Wednesday, December 8, 2010
Crime Law: Criminal Case Dismissed at Trial-Knowing When to H...
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Criminal Case Dismissed at Trial-Knowing When to Hold Out
Criminal Case Dismissed at Trial-Knowing When to Hold Out
By Mark A. Johnson, Esq. California criminal defense, civil rights, and employment lawyer. Offices in Palmdale, Bishop, Oxnard, Rancho Cucamonga and Temecula, California.
Perhaps it’s a bad analogy to equate the resolution of a criminal case to a card came, but the reality of litigation, whether criminal or civil, is often about acceptable risk should a favorable opportunity to resolve a case present itself. The resolution of a case hinges on the strength of a case and ability to finance a protracted matter. In criminal cases the deal offered by the prosecution gets worse if a case is protracted and a strong case exists against the accused. However, most district attorneys are fair when significant disputes regarding fact and law exist.
Today, at the cusp of trial, the deputy district attorney dismissed a case against my client, a case that never should have been filed, and in my opinion, stems from bad blood between my client and former employer. From the onset of this case, when asked if we could settle the case, I replied, sure, “dismiss it.” I give homage to the judge in this matter because he listened earnestly to my position and how the DDA could not make its case at trial and I expected an early disposition of the matter. While usually amenable to a reasonable settlement of a case, I advised dismissal or no deal and we were ready to go to trial. While I have noted in previous articles that I don’t like to gamble over certain outcomes when faced with high risk, but today was different and I saw no downside going to trial or that my client could lose. Yeah for the justice system!
Tuesday, December 7, 2010
Pride and Institutional Arrogance-The Enemy of the Litigant.
Pride and Institutional Arrogance-The Enemy of the Litigant.
By Mark A. Johnson, Esq. California criminal defense, employment and civil rights attorney.
Offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California.
History teaches us that it tends to repeat and we often do not learn from the lessons history has to teach us.
As an attorney who handles a number of employment & civil rights cases, usually representing the employee, and contentious family law matters, I find I am often up against organizations and people who fail to learn from costly lessons of the past relative to its treatment of employees and people followed by arrogance that the organization did nothing wrong or will prevail. In these types of cases I have to batten down for the long haul but inevitably, individuals within the organization just cant help themselves and leave a wonderful trail of evidence that helps my client prevail in the end. I am amused at the cat-and-mouse game as the litigation unfolds and never cease to be amazed at the lack of responsibility organizations take from the beginning of a case. Quite often my client is only looking for a change in the manner he or she is treated but hit a brick wall in the process of seeking improved working conditions and sometimes have the attention focused on the employee, leaving the individual with no other option but the challenge the organization through litigation.
Friday, November 19, 2010
Karma and Inevitability –Restraining Order Defeated
Karma and Inevitability –Restraining Order Defeated
Karma is a law in Hinduism which maintains that every act done, no matter how insignificant, will eventually return to the doer with equal impact. Good will be returned with good; evil with evil.
Not long ago I came across an assistant district attorney who from what I heard had local public defenders terrorized and it was their opinion he was motivated to act by other than virtuous reasons. When I met him I knew it was only a matter of time until his ways came back to haunt him. I was right. He was removed from office just before a case I had was set for trial and the matter was dismissed in my client’s favor.
I just resolved a restraining order on behalf of a client who had seen his daughter only once in the last month and the mother obtained a restraining order that allowed only two hours a week with supervised visits. She then sought to have all visits removed through what are known as ex parte proceedings. This action accelerated the hearing in this matter and the case went forward on a contested basis. To her credit she testified honestly and indicated no threat or acts of violence against her, which are a prerequisite for a restraining order, and the court denied her request for order. My client will now be able to see and communicate with his daughter again. As is often the case, the action was more about hurt feelings and a desire to tell her story. However, in the end Karma and order were restored.
Law Offices of Mark A. Johnson
Criminal Defense, Employment, and Civil Law
Offices in Palmdale, Oxnard, Rancho Cucamonga, and Temecula, CA
Wednesday, November 17, 2010
Crime Law: Choosing the Right Attorney
Crime Law: Choosing the Right Attorney: "Today I met with a family regarding the representation they received in a case that remains on-going. Turns out the attorney did most of th..."
Choosing the Right Attorney
Today I met with a family regarding the representation they received in a case that remains on-going. Turns out the attorney did most of the right actions but lacked the patience and proverbial bed-side manner to fully explain the criminal process to the client and family and what they had left to experienced. I have examined the merits of a case against the attorney but that is not a business I want to be in. Tragically, in this case, more was charged for the work done.
In choosing an attorney, perhaps the two key factors are: job knowledge and second, the attorneys ability to convey and explain information. If you talk to attorney who seems uncertain about what he or she speaks or has to refer to others before answering, you might need to proceed with caution.
In choosing an attorney, perhaps the two key factors are: job knowledge and second, the attorneys ability to convey and explain information. If you talk to attorney who seems uncertain about what he or she speaks or has to refer to others before answering, you might need to proceed with caution.
Saturday, November 6, 2010
Im Humbled
I am grateful that with some regularity I receive an email, note or text from former students and past and current clients thanking me for an influence I had in their life. Teaching and the practice of law have been my niche in life.
This week I received a touching note from a client that reads in part, "Mark Thank you so very much! After spending much time and energy on incompetent lawyers, you were a God-send. We were so impressed with your services. What a blessing to know there really are honest, sincere, knowledgeable and capable attorneys!!!!" The note of gratitude was particularly rewarding because I was referred by an attorney whom I have great respect for.
A week ago a student called and left a message that he just needed some inspiring words. I've had students tell me they were ready to give up on school and that they changed their major because of my influence.
There is something to the saying if you love what you do it will shine through.
This week I received a touching note from a client that reads in part, "Mark Thank you so very much! After spending much time and energy on incompetent lawyers, you were a God-send. We were so impressed with your services. What a blessing to know there really are honest, sincere, knowledgeable and capable attorneys!!!!" The note of gratitude was particularly rewarding because I was referred by an attorney whom I have great respect for.
