that poor choices can lead to some very serious negative consequences, or they simply become remembered as the first, in a long history of run-ins with the criminal justice system.

As the article implies, how a young adult addresses their first encounter with the criminal justice system system can play a key role in the development of the remainder of their adult life.  Given the fact that schools and employers are now using the internet and the vast array of information available it provides to screen potential job or school applicants, it is imperative that young adults who find themselves charged with a crime, yet who are also mindful of their future prospects, retain an experienced criminal defense attorney with an eye toward limiting any possible lasting damage of an arrest and/or conviction.

More on “Strikes” in California

The law in California on “Strikes” can be very confusing, mainly because there are different types of “Strikes” and, depending on what type of “Strike” you have been charged with, the difference determines what percentage of your sentence you will actually serve.  In California, “Strikes” are categorized as either “Serious Felonies” or “Violent Felonies”.

“Serious Felonies” are defined by California Penal Code section 1192.7.  Depending on your prior criminal history, if you are convicted of a “Serious Felony,” you will have a “Strike” on your record, but you will serve only half of whatever sentence is imposed (commonly referred to as “half time”).

On the other hand, “Violent Felonies” are defined by California Penal Code section 667.5.  Convictions for “Violent Felonies” will also result in a “Strike” on your record, but also carry the added consequence of having to serve 85% of any sentence imposed.

If you have been charged with an offense that you believe may result in a “Strike” on your record, or if you have questions about prior convictions and whether or not you have a “Strike” prior, call us today for your free initial consultation.

24 DUI Detection Cues Police Use

The National Highway Traffic Safety Administration (NHTSA) has identified twenty-four visual cues to aid officers in detecting nighttime impaired drivers.  Be advised that any one of these cues may cause an officer to believe that you are driving under the influence and therefore pull you over.

  1. Weaving
  2. Weaving Across Lane Lines
  3. Straddling A Lane Line
  4. Swerving
  5. Turning With Wide Radius
  6. Drifting
  7. Almost Striking Object or Vehicle
  8. Stopping Problems (too far, too short, too jerky)
  9. Accelerating or Decelerating Rapidly
  10. Varying Speed
  11. Slow Speed (10 mph + Under Limit)
  12. Driving In Opposing Lanes or Wrong Way on One-Way Street
  13. Slow Response to Traffic Signals
  14. Slow or Failure to Respond to Officer’s Signal’s
  15. Stopping in Lane for No Apparent Reason
  16. Driving Without Headlights at Night
  17. Failure to Signal or Signal Inconsistent with Action
  18. Following Too Closely
  19. Improper or Unsafe Lane Change
  20. Illegal or Improper Turn (too fast, jerky, sharp, etc.)
  21. Driving on Other Than Designated Roadway
  22. Stopping Inappropriately In Response to Officer
  23. Inappropriate Or Unusual Behavior (throwing objects, arguing, etc.)
  24. Appearing to be Impaired

Robbery Penal Codes

Robbery offenses are quite serious, not only because of the potential for lengthy prison commitments, but also because they amount to “Strikes” on your record and require that you serve 85% of any prison sentence imposed upon conviction.  In California, simple petty theft offenses can easily turn into robbery charges if there is any allegation that force or violence was used or threatened in order for the suspect to retain possession of the stolen merchandise.  The key to successfully defending against robbery charges is often an immediate and thorough investigation by a private investigator, at the direction of an experienced criminal defense attorney.


Robbery Penal Codes

211.  Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

212.  The fear mentioned in Section 211 may be either:

1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or,

2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.

212.5.         (a) Every robbery of any person who is performing his or her duties as an operator of any bus, taxicab, cable car, streetcar, trackless trolley, or other vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, and used for the transportation of persons for hire, every robbery of any passenger which is perpetrated on any of these vehicles, and every robbery which is perpetrated in an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and

Safety Code, a trailer coach as defined in the Vehicle Code which is inhabited, or the inhabited portion of any other building is robbery of the first degree.

(b) Every robbery of any person while using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine is robbery of the first degree.

(c) All kinds of robbery other than those listed in subdivisions (a) and (b) are of the second degree.

Download PDF