Friday, January 15, 2016

What are we going to do about cash bail? It is unfair and discriminatory.

Monetary bonds are a disgrace in our criminal justice system. 

Here's a community taking action: http://chicagoreporter.com/a-community-solution-to-cash-bail/

Sunday, November 1, 2015

More Stinging News Regarding Stingray Devices

#Stingrays can apparently record calls as well? According to documents obtained by the ACLU, indeed they can:

http://www.wired.com/2015/10/stingray-government-spy-tools-can-record-calls-new-documents-confirm/

This is the world we live in! 

In better news, Jayne Law Group has some great case results.

Wednesday, September 9, 2015

California Supreme Court Rules that Conduct Alone is Insufficient to Support Finding of Ties between Subsets of Criminal Street Gang


The California Supreme Court held last month in People v. Prunty, S210234, that when the prosecution seeks to prove the street gang enhancement (Pen. Code, sec. 186.22(b))by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang’s alleged subsets, it must prove a connection between the gang and the subsets. This is a good decision when dealing with gang subsets and the STEP Act and sets forth what the prosecution must show to establish a defendant acted for the benefit of a gang.  

The case is at: 
http://www.courts.ca.gov/opinions/documents/S210234.PDF

Monday, August 31, 2015

Criminal Justice Reform: A New Hope?

Introduction

The public, legislators, prison officials, judges, and historians alike are all waking up to the fact that the United States’ criminal justice system is clearly in dire need of reform. And finally, it appears that the words criminal justice + reform are gaining momentum to reveal that the status quo of an inefficient and expensive system is unacceptable in this country.

As it stands, with about 5% of the world’s total population, the U.S. houses almost a quarter of the world’s total prisoners, which is equivalent to 2.23 million behind bars, four times as many incarcerated than four decades ago. However, the difference in incarceration rates is not due to the U.S. having a considerably higher rate of crime in comparison to the rest of the world. In the 1980s, incarceration rates began their sharp rise, coinciding with the advent of the war on drugs, mandatory minimum sentences, and three-strikes laws. 

Today, one can find numerous federal prisoners serving life sentences without parole for nonviolent offenses, resulting in a de facto death sentence. The United States’ reliance on excessive punitive sentencing over the past three decades has destroyed individual lives, families, and communities as well as put an enormous strain on federal spending and prison population capacities. The criminal justice system has blatantly forgotten that “how much time prisoners spend behind bars is no less important than that of whether only the guilty are being locked up.” (Honorable Alex Kozinski, Criminal Law 2.0.

However, major changes are finally in motion to address this costly and outdated federal sentencing and corrections system. For example, on June 25, 2015, Representatives Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA), backed by the American Civil Liberties Union and Koch Industries, unveiled the bipartisan Safe, Accountable, Fair and Effective (SAFE) Justice Act (H.R. 2944). Arguably one of the most significant bills on the table, its provisions would reserve drug trafficking life sentences and other major penalties for high-level drug bosses rather than low-level dealers, provide sentencing flexibility to judges, and focus federal resources away from drug possession enforcement. The act is aimed at addressing over-criminalization in the federal criminal justice system and to bring it into greater alignment with state-level sentencing. The SAFE Justice Act would also create specialized courts for drug crimes and the mentally ill, and put a much greater emphasis on prison programming. Just weeks later on July 16, 2015, President Obama became first sitting president to tour a federal prison, meeting with six El Reno inmates, in their medium-security Oklahoma Federal Prison. With numerous politicians eager to leave their mark on historical reform, what was once a bleak outlook for those convicted of federal drug offenses, now potentially face a more just legal system.

History of Legislation

The current prison crisis is the result of two important legislative and historical events leading up to their implementation. The first was the Comprehensive Crime Control Act of 1984, signed into law by President Ronald Reagan, the first comprehensive revision to the U.S. criminal code since the early 1900s. Among its integral provisions was the Sentencing Reform Act, which established the United States Sentencing Commission, an independent agency of the judicial branch responsible for articulating Federal Sentencing Guidelines for all U.S. federal courts. The Guidelines determine sentences based on two primarily factors: the conduct associated with the offense and the offender’s criminal history. The Guidelines rely on a rigid sentencing table that is broken into four sentencing zones. These Guidelines were modified in 2010 as part of the Fair Sentencing Act signed into law by President Obama. The Fair Sentencing Act was an effort to reduce the disparity between the amount of crack cocaine and powder cocaine possessed by an individual needed to trigger certain U.S. federal criminal penalties, from a 100:1 weight ratio to an 18:1 weight ratio and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine, among other provisions.
           