A week ago a student called and left a message that he just needed some inspiring words. I've had students tell me they were ready to give up on school and that they changed their major because of my influence.
There is something to the saying if you love what you do it will shine through.
Saturday, October 30, 2010
Crime Law: Divorce Law-Grab a Tiger by the Tail-Leave Sleepin...
Crime Law: Divorce Law-Grab a Tiger by the Tail-Leave Sleepin...: "The following is provided for general informational purposes only and should not be relied upon in any manner before consulting with a licen..."
Divorce Law-Grab a Tiger by the Tail-Leave Sleeping Tigers Alone
The following is provided for general informational purposes only and should not be relied upon in any manner before consulting with a licensed attorney in your state.
Divorce Law-Grab a Tiger by the Tail
Authored by California attorney Mark Johnson with offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California. http://www.crimelaw.org
Divorce law, particularly when children are involved, can be extremely acrimonious, and it affects me the most on a personal level due in part the lawyer becomes a therapist, too. I generally will not accept a case if the client's goal is to take the other party to task on every infraction. For example, "S/he was a minute late dropping off the kids, I want you to file a contempt of court motion." I made the mistake once of representing a good friend with his case, with a single child support matter taking two years to resolve and the parties were constantly trying to one-up the other.
I recently gave pro bono assistance to a father who I saw in family court representing himself. I met with him several times and gave advice on strategy and likely outcomes and the best way to approach his case. The best information I can convey sometimes is that the legal system is not about right or wrong but whether conduct is lawful and if a court can provide any relief to an aggrieved party. Other mantras I share are: you may never be vindicated, particularly in family court; bad things happen to good people, life isn't always fair, mean people win sometimes; take the high road, live well and put this behind you as soon as possible.
The father I am helping finally heard and most importantly accepted what I had to say including, put down your sword and extend an olive branch of peace. He listened to my advice and let me know he has obtained what he wanted on an informal basis while his next court date is pending. He understands what he must accept and cannot control, as distasteful as it can be. He recently called to tell me he will continue his case on his own because he fears any change in the status quo will cause a contentious reaction and since he is making forward progress he does not want to risk going backwards.
I am so impressed by this gentleman who has already raised two children who are adults now and he is beside himself that he does not have the unfettered access to his two-year-old daughter that he had with his grown kids. He is of modest means and education but I am touched and moved by him each time we meet.
CAREFUL WHAT YOU WISH FOR
A court/judge has no interest in one's personal affairs, of a civil nature, until people cannot resolve a dispute on their own. Divorcing parents are free to make whatever child custody arrangements they choose, for the most part, and the court only gets involved if the parents can't agree.
Before I continue, its important to stress that parents can, and do, say any defamatory and untrue remark about the other with near impunity. Occasionally a judge may penalize a parent for making demonstrably untrue accusations, but this is the exception and not the rule and I have never heard of a judge referring a case to the district attorney for perjury charges despite most legal papers requiring a statement be executed under penalty of perjury. Individuals enjoy "judicial immunity" for all statements made in court papers and precludes a defamation lawsuit unless the untrue statements are published outside the ambit of the court papers. Judicial immunity extends to police investigations and reports, too.
The idea behind judicial immunity is that people must feel free to use and participate in the judicial process without fear of being sued for what they say. Though in extreme cases it might be possible to institute an action for malicious prosecution or abuse of process. A criminal case for false police report might be pursued, too, but good luck with that. Police agencies don't like to be put in the middle and often suspect ulterior motives.
So now to the point of the section heading. After the fact, a parent came to me after filing a report of domestic violence/battery with the police and pursing a restraining order. The police investigated and the other parent denied and accused the reporting parent of abuse. The criminal case became a wash and the case rejected against both parents. The parent pursued the restraining order and cross allegations of abuse were made. The court issued mutual restraining orders and now they meet in a police lobby to accomplish the child custody exchange. They are refrained from contacting each other and once daily calls to the child when in the other parents care has ceased.
The moral of the story, and it is not always possible, do what you can to make peace. Think before you act, because steps to gain leverage even when legitimate can backfire and have severe consequences.
I recognize that attorney fees can mount very quickly particularly when he fees run from 200-350 an hour, and beyond the reach of many, however, family law is not a place for the faint of heart, uninformed, naive or idealistic. Most definitely, what you don't know can and will hurt you.
Divorce Law-Grab a Tiger by the Tail
Authored by California attorney Mark Johnson with offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California. http://www.crimelaw.org
Divorce law, particularly when children are involved, can be extremely acrimonious, and it affects me the most on a personal level due in part the lawyer becomes a therapist, too. I generally will not accept a case if the client's goal is to take the other party to task on every infraction. For example, "S/he was a minute late dropping off the kids, I want you to file a contempt of court motion." I made the mistake once of representing a good friend with his case, with a single child support matter taking two years to resolve and the parties were constantly trying to one-up the other.
I recently gave pro bono assistance to a father who I saw in family court representing himself. I met with him several times and gave advice on strategy and likely outcomes and the best way to approach his case. The best information I can convey sometimes is that the legal system is not about right or wrong but whether conduct is lawful and if a court can provide any relief to an aggrieved party. Other mantras I share are: you may never be vindicated, particularly in family court; bad things happen to good people, life isn't always fair, mean people win sometimes; take the high road, live well and put this behind you as soon as possible.
The father I am helping finally heard and most importantly accepted what I had to say including, put down your sword and extend an olive branch of peace. He listened to my advice and let me know he has obtained what he wanted on an informal basis while his next court date is pending. He understands what he must accept and cannot control, as distasteful as it can be. He recently called to tell me he will continue his case on his own because he fears any change in the status quo will cause a contentious reaction and since he is making forward progress he does not want to risk going backwards.
I am so impressed by this gentleman who has already raised two children who are adults now and he is beside himself that he does not have the unfettered access to his two-year-old daughter that he had with his grown kids. He is of modest means and education but I am touched and moved by him each time we meet.
