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!

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.

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

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.

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.

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.

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.

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

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. :-)

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.

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..."