The second, and most influential act, was the Violent Crime Control and Law Enforcement Act of 1994 (“1994 Act”), representing the largest crime bill in the history of the United States. Driven into law by public sentiment following the 101 California Street shootings, the 1993 Waco siege, and other high-profile instances of violent crime, the 1994 Act expanded federal law in several ways. First, the Act created a variety of new crimes relating to immigration law, hate crimes, sex crimes, and gang-related crime, simultaneously increasing penalties for many of these newly defined crimes. The 1994 Act also increased the number of federal crimes punishable by death and established procedures whereby the death penalty might be enforced. It contained a “three strikes” provision requiring a sentence of life imprisonment for violent three-time federal offenders. Finally, the Act imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. (H.R.3355 - Violent Crime Control and Law Enforcement Act of 1994 - 103rd Congress (1993-1994))

Impact

As a result of these two Acts and other measures, the U.S. prison and jail population has reached an all-time high, with over 2.23 million individuals behind bars, a 795% increase and the highest rate of prisoners per population in the world. The number of people on probation and parole has also doubled. (International Centre for Prison Studies.) 

In addition to changes in mandatory sentencing, crimes themselves have been wholly created where there previously were none. Between 1980 and 2013, the federal criminal code added approximately 2,000 additional crimes, often written in vague and sweeping language. The result has been a legal environment that tolerates over-criminalization and often disproportionately lengthy sentences. Since the passage of the above legislation, courts have routinely sentenced defendants to severe prison terms which arguably do not fit to the crime. For example, an individual convicted of burglary in the U.S. serves on average of 16 months in prison, compared to five months in Canada and seven months in England. Similar discrepancies exist for assault charges, with an average sentence of 60 months in the US compared to just less than 20 months in England. (U.S. Prison Population Dwarfs That of Other Nations, N.Y. Times April 23,
2008)
           
Not only has this resulted in strained prison capacities, but incarceration is enormously expensive for taxpayers as well. The average cost of housing a single prisoner for one year is approximately $30,000, with longer terms, such as a 20 year sentence, averaging around $600,000.  Federal spending on prisons has soared from $970 million to more than $6.7 billion in the past three decades, mostly due to the mandatory sentencing of nonviolent, low-level drug offenders. A closer look at which communities are most heavily impacted by mass incarceration reveals stark racial and ethnic disparities in U.S. incarceration rates in every region of the country. African Americans have a 1 in 3 chance of spending some time in jail, those of Latino decent have a 1 in 6 chance, while those of Caucasian decent have a 1 in 17 chance. (E. Ann Carson, Ph.D., Bureau of Justice Statistics.)  Eliminating the racial disparities inherent to the U.S. criminal justice policies and practices must also be part of criminal justice reform.

Conclusion
           
The current administration, with bipartisan support, appears to be embracing criminal justice reform. On July 13, 2015, the President commuted the sentences of 46 nonviolent drug offenders, marking the most commutations a president has issued on a single day in the last four decades. Also, the Clemency Project 2014 is assisting prisoners in seeking commutation and is eligible to those who have already served 10 years, have demonstrated good conduct, have no history of violence prior to or during their term of imprisonment, among other criteria. See https://www.clemencyproject2014.org/

The U.S. Sentencing Commission also held a public meeting on August 7, 2015 to discuss an amendment to the Sentencing Guidelines that would eliminate the residual clause from the Career Offender guideline and address other issues that will take priority in the 2015-2016 amendment cycle. And the “Drugs Minus Two” reform (an Act passed in April 2014) has enabled thousands of prisoners to reduce their prison sentences by petitioning the court the past year. 

In a town where there is rarely a gathering of bipartisan support, it appears that criminal justice reform may be the one issue uniting the nation’s capital. Even last month’s Bipartisan Summit on Fair Justice drew politicians from all sides of the aisle. The goals of criminal justice reform include fair and appropriate treatment of juveniles, reforming mandatory minimum sentences, expanding alternatives to incarceration while reducing recidivism, and enabling prisons to offer programs that allow smoother transitions back into society. Undoubtedly, it will take years to transform a broken criminal justice system, but it appears that the tipping point for reform has finally been reached and it’s a start, as the public, press, and lawmakers are waking up to the long overdue and necessary changes. 