CAREFUL WHAT YOU WISH FOR
A court/judge has no interest in one's personal affairs, of a civil nature, until people cannot resolve a dispute on their own. Divorcing parents are free to make whatever child custody arrangements they choose, for the most part, and the court only gets involved if the parents can't agree.
Before I continue, its important to stress that parents can, and do, say any defamatory and untrue remark about the other with near impunity. Occasionally a judge may penalize a parent for making demonstrably untrue accusations, but this is the exception and not the rule and I have never heard of a judge referring a case to the district attorney for perjury charges despite most legal papers requiring a statement be executed under penalty of perjury. Individuals enjoy "judicial immunity" for all statements made in court papers and precludes a defamation lawsuit unless the untrue statements are published outside the ambit of the court papers. Judicial immunity extends to police investigations and reports, too.
The idea behind judicial immunity is that people must feel free to use and participate in the judicial process without fear of being sued for what they say. Though in extreme cases it might be possible to institute an action for malicious prosecution or abuse of process. A criminal case for false police report might be pursued, too, but good luck with that. Police agencies don't like to be put in the middle and often suspect ulterior motives.
So now to the point of the section heading. After the fact, a parent came to me after filing a report of domestic violence/battery with the police and pursing a restraining order. The police investigated and the other parent denied and accused the reporting parent of abuse. The criminal case became a wash and the case rejected against both parents. The parent pursued the restraining order and cross allegations of abuse were made. The court issued mutual restraining orders and now they meet in a police lobby to accomplish the child custody exchange. They are refrained from contacting each other and once daily calls to the child when in the other parents care has ceased.
The moral of the story, and it is not always possible, do what you can to make peace. Think before you act, because steps to gain leverage even when legitimate can backfire and have severe consequences.
I recognize that attorney fees can mount very quickly particularly when he fees run from 200-350 an hour, and beyond the reach of many, however, family law is not a place for the faint of heart, uninformed, naive or idealistic. Most definitely, what you don't know can and will hurt you.
Thursday, October 28, 2010
Crime Law: Honorable Mentions
Crime Law: Honorable Mentions: "Honorable Mentions As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Comm..."
Honorable Mentions-Updated
Honorable Mentions
As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Commissioner ….” From time-to-time I do come across a judicial officer who appears to have become worn-out and as a result abrupt and impatient. However, this is usually the exception and not the rule and my experience is that most judges are quite worthy of their position and potentially gratuitous tile.
More often-than-not, I come across those in robes who live-up to the title of both honorable and noble. I appear in courts throughout the state and most recently appeared in Alameda Superior court in front of Judge James D. Hunter. He presided over a restraining orderhearing that pitted parents against their children. After nearly a full day of testimony he requested that I along with opposing and co-counsel conference the matter. He read between the lines and saw an outcome, without saying such, that would further divide the family. He demonstrated deference for everyone and encouraged an agreed to resolution that everyone could live with which was accomplished without further harm to everyone.
I Googled Judge Hunter afterwards and was not surprised he has made many decisions that demonstrate courage and the tenets of justice despite going against vocal agendas.
The following is just a small sampling of justices in front of whom I appeared deserving of an honorable mention and several of whom who have a track record of demonstrating the courage of their convictions:
Honorable Commissioner JoAnn Johnson, Ventura Superior Court. She has presided over restraining order hearings and holds the moving party to the required proof standard.
Honorable Commissioner H. Don Christian Pomona Superior Court-Family Law. Patient, judicious and fair.
Honorable Norma Manella, now of the Federal Appellate Court, presided over a civil rights case and encouraged settlement against a reluctant defendant with tremendous resources.
Honorable Magistrate Judge Andrew Wistrich Federal District Court-presided over settlement of a civil rights violation case.
Honorable Judge John D. Molloy Riverside Superior Court. Presided over serious criminal trial. Demonstrated fairness, objectivity and compassion.
Honorable Stephen Wilson Federal District Court-presided over criminal matter and held the government attorneys to a high standard of conduct and admonished the attorneys several times relative to case presentation.
Honorable Judge George Wu Federal Court presided over civil rights trial.
Honorable Richard Walmark Los Angeles Superior Court judge presided over criminal trial and was extremely fair towards the defense.
Honorable William Fahey Los Angeles Superior Court-encouraged settlement in breach of contract case.
Honorable Judge Gregory Pollack San Diego Superior Court-Family Law- Maintains a fair and tempered approach to matters. Allows the parties to express all issues and listens. A person in pro per could expect patience and understanding.
As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Commissioner ….” From time-to-time I do come across a judicial officer who appears to have become worn-out and as a result abrupt and impatient. However, this is usually the exception and not the rule and my experience is that most judges are quite worthy of their position and potentially gratuitous tile.
More often-than-not, I come across those in robes who live-up to the title of both honorable and noble. I appear in courts throughout the state and most recently appeared in Alameda Superior court in front of Judge James D. Hunter. He presided over a restraining orderhearing that pitted parents against their children. After nearly a full day of testimony he requested that I along with opposing and co-counsel conference the matter. He read between the lines and saw an outcome, without saying such, that would further divide the family. He demonstrated deference for everyone and encouraged an agreed to resolution that everyone could live with which was accomplished without further harm to everyone.
I Googled Judge Hunter afterwards and was not surprised he has made many decisions that demonstrate courage and the tenets of justice despite going against vocal agendas.
The following is just a small sampling of justices in front of whom I appeared deserving of an honorable mention and several of whom who have a track record of demonstrating the courage of their convictions:
Honorable Commissioner JoAnn Johnson, Ventura Superior Court. She has presided over restraining order hearings and holds the moving party to the required proof standard.
Honorable Commissioner H. Don Christian Pomona Superior Court-Family Law. Patient, judicious and fair.
Honorable Norma Manella, now of the Federal Appellate Court, presided over a civil rights case and encouraged settlement against a reluctant defendant with tremendous resources.
Honorable Magistrate Judge Andrew Wistrich Federal District Court-presided over settlement of a civil rights violation case.
Honorable Judge John D. Molloy Riverside Superior Court. Presided over serious criminal trial. Demonstrated fairness, objectivity and compassion.
Honorable Stephen Wilson Federal District Court-presided over criminal matter and held the government attorneys to a high standard of conduct and admonished the attorneys several times relative to case presentation.
Honorable Judge George Wu Federal Court presided over civil rights trial.
Honorable Richard Walmark Los Angeles Superior Court judge presided over criminal trial and was extremely fair towards the defense.
Honorable William Fahey Los Angeles Superior Court-encouraged settlement in breach of contract case.
Honorable Judge Gregory Pollack San Diego Superior Court-Family Law- Maintains a fair and tempered approach to matters. Allows the parties to express all issues and listens. A person in pro per could expect patience and understanding.
Thursday, October 21, 2010
Criminal Justice-The Right to an Attorney You Can Afford
I have accepted a case that involves a a violation of probation and a new charge. I am left with the work of my predecessor and a client with a felony conviction and while on probation the subject of a probation search resulting in a violation of probation.
In cases of violations of probation that also have the possibility of a new charge, the prosecution has tremendous leverage as one could defeat the new charge and still have severe consequences related to the violation of probation. The most predominant term of probation is "obey all laws" and obtaining a new charge violates the probation terms even if the new charge is defeated because a far lesser standard of evidence, without benefit of a jury trial, is necessary to violates one's probation. In cases of a felony, a violation could result in the imposition of sentence being rendered from the original case. The sentence in most cases may result in state prison. Hence, the prosecution can maintain a "take-it-or-leave-it" position relative to any offer made that does not include state prison.
Its beyond me why in the present case my client has a felony stemming from a shoplift case with no prior convictions. Regardless, I must use the hand I am dealt and accept the sometimes caustic realities of a justice system that penalizes a person for challenging the merits of a case. While I do in fact believe in our justice system, such a belief doesn't lessen the sting of reality of a cost-benefit scenario of accept a certain outcome versus the potential for incarceration in state prison.
The sad reality is justice is sometimes about what you can afford and what risk you are willing to take. I dont like to gamble and dont know why Vegas calls it gambling as the lost wages is almost a certain outcome in most cases where you leave a matter to chance.
In this present case the prosecutor has offered a very favorable resolution, one I did not expect without trial, and I am grateful and he has not forgotten that statistics are about numbers and not people; however, I am reminded that in many cases, people become numbers and its frightens me
In cases of violations of probation that also have the possibility of a new charge, the prosecution has tremendous leverage as one could defeat the new charge and still have severe consequences related to the violation of probation. The most predominant term of probation is "obey all laws" and obtaining a new charge violates the probation terms even if the new charge is defeated because a far lesser standard of evidence, without benefit of a jury trial, is necessary to violates one's probation. In cases of a felony, a violation could result in the imposition of sentence being rendered from the original case. The sentence in most cases may result in state prison. Hence, the prosecution can maintain a "take-it-or-leave-it" position relative to any offer made that does not include state prison.
Its beyond me why in the present case my client has a felony stemming from a shoplift case with no prior convictions. Regardless, I must use the hand I am dealt and accept the sometimes caustic realities of a justice system that penalizes a person for challenging the merits of a case. While I do in fact believe in our justice system, such a belief doesn't lessen the sting of reality of a cost-benefit scenario of accept a certain outcome versus the potential for incarceration in state prison.
The sad reality is justice is sometimes about what you can afford and what risk you are willing to take. I dont like to gamble and dont know why Vegas calls it gambling as the lost wages is almost a certain outcome in most cases where you leave a matter to chance.
In this present case the prosecutor has offered a very favorable resolution, one I did not expect without trial, and I am grateful and he has not forgotten that statistics are about numbers and not people; however, I am reminded that in many cases, people become numbers and its frightens me
Wednesday, October 13, 2010
Moved in Family Court
Today I had a case in family court, which is usually emotional and many parties represent themselves, often at their own peril.
I was moved emotionally by a father who filed and argued his own motion for modification of child custody involving his two-year-old daughter.
I could tell he was of modest means but he took the time and expense to wear a pressed shirt, tie and nice dress slacks. Many parties come in t-shirts and jeans. He was organized, had copies of documents for the court and other party. Unknown to him there are keys words necessary to argue for a change in custody, namely changed circumstances and best interests of the child, not the parent.
When asked by the court what was the basis for the changed custody the man replied, "I am not working so much now and have more time to devote to my daughter and I miss seeing her and want to tell her in person I love her as often as I can." He also indicated he used to care for her 12 hours a days at the mothers behest and he misses his daughter. My heart sunk when I heard his words that echoed through the courtroom. The court asked him and the mother to take some time in the hallway to try to work out a holiday schedule and the case would be recalled. I resolved the case I was there before his case was concluded. As I departed I told him I was impressed by his presentation and sincerity and offered pro bono services to him should he need them in the future. :-)
I was moved emotionally by a father who filed and argued his own motion for modification of child custody involving his two-year-old daughter.
I could tell he was of modest means but he took the time and expense to wear a pressed shirt, tie and nice dress slacks. Many parties come in t-shirts and jeans. He was organized, had copies of documents for the court and other party. Unknown to him there are keys words necessary to argue for a change in custody, namely changed circumstances and best interests of the child, not the parent.
When asked by the court what was the basis for the changed custody the man replied, "I am not working so much now and have more time to devote to my daughter and I miss seeing her and want to tell her in person I love her as often as I can." He also indicated he used to care for her 12 hours a days at the mothers behest and he misses his daughter. My heart sunk when I heard his words that echoed through the courtroom. The court asked him and the mother to take some time in the hallway to try to work out a holiday schedule and the case would be recalled. I resolved the case I was there before his case was concluded. As I departed I told him I was impressed by his presentation and sincerity and offered pro bono services to him should he need them in the future. :-)
Wednesday, September 29, 2010
The value of an attorney-Giving a voice to one who might not be heard
Although attorneys sometimes get a bad rap and are labeled spin-doctors and tens of thousands of lawyer jokes exist, lawyers bring tremendous value to society and really can be the conduit to resolve conflict. I am honored to be an attorney and to have the opportunity to bring a voice to those in need.