Wednesday, April 1, 2015

Fourth Amendment Update

Fourth Amendment Update: US Supreme Court Rules GPS Trackers are a Form of Search & Seizure: http://www.theatlantic.com/…/supreme-court-if-youre…/389114/

Thursday, February 26, 2015

Latest Developments in Insider Trading


In a landmark decision, the United States Court of Appeals for the Second Circuit, an influential court in securities litigation, provided clarity on the elements required to hold a tippee liable for insider trading. The decision by the Second Circuit on December 10, 2014 to reverse the charges, with prejudice, in United States v. Todd Newman, Anthony Chiasson sets a new definition for who can be held liable for insider trading. Before Newman, insider trading was broadly defined. This decision narrows the scope. The Government now must tangibly prove whether an investment professional knew that information had been disclosed in breach of a fiduciary duty in exchange for a personal benefit. The Government’s impending efforts to combat and thwart those tippees who are alleged to be involved in insider trading activities now must first determine, and later prove, whether the material nonpublic information was obtained from a friend with benefits.

Background

Todd Newman and Anthony Chiasson, hedge-fund portfolio managers, were accused of involvement in the exchange and disclosure of material non-public information. The Government in the 2012 six-week trial presented evidence that company insiders at Dell and NVIDIA had disclosed non-public earnings numbers with a group of financial analysts, who then allegedly passed the inside information on to their portfolio managers, which included Todd Newman and Anthony Chaisson. Those portfolio managers subsequently executed equity trades in Dell and NVIDIA, earning millions of dollars in profits. As a result of these trades, Todd Newman and Anthony Chiasson were convicted on December 17, 2012 of securities fraud in violation of sections 10(b) and 32 of the Securities Exchange Act of 1934, Securities and Exchange Commission (SEC) Rules 10(b)(5) and 10(b)(5)(2), and conspiracy to commit securities fraud in violation of 18 U.S.C. § 371. 

The Second Circuit, however, overturned the convictions on December 10, 2014. The Court ruled that in order to convict these portfolio managers, or tippees, there had to be proof beyond a reasonable doubt that an insider breached his or her fiduciary duty to shareholders by disclosing material nonpublic information in exchange for a “personal benefit.”  Providing further clarification, the Court stated that “personal benefit” must be “objective, consequential, and represent[ing] at least a potential gain of pecuniary or similarly valuable nature” eliminating the mere “fact of a friendship, particularly of a casual or social nature.” Specifically, the Court of Appeals held that the government must prove each of the following elements beyond a reasonable doubt to convict a tippee of insider trading: “that (1) the corporate insider was entrusted with a fiduciary duty; (2) the corporate insider breached his fiduciary duty by (a) disclosing confidential information to a tippee (b) in exchange for a personal benefit; (3) the tippee knew of the tipper’s breach, that is, he knew the information was confidential and divulged for personal benefit; and (4) the tippee still used that information to trade in a security or tip another individual for personal benefit.”

Newman and Chiasson, as it stood, were several steps removed from the corporate insiders who initially disclosed the information. Thus, the Government failed to present evidence that either defendant was aware of the source of the inside information or that they received a personal benefit, as defined by the Second Circuit.

Prior Rulings and Historical Background

Three Supreme Court decisions, as well as recent SEC rules, precisely influenced and shaped insider trading law and the Newman decision. The first was Chiarella v. United States, which gave the “classical theory” of insider trading liability, limiting the scope of liability to corporate insiders or those who work directly for a company, such as its lawyers and investment bankers. Defendants only violate that law if they violate their duty of trust and confidence to the company whose shares were traded by misusing information material non-public information. Expanding the definitions of liability and giving us the “misappropriation theory,” the Court in United States v. O’Hagan ruled anyone who obtains information from their employer and trades the information in any stock, can be found guilty of insider trading, so long as they have been entrusted with the information in confidence. Finally, the Supreme Court affirmed in its ruling in Dirks v. Securities Exchange Commission that a tippee holds a fiduciary duty to the shareholders. That duty arises “when a insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know there has been a breach.” Dirks, 463 U.S. at 660. The Courts are left with the discretion to determine whether the tipper received a personal benefit to determine if the tipper breached a fiduciary duty, and if the tippee knew of this breach of fiduciary duty.