I have not researched the psychology of the following, but I do know from experience, it is one thing to say something about yourself and quite another for someone else to say the same thing about you, with the latter holding more effect and influence than the former, regardless of who is saying it. This may be in part what inspired the classic adage, one who represents him or herself has a fool for a client. The other aspect of this saying is derived in part because legal matters by nature are adversarial and it is quite difficult to look objectively at one’s own emotionally charged imbroglio. Part of my introduction to new clients includes language that my job is not to be a yes person or that their conduct was appropriate if it was not. I serve no value if I do not give an objective analysis of the particular case and likely outcomes.
Attorneys also share the client’s problem, a problem that is sometimes out-of-control and beyond the client’s control. I have had many many clients whose careers require them to be in control and fixing things and they find it difficult when they are no longer in control in a legal matter and their continued effort to control the situation can be detrimental.
I have been near down-and-out in my adult life and pulled myself back up and in the course of events learned a number of valuable lessons I pass on to clients. I embrace Friedrich Nietzsch’s “what doesn’t kill you makes you stronger,” and a better lawyer.
Wednesday, September 22, 2010
Crime Law: Misconceptions about Basic Criminal Constitutional...
Crime Law: Misconceptions about Basic Criminal Constitutional...: "NOTICE: The following is provided for general informational purposes only. The law on this topic changes periodically and may be outdated or..."
Misconceptions about Basic Criminal Constitutional Rights
NOTICE: The following is provided for general informational purposes only. The law on this topic changes periodically and may be outdated or may not apply to your case and specific facts. The information provided on this site should not be relied upon without consultation with a licensed attorney in your state.
Authored by Mark A. Johnson, Esq.
More information about Mark Johnson.
More information on this topic.
Topics Covered Below:
•General search law
•Cooperation with a police investigation
•Searches
•Statements
•DUI detentions and arrests
Law enforcement officials are successful in making arrests and obtaining criminal filings in large part because individuals do not always know his or her rights and misunderstand the law and therefore cooperate with the police in the belief he or she will be exonerated, only to find a crime will be charged. I call this, “guilty with and explanation,” syndrome.
The police are also successful in making arrests and seeking prosecution because individuals lack the courage to assert his or her rights and feel an objection won’t matter. To the extent individuals believe they know their rights, they are often mistaken as to the application of the law. I equate knowing a little about the law is like knowing a little about martial arts, use the knowledge in the wrong way and you can really get hurt.
An objection to unlawful or inappropriate conduct should always be made, although it may be ignored and evidence of the objection may be difficult to prove in court should the officer deny it occurred. Absent one’s protest at the proper time, it cannot be claimed later. The appellate courts have routinely found that allegedly subtle coercive conduct by the police, such has uniform, number of officers, placement of hands on their weapons, and so on, is insufficient to show oppression and coerced consent.
In the event a protest is raised and the officer proceeds with a search or arrest, one must cooperate with the officer at the risk of additional charges. Challenging an officer’s conduct in a hostile manner usually makes matters worse. In such a situation, keep your cool, make notes and take pictures of injuries or property damage and consult an attorney right away.
Should I Cooperate with the Police Investigation?
Overwhelming it is NOT advisable to cooperate with a police investigation without first consulting with an attorney. In some cases, cooperation may be necessary but should be under controlled circumstances.
I cannot tell you the number of times clients misunderstood their rights, cooperated with the police, even presenting evidence on their behalf, only to find they were arrested and charged with a crime. All is not lost in these cases and an experienced attorney can help.
Do I have to Consent to a Search?
The police have no obligation to tell an individual of the right to refuse a request for a consent search if no warrant exception exists.
The US Constitution protects individuals from unreasonable searches and seizures and a warrant giving permission to search is required in cases where a person has an expectation of privacy. In theory, one always has an expectation of privacy. However, the appellate courts have carved out many, many exceptions to when an individual has a diminished expectation of privacy such that a warrant is not required provided certain requirements are satisfied. Based on my experience, the exceptions apply in more situations than they do not.
One of the most significant exceptions is if the person consents to waiving his or her rights. For example, the officer says, “Hey, do you mind if I search you?” The person almost always agrees, and may add “I guess”, or “it doesn’t matter anyways.” As noted earlier, a feeling of coerced consent amounts to consent, even if reluctant.
I do not explore all areas of the exceptions in this article. However, if an officer asks if he or she can search you, your car or property, you are allowed to tell the officer “No!” The search may still take place and your lack of cooperation may prolong the officer’s investigation, even if unwarranted.
Do I have to make a statement?
As a general rule, an individual only has the requirement to truthfully identify oneself if lawfully detained. (Detentions are not covered.)
A statement to police is generally not advisable before consulting with an attorney. As noted elsewhere, individuals often misunderstand the law and a statement becomes guilty with an explanation.
One’s right against self-incrimination and law enforcements’ obligation to tell a person of his rights is often misunderstood. I have lost count of those who tell me the officer did not read them their rights.
Until a person is in custody, which for practical purposes means arrested, and, asked questions of an incriminating nature, police have no affirmative obligation to tell a person a statement cannot be compelled.
The Constitution does not require a person be informed of individual rights, but the Miranda warning, a development of case law, requires the warning under the two conditions described.
A recent US Supreme Court decision found that after what is known as the Miranda warning is given, the police have no affirmative obligation to say anything else and may start questioning the subject. It is up to the individual to tell the police no more questions.
SEE ALSO MY BLOG ON THIS TOPIC.
DUI Arrest
What am I required to do if detained for possible DUI.
Unless an individual is under 21 or on probation for DUI, only after actual arrest, is an individual required to submit to a chemical test (blood, breath or urine analysis for alcohol content) in order to avoid long-term suspension of driving privileges.
If stopped for possible DUI, an individual is required to provide truthful identification, driver’s license and proof of financial responsibility.
An individual is not required to answer questions related to whether he or she has been drinking, how many or where drinks were consumed. An individual is not required to perform what is known as the Field Sobriety Test, tests designed to assess psychomotor skills. Though, some conditions of DUI probation may require performance of the test. My experience is many officers are not completely familiar with the right to refuse the tests. The tests do not have to be performed because the results become a form of self-incrimination.
PAS-Preliminary Alcohol Screening
Officers often carry portable preliminary alcohol screening devices and ask drivers if they care to blow into the device and if they do well, they will be on their way.
The operative question to ask the officer is if you are under arrest. If the answer is “no,” refuse the test unless under 21 or on DUI probation. Again, to keep one’s license, after arrest a chemical sample must be given to avoid long-term driver’s license suspension.
Authored by Mark A. Johnson, Esq.
More information about Mark Johnson.
More information on this topic.
Topics Covered Below:
•General search law
•Cooperation with a police investigation
•Searches
•Statements
•DUI detentions and arrests
Law enforcement officials are successful in making arrests and obtaining criminal filings in large part because individuals do not always know his or her rights and misunderstand the law and therefore cooperate with the police in the belief he or she will be exonerated, only to find a crime will be charged. I call this, “guilty with and explanation,” syndrome.
The police are also successful in making arrests and seeking prosecution because individuals lack the courage to assert his or her rights and feel an objection won’t matter. To the extent individuals believe they know their rights, they are often mistaken as to the application of the law. I equate knowing a little about the law is like knowing a little about martial arts, use the knowledge in the wrong way and you can really get hurt.
An objection to unlawful or inappropriate conduct should always be made, although it may be ignored and evidence of the objection may be difficult to prove in court should the officer deny it occurred. Absent one’s protest at the proper time, it cannot be claimed later. The appellate courts have routinely found that allegedly subtle coercive conduct by the police, such has uniform, number of officers, placement of hands on their weapons, and so on, is insufficient to show oppression and coerced consent.
In the event a protest is raised and the officer proceeds with a search or arrest, one must cooperate with the officer at the risk of additional charges. Challenging an officer’s conduct in a hostile manner usually makes matters worse. In such a situation, keep your cool, make notes and take pictures of injuries or property damage and consult an attorney right away.
Should I Cooperate with the Police Investigation?
Overwhelming it is NOT advisable to cooperate with a police investigation without first consulting with an attorney. In some cases, cooperation may be necessary but should be under controlled circumstances.
I cannot tell you the number of times clients misunderstood their rights, cooperated with the police, even presenting evidence on their behalf, only to find they were arrested and charged with a crime. All is not lost in these cases and an experienced attorney can help.
Do I have to Consent to a Search?
The police have no obligation to tell an individual of the right to refuse a request for a consent search if no warrant exception exists.
The US Constitution protects individuals from unreasonable searches and seizures and a warrant giving permission to search is required in cases where a person has an expectation of privacy. In theory, one always has an expectation of privacy. However, the appellate courts have carved out many, many exceptions to when an individual has a diminished expectation of privacy such that a warrant is not required provided certain requirements are satisfied. Based on my experience, the exceptions apply in more situations than they do not.
One of the most significant exceptions is if the person consents to waiving his or her rights. For example, the officer says, “Hey, do you mind if I search you?” The person almost always agrees, and may add “I guess”, or “it doesn’t matter anyways.” As noted earlier, a feeling of coerced consent amounts to consent, even if reluctant.
I do not explore all areas of the exceptions in this article. However, if an officer asks if he or she can search you, your car or property, you are allowed to tell the officer “No!” The search may still take place and your lack of cooperation may prolong the officer’s investigation, even if unwarranted.
Do I have to make a statement?
As a general rule, an individual only has the requirement to truthfully identify oneself if lawfully detained. (Detentions are not covered.)
A statement to police is generally not advisable before consulting with an attorney. As noted elsewhere, individuals often misunderstand the law and a statement becomes guilty with an explanation.
One’s right against self-incrimination and law enforcements’ obligation to tell a person of his rights is often misunderstood. I have lost count of those who tell me the officer did not read them their rights.
Until a person is in custody, which for practical purposes means arrested, and, asked questions of an incriminating nature, police have no affirmative obligation to tell a person a statement cannot be compelled.
The Constitution does not require a person be informed of individual rights, but the Miranda warning, a development of case law, requires the warning under the two conditions described.
A recent US Supreme Court decision found that after what is known as the Miranda warning is given, the police have no affirmative obligation to say anything else and may start questioning the subject. It is up to the individual to tell the police no more questions.
SEE ALSO MY BLOG ON THIS TOPIC.
DUI Arrest
What am I required to do if detained for possible DUI.
Unless an individual is under 21 or on probation for DUI, only after actual arrest, is an individual required to submit to a chemical test (blood, breath or urine analysis for alcohol content) in order to avoid long-term suspension of driving privileges.
If stopped for possible DUI, an individual is required to provide truthful identification, driver’s license and proof of financial responsibility.
An individual is not required to answer questions related to whether he or she has been drinking, how many or where drinks were consumed. An individual is not required to perform what is known as the Field Sobriety Test, tests designed to assess psychomotor skills. Though, some conditions of DUI probation may require performance of the test. My experience is many officers are not completely familiar with the right to refuse the tests. The tests do not have to be performed because the results become a form of self-incrimination.
PAS-Preliminary Alcohol Screening
Officers often carry portable preliminary alcohol screening devices and ask drivers if they care to blow into the device and if they do well, they will be on their way.
The operative question to ask the officer is if you are under arrest. If the answer is “no,” refuse the test unless under 21 or on DUI probation. Again, to keep one’s license, after arrest a chemical sample must be given to avoid long-term driver’s license suspension.
Monday, September 20, 2010
Crime Law: Domestic Violence Cases Handled Differently than o...