The SEC also adopted three new rules in October of 2000: 1.) Regulation Fair Disclosure addressing the selective disclosure by issuers of material nonpublic information; 2.) Rule 10(b)(5)(1) regarding when insider trading liability arises in connection with a trader’s “use” or “knowing possession” of material nonpublic information; and most importantly in Newman, 3.) Rule 10(b)(5)(2), when the breach of a family or other non-business relationship may give rise to liability under the misappropriation theory of insider trading. These were important in the effort to help set the standard for those who could be found guilty of illegal insider trading.

The Court ruled in United States v. Todd Newman, Anthony Chiasson, based on the holding in Dirks, that “the exchange of confidential information for personal benefit is not separate from an insider’s fiduciary breach; it is the fiduciary breach that triggers liability for securities fraud under Rule 10(b)(5). For purposes of insider trading liability, the insider’s disclosure of confidential information, standing alone, is not a breach.” 

Conclusion

This redefining of what terms the Government can hold tippees liable for illegal insider trading will have a vast impact on many of the recent prosecutions which have been brought against investment professions removed from the source of the information. Though only time will tell the magnitude this decision will have on prosecuting those involved in securities fraud, the decision could have an immediate impact on both the Department of Justice and the Securities and Exchange Commission (SEC). Last month in California, however, a federal judge denied a motion to dismiss insider trading charges based on Newman. James Mazzo, the CEO and Chairman of the Board of a medical device company, was accused of having provided material non-public information about potential mergers to a friend, former Baltimore Orioles player Doug DeCinces, who traded on the information. Central District Court Judge Andrew Guilford denied the motion to dismiss.

On the other hand, following Newman, four guilty pleas in the Southern District of New York were vacated in United States v. Durant. In that case, the judge ruled that the Newman decision and its heightened standard for tippee liability applies to insider trading cases based on misappropriation cases in addition to cases based on the classical theory of insider trading. Because the defendants, in their guilty pleas, had not admitted to knowledge that the tipper received a personal benefit, the court vacated the pleas.

We will likely continue to see in the near future the Courts with pending litigation involving illegal insider trading reevaluate whether an investment professional knew that information had been disclosed in breach of a fiduciary duty in exchange for a personal benefit, and of course, prosecutors reconsider whether to bring charges against certain tippees.

Though only time can fully reveal the impacts the Newman holding will have on the securities trade industry, the grounds are already shifting. Most likely in future litigation, the Government will have more difficultly convicting those removed from the source of the information unless there is proof of knowledge of a specific personal benefit to the tipper. If the tippees, those individuals such as Todd Newman and Anthony Chiasson, had no prior knowledge of the personal benefit gained from the leaked information, then similarly situated tippees should not be held to a standard to act solely in the shareholder’s interest.  Newman narrowed the scope of liability for those who can be held accountable for insider trading, making it more difficult to convict those without proof that the tippee was involved in a situation of friends with benefits.


Monday, December 8, 2014

California Court of Appeal Strikes Down Law Requiring DNA Collection from Anyone Arrested for a Felony

The California First District Court of Appeal last week struck down a state law that required the collection of DNA from anyone arrested on suspicion of committing a felony. The Court concluded that the state Constitution’s ban on unreasonable search and seizure prohibited the DNA collection (by use of a cheek swab). The law was initially approved by voters in 2004 and allows for the collection of DNA upon an arrest - even before criminal charges are filed. The ruling could still be appealed and therefore, it is unclear whether law enforcement will immediately stop the collection of DNA from anyone arrested for a felony, particularly since the Court did not issue an immediate order stopping police.  The court's ruling also recognizes that DNA is fundamentally different and more invasive than the collection of fingerprints.

Thursday, October 2, 2014

New Holder Memo on Drug Sentencing and Policies

September 24, 2014 Holder Memo on § 851 Enhancements in Plea Negotiations. Notable lines: "An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty." Holder is making sure his message on drug policies is heard loud & clear before he departs!  
http://sentencing.typepad.com/files/ag-letter-regarding-enhancements-in-plea-negotiations.pdf

Friday, September 26, 2014

The New DOJ Policy for Recording Federal Custodial Interrogations

On July 11, 2014 a new federal policy governing custodial interrogations by federal law enforcement agencies went into effect. That policy, documented in a May 12, 2014 Memo from Deputy Attorney General James M. Cole and supplemented by a videotaped statement by U.S. Attorney Eric Holder (apparently setting the example) established a presumption that the following agencies will electronically record statements made by individuals in their custody in specified circumstances: the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS).