Crime Law: Domestic Violence Cases Handled Differently than o...: "Domestic Violence NOTICE: The following is provided for general informational purposed o..."
Domestic Violence Cases Handled Differently than other Criminal Cases
Domestic Violence
NOTICE: The following is provided for general informational purposed only. The law on this topic changes periodically and may be outdated or may not apply to your case and specific facts. The information provided on this site should not be relied upon without consultation with a licensed attorney in your state.
By Mark Johnson
Law Offices of Mark A. Johnson
Southern California Criminal Defense Attorney
Domestic violence is a serious criminal charge that is charged as a misdemeanor or felony and has serious consequences including in the loss of the privilege to own or possess firearms, arrest, payment of fines, and participation in an anger management course.
I have been successful in obtaining complete dismissal of charges in addition to the reduction of charges in many domestic violence charges.
Domestic violence cases and DUI cases are among the crimes that are not summarily dismissed even when a victim recants his or her allegation(s) of violence.
While domestic violence is classically a crime of violence by men against women, women, too, can be arrested for abuse against a person with whom there is or has been a relationship or child together.
History of Domestic Violence
Until the early 1980s police often dismissed the significance of domestic violence cases and the remedy was often nothing more than encouraging the male suspect to go sleep it off and find another place for the night. This approach led to continued violence in the family with serious and continuing physical and emotional consequences to the victim.
Mandatory Arrests
Since the early 1980s society, the legislature and police have adopted a zero tolerance of abuse. In addition to strong laws that require police to make an arrest where there is visible injury and evidence of a primary aggressor and in cases of violations of restraining orders, extensive victim assistance and counseling is now available.
Whether the Prosecutor files the case as a felony or misdemeanor is based on the seriousness of the case. Severe injuries (including severe cuts and broken bones) will almost always be charged as a felony. No injury or slight injury cases will generally be filed as a misdemeanor. Both prior acts of reported domestic violence and the criminal history of the accused may also influence how the case is filed---usually as a felony.
There are designated Prosecutors and special Domestic Violence Units (DV Units) within the Prosecutor's office that stand ready to aggressively prosecute anyone charged with Domestic Violence.
When the Victim Recants or Drops the Charges
In California you can be arrested and prosecuted for Domestic Violence even if the victim does not want you arrested. In some cases, especially with Spousal Abuse, it is very difficult for the victim to drop charges against the abuser. The Prosecutor can proceed with the criminal case even if the alleged victim decides not to go to court. The Prosecutor is the only one who can drop charges because the victim is merely a witness in a government prosecution.
Wednesday, September 15, 2010
Crime Law: Trial as a Form of Moral Vindication is Seldom Adv...
Crime Law: Trial as a Form of Moral Vindication is Seldom Adv...: "I am a firm believer that failure is a wonderful teacher and it makes us better at what we do and I am glad that I learned valuable lesson..."
Trial as a Form of Moral Vindication is Seldom Advisable
I am a firm believer that failure is a wonderful teacher and it makes us better at what we do and I am glad that I learned valuable lessons early in both my law enforcement and legal careers.
One of the best lessons I learned early in my legal career is that cases don’t always turn out like cases I read in case books in law school, cases that embraced logic, goodwill and insight.
The unfortunate reality is that people can be untruthful, liars cannot always be exposed, bad things happen to good people and innocent people are convicted with some regularity. Although each trial begins with the principles that the accused is presumed innocent and the prosecution has the burden to prove its case, the dynamics of human nature come into play and the defense begins its case in the hole.
While I have tremendous success taking cases to trial, there is always risk, and as noted in a previous article, one must always weigh reasonable options. Taking a case to trial should not be based on a hope of moral vindication because moral vindication can be costly and often elusive, even under the best circumstances.
Today, at the brink of trial and after rejecting several variations of the same offer by the prosecution, the prosecution gave an offer that could not be rejected. My client was charged with a battery, with possible consequences of 6 months in jail, a restraining order, probation, loss of privilege to possess firearms, participation in an anger management course and fines. The prosecution offered a charge of 415, known as creating a disturbance, with no other conditions and no opposition to expunging the plea after 12 months. He accepted the plea at the risk a jury might be sympathetic and believe an emotional teenager over him. It was a good outcome with no long-term consequences.
In case you are wondering, it is very difficult to recover attorney fees and to be fully compensated or made whole in cases where an individual is exonerated in court by a not guilty verdict. As such, my usual advice to people is to get the matter behind them, let go of any anger and live well. Future success really is the sweetest form of vindication.
One of the best lessons I learned early in my legal career is that cases don’t always turn out like cases I read in case books in law school, cases that embraced logic, goodwill and insight.
The unfortunate reality is that people can be untruthful, liars cannot always be exposed, bad things happen to good people and innocent people are convicted with some regularity. Although each trial begins with the principles that the accused is presumed innocent and the prosecution has the burden to prove its case, the dynamics of human nature come into play and the defense begins its case in the hole.
While I have tremendous success taking cases to trial, there is always risk, and as noted in a previous article, one must always weigh reasonable options. Taking a case to trial should not be based on a hope of moral vindication because moral vindication can be costly and often elusive, even under the best circumstances.
Today, at the brink of trial and after rejecting several variations of the same offer by the prosecution, the prosecution gave an offer that could not be rejected. My client was charged with a battery, with possible consequences of 6 months in jail, a restraining order, probation, loss of privilege to possess firearms, participation in an anger management course and fines. The prosecution offered a charge of 415, known as creating a disturbance, with no other conditions and no opposition to expunging the plea after 12 months. He accepted the plea at the risk a jury might be sympathetic and believe an emotional teenager over him. It was a good outcome with no long-term consequences.
In case you are wondering, it is very difficult to recover attorney fees and to be fully compensated or made whole in cases where an individual is exonerated in court by a not guilty verdict. As such, my usual advice to people is to get the matter behind them, let go of any anger and live well. Future success really is the sweetest form of vindication.