The new policy “strongly encourages” the use of video recording in circumstances where an individual is in a place of detention following arrest, but prior to an initial appearance before a judicial officer. Interviews in non-custodial settings are excluded from the presumption. The policy describes “places of detention” fairly broadly, but excludes the necessity to record while a person is waiting for transportation, or is en route, to a place of detention.

Each agency is directed to establish its own policies governing the placement, maintenance and upkeep of such equipment, as well as policies for preservation and transfer of recorded content. Notably, this new standard replaces many of these agencies’ current practices, in which agents interview suspects without recording them, take handwritten notes, and then produce a formal report “summarizing” the conversation. Clearly, the Department of Justice has recognized the flaws in criminal prosecutions and allegations of police misconduct which lack recorded interrogations.

"Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody," Holder said in a video message announcing the change. "It will allow us to document that detained individuals are afforded their constitutionally-protected rights." He added that it would provide federal law enforcement officials with a "backstop" so that "they have clear and indisputable records of important statements and confessions made by individuals who have been detained."

The Cole memo also notes that the recording may be overt or covert and to the extent the suspect does not wish to be recorded, then a recording need not take place (though the refusal must be documented). 

Other exceptions include a “Public Safety and National Security Exception” wherein there is no recording presumption when the questioning is done for the purpose of gathering public safety information or when it is undertaken to gather national security-related intelligence.  

Finally, the directive leaves open an exception for non-recording in circumstances where it is not reasonably practical or outside of the United States.

While this policy applies exclusively to the federal agencies noted herein, 21 states and the District of Columbia require recording statewide of custodial questioning in a variety of criminal investigations, as depicted in the table below:

STATE
YEAR
SOURCE
COVERAGE
Alaska
1985
Court ruling
All crimes
Arkansas
2012
Court rule
All crimes
California 
2013
Statute
Juveniles - homicide
Connecticut
2011
Statute
Specified felonies
D.C.
2006
Statute
Crimes of violence
Hawaii
Various
Dept. policies
Serious crimes
Illinois
2003
2013
Statutes
Homicides
Specified felonies
Indiana
2009
Court rule
Felonies
Maine
2007
Statute
Serious Crimes
Maryland
2008
Statute
Specified felonies
Michigan
2012
Statute
Specified felonies
Minnesota
1994
Court ruling
All crimes
Missouri
2009
Statute
Specified felonies
Montana
2009
Statute
All crimes
Nebraska
2008
Statute
Specified felonies
New Jersey
2005
Court rule
All crimes
New Mexico
2006
Statute
Felonies
N. Carolina
2007
2011
Statutes
Specified felonies
Juveniles – all crimes
Oregon
2010
Statute
Specified felonies
Rhode Island
2013
Police Chiefs Assn
Capital offense crimes
Vermont
2014
Statute
Homicides, sexual assaults
Wisconsin
2005
Statutes
Felonies
Juveniles- all crimes

Hopefully, this reform of federal agency custodial interrogations will inspire other states and state agencies to adopt similar policies and laws. Justice is better served by all with greater transparency.


Friday, August 15, 2014

An Anonymous Phone Call Can Give Police Reasonable Suspicion to Detain a Person

In United States v. Edwards, 2014 WL 3747130 (9th Cir. July 31, 2014) the United States Court of Appeals for the Ninth Circuit addressed two issues: the first one was whether the stop of Edwards was only an investigatory stop or a de facto arrest and the second was whether there was enough reasonable suspicion for the police to stop and detain Edwards. The facts of the case are as follows: an anonymous call to the Inglewood Police Dept said that there was a young black male shooting at passing cars and entering the “Penny” liquor store. The anonymous 911 caller described the suspect as being 5’7’’ to 5’9’’ and wearing a black jacket and khaki pants. Police arrived at the described location and 75 feet away from the liquor store they saw Edwards who was 5’11’’ wearing a black long-sleeved shirt and grey pants. The police held Edwards at gunpoint and handcuffed him. They conducted a pat search of his person and discovered a .22 caliber handgun. The caller did not want to participate further in the investigation and wished to stay anonymous. Edwards pled guilty (a conditional plea, which allowed him to appeal) to a felon inpossession of a firearm. Edwards appealed his guilty plea on the grounds that the police action amounted to a de facto arrest for which they had no probable cause and that the anonymous call did not give the police enough reasonable suspicion to detain him. Edwards disputed that the anonymous 911 call provided the officers with sufficient information to give them reasonable suspicion to support the investigatory stop in the first place.

Arrest or Detention at Time of Pat Search
A de facto arrest is where a detention turns into an arrest based on law enforcement’s actions that are more intrusive than necessary for an investigative stop. The court used the “totality of the circumstances” test to determine that Edwards’ detention at the time of the pat search did not amount to a de facto arrest. The Court previously “permitted the use of intrusive means to effect a stop where the police have information that the suspect is currently armed or the stop closely follows a violent crime. Under such circumstances, holding a suspect at gunpoint, requiring him to go to his knees or lie down on the ground, and/or handcuffing him will not amount to an arrest." FN1

Reasonable Suspicion for a Detention
The United States Supreme Court previously held that an anonymous tip must “exhibit sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." FN2. The Supreme Court stated that an anonymous tip has sufficient indicia of reliability when: (FN3)
(1) The caller claimed eyewitness knowledge of the alleged dangerous activity, lending “significant support to the tip's reliability”
(2) The caller made a statement about an event “soon after perceiving that event,” which is “especially trustworthy,”
(3) The caller used 911, which “has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity,
(4) The caller created reasonable suspicion of an ongoing and dangerous crime rather than “an isolated episode of past recklessness.”

Based on this analysis, Ninth Circuit determined the anonymous call in Edwards’ case passed the four-part test. Therefore, the Court concluded that the police did have enough reasonable suspicion to stop and detain Mr. Edwards and affirmed his conviction, holding that “the officers properly conducted an investigatory stop and had reasonable suspicion to do so.” It will be interesting to see how non-emergency situation cases play out in light of this ruling.

For assistance with motions to suppress, contact Jayne Law Group.




1. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001)
 2. Alabama v. White, 496 U.S. 325, 326–27, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
 3. Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)

Thursday, July 31, 2014

Guest Blog: Why You Need to Do Your Research Prior to Hiring an Appellate Attorney

Written By: Paul J. Wallin, Senior Partner of Wallin & Klarich, A Law Corporation.

If you have been convicted of a felony crime, you have options available to you. A guilty verdict does not necessarily have to be the final judgment. Many criminal convictions may be reversed or modified on appeal.
I cannot stress enough the importance of conducting meticulous research before selecting an attorney to represent you.  Regarding trial lawyers, attorney Julia Jayne handles all of her cases fairly and ethically, she is also a tenacious fighter who will work vigorously to make certain that her clients obtain the justice they desire and deserve.
If you were found guilty of felony charges because you were unable to retain a trial attorney of Ms. Jayne’s caliber, you may still have a second chance through an appeal. However, this time you must ensure that you conduct the adequate research necessary to select the right lawyer to handle your appeal.
An attorney who is experienced in criminal appeals will put forth a strong argument that mistakes or misconduct occurred at your trial. If he or she is successful in doing so, you may be able to have your guilty conviction overturned and receive a new trial.  
In some cases, you may not even face retrial if the District Attorney’s office does not wish to prosecute the matter again.
1.      Consequences of a Felony Conviction
A felony conviction will remain on your permanent record unless it is successfully challenged or expunged. You could face difficulty in the future when applying for a job, state licensure, public benefits or a residential lease. You also lose your right to own a firearm. The following are things you must consider if you want to successfully appeal your criminal conviction:
2.      You have a limited amount of time to file your notice of appeal.
A defendant interested in appealing a felony conviction has only 60 days from the time he or she was sentenced to timely file a notice of appeal.  Exceptions to this timetable are rarely permitted. Because your window of opportunity is narrow, you should not take any chances by trying to accomplish this on your own.
Additionally, almost every court jurisdiction has its own set of rules, called the “local rules.” These rules govern the procedures that must be followed. However, the rules may vary depending on the district within the Court of Appeal. There are six districts in California, some of which are divided into even smaller divisions.
An attorney who has extensive experience with handling appeals will make certain to follow the local rules and can illuminate any errors that may have occurred during your trial.
3.       Your Attorney Must Possess Strong Oral and Written Persuasive Skills
Remember that an appeal is a review of your trial, not a new trial. Your attorney cannot introduce new evidence on appeal. He or she must be able to convince a three-judge panel that either the evidence used against you at trial was insufficient to sustain a guilty verdict, or that legal errors were committed that led to an improper ruling, conviction or sentence.
Your chances of winning your appeal increase if you hire an attorney who can persuasively argue how you would have benefitted from a different outcome at your trial if these mistakes had not been made.
If you are dissatisfied with the result in your case, you need a lawyer who is familiar with appellate level review, who understands where errors can occur at trial, and one who knows how to best challenge those errors at the appellate level.
Trial lawyers are required to persuade juries made up of ordinary citizens, which often involves making emotionally-driven arguments. An appellate lawyer isn’t permitted to try your case again in front of a jury.
If you have been Convicted of a Felony Crime, Don’t Wait Until it is Too Late
A felony conviction, albeit devastating, is not the end of the road. If you or a loved one is convicted of a felony crime, you must act quickly in determining the best option for that individual.  If you conduct thorough research, the chances of you hiring an effective attorney and successfully appealing your criminal conviction increase greatly.