Saturday, September 11, 2010
Excellent Result For Client
This week was a good week for clients.
In addition to defeating a restraining order, I was able to resolve a case where my client was originally charged with attempt robbery, a charge classified as a serious and violent felony, also known as a strike crime. The consequences would have been tremendous in this case. I was able to obtain a reduction of the charge to 415 (disturbing the peace charge) as an infraction. This level of charge is de minimis and of no serious consequence to my client.
I was fortunate in this case it was assigned to a reasonable prosecutor and a judge who encouraged a flexible resolution.
In addition to defeating a restraining order, I was able to resolve a case where my client was originally charged with attempt robbery, a charge classified as a serious and violent felony, also known as a strike crime. The consequences would have been tremendous in this case. I was able to obtain a reduction of the charge to 415 (disturbing the peace charge) as an infraction. This level of charge is de minimis and of no serious consequence to my client.
I was fortunate in this case it was assigned to a reasonable prosecutor and a judge who encouraged a flexible resolution.
Thursday, September 9, 2010
Crime Law: Old Case Continues to Get New Attention
Crime Law: Old Case Continues to Get New Attention: " I am surprised that an old fact pattern, though new criminal case, gets continuing attention. See latest story: http://www.pvnews.com/arti..."
Old Case Continues to Get New Attention
I am surprised that an old fact pattern, though new criminal case, gets continuing attention.
See latest story: http://www.pvnews.com/articles/2010/09/09/local_news/news2.txt
See latest story: http://www.pvnews.com/articles/2010/09/09/local_news/news2.txt
Crime Law: The Art of Negotiation-Taking the Risk Out of Liti...
Crime Law: The Art of Negotiation-Taking the Risk Out of Liti...: "Today I was successful in having a restraining order dismissed without future consequence to my client. This dismissal was obtained through..."
The Art of Negotiation-Taking the Risk Out of Litigation
Today I was successful in having a restraining order dismissed without future consequence to my client. This dismissal was obtained through negotiation and showing what both sides had to gain if the matter went forward on a contested basis. Although I have defeated the issuance of many restraining orders on a contested basis, bargained for justice is almost always the best route.
Although I felt confident I had the evidence to refute allegations against my client and impeachment against the petitioner, there is a always risk that a case can go the wrong way even with favorable facts and evidence.
Based on my experience, there is truth to don't tell me the law, tell me about the judge. Moving a case forward based on your or the client's ego is never a wise course to take if there are alternatives. This is particularly true in family law cases.
Today's case was particularly sad as it involved the emotion of two families torn apart by an affair. This case was unique as it was driven by the daughter of one of the affair participants. The proceedings were really a way for the child to get closure and for her voice to be heard. In the end everyone said their piece, some in tears, and parted with promises to do no harm to the other.
Although I felt confident I had the evidence to refute allegations against my client and impeachment against the petitioner, there is a always risk that a case can go the wrong way even with favorable facts and evidence.
Based on my experience, there is truth to don't tell me the law, tell me about the judge. Moving a case forward based on your or the client's ego is never a wise course to take if there are alternatives. This is particularly true in family law cases.
Today's case was particularly sad as it involved the emotion of two families torn apart by an affair. This case was unique as it was driven by the daughter of one of the affair participants. The proceedings were really a way for the child to get closure and for her voice to be heard. In the end everyone said their piece, some in tears, and parted with promises to do no harm to the other.
Wednesday, September 8, 2010
Fifth Amendment Admonition Erodes
Having begun my career in law enforcement, I gasped at the history of US Supreme Court decisions in the 1960s that hampered police effectiveness; however, now as a defender of liberty and justice, I watch as landmark decisions favorable to citizens and my clients are challenged.
Last summer I was surprised that the US Supreme Court ruled that a warrantless search of a vehicle unconstitutional once the sole occupant was handcuffed and unable to access the vehicle with certain exceptions of course, but yet recently found police had no affirmative obligation to tell an interrogated suspect he had the right not to talk to officers after the classic Miranda Warning was given.
Regarding last summer's ruling, I disagreed with the logic in the decision and although glad of the restriction I rationalize such a search under many of the existing warrantless search exceptions.
The current latitude now afforded officers in interrogations to in essence take advantage of a person already fraught with anxiety confounds me. Experience tells me that the general public already grossly misunderstand their individual rights under the Constitution and the erosion of an essential warning developed over time (though admittedly no basis or requirement under the Constitution) seems unjust to me.
See: http://www.law.cornell.edu/supct/html/07-542.ZO.html
See: http://www.thefreelibrary.com/MIRANDA+LAW+ERODED+IN+CALIFORNIA+CASE+FIFTH+AMENDMENT+RIGHTS+WEAKENED...-a0102865452
Last summer I was surprised that the US Supreme Court ruled that a warrantless search of a vehicle unconstitutional once the sole occupant was handcuffed and unable to access the vehicle with certain exceptions of course, but yet recently found police had no affirmative obligation to tell an interrogated suspect he had the right not to talk to officers after the classic Miranda Warning was given.
Regarding last summer's ruling, I disagreed with the logic in the decision and although glad of the restriction I rationalize such a search under many of the existing warrantless search exceptions.
The current latitude now afforded officers in interrogations to in essence take advantage of a person already fraught with anxiety confounds me. Experience tells me that the general public already grossly misunderstand their individual rights under the Constitution and the erosion of an essential warning developed over time (though admittedly no basis or requirement under the Constitution) seems unjust to me.
See: http://www.law.cornell.edu/supct/html/07-542.ZO.html
See: http://www.thefreelibrary.com/MIRANDA+LAW+ERODED+IN+CALIFORNIA+CASE+FIFTH+AMENDMENT+RIGHTS+WEAKENED...-a0102865452
New Criminal Case Brings Suprise Media Attention
A new case to the office draws surprise attention despite a two year lapse since the events giving rise to the charges.
Link
http://www.dailybreeze.com/news/ci_15972439
Link
http://www.dailybreeze.com/news/ci_15972439
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