Sources:
Daniel E. Hall, J.D., Ed.D.: Criminal Law and Procedure, Sixth Edition
Deborah E. Bouchoux, Georgetown University: Legal Research and Writing, Sixth Edition
Wallin & Klarich, A Law Corporation: “Common Grounds for Appeals in California”; http://www.wklaw.com/areas-appeals.html


Wednesday, July 23, 2014

Individuals Cannot Get Two Strikes for the Same Criminal Act Even if They are Convicted of Two Strike Felonies

The California Supreme Court recently resolved the issue of whether a single act resulting in two strike-able felony convictions can be used as two strikes. In People v. Vargas, 14 Cal. Daily Op. Serv. 7786, 2014 Daily Journal D.A.R. 9070, Darlene Vargas was sentenced to a third strike under the three strikes law for her burglary conviction in 2008. Vargas had two prior convictions from 1999 for carjacking and robbery which were for the same act; Vargas pled guilty to carjacking and robbery in return for a plea deal of 3 years. For the 2008 burglary conviction the lower court counted the two convictions as two separate strikes for sentencing purposes. Under the three strikes law Vargas would have to serve 25 to life for the third strike. On Appeal, the California Supreme Court concluded that the 1999 conviction should only count for one strike. This meant that Vargas’ sentence should be calculated as a second strike rather than a third which would be consistent with the legislative intent for the three strikes law.


Notably, during sentencing, the trial court has the discretion to dismiss a prior strike-able felony conviction in the furtherance of justice; however there must be “extraordinary circumstances” to exercise that discretion. The California Supreme Court defined Vargas as an example of an extraordinary circumstance in which the trial court should have dismissed the prior strike. The court used the baseball analogy behind the three strikes law to explain their reasoning: you cannot get two strikes for swinging the bat once. Although it is possible to get two strikes during the commission of a crime with multiple criminal acts, such as a robbery where the suspect commits a further crime (for example pistol-whipping a victim which could be charged as an assault with a deadly weapon), the Court found that this case was not one of those circumstances. 

Wednesday, July 2, 2014

“Straw purchasers” of firearms must identify themselves as such

The Supreme Court of the United States in Abramski v. U.S., 134 S.Ct. 2259 (2014) held that misrepresenting oneself as an actual firearms purchaser versus a “straw purchaser” was a material misrepresentation. Abramski was convicted of making a false statement that was material to the lawfulness of a firearm sale and making a false statement with respect to information required to be kept in the records of a licensed firearms dealer. The law in part reads that it shall be unlawful to “make any false or fictitious oral or written statement ..., intended or likely to deceive such [dealer] with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.” 18 U.S.C. § 922(a)(6)
Abramski purchased a handgun for his uncle who could legally own a firearm. The reason Abramski did this was so he could use his old police I.D. and obtain a law enforcement discount on the handgun. The form Abramski filled out was ATF Form 4473 which is required to be filled out by the purchaser of a firearm at the time of the sale. Question 11.a asked whether Abramski was the “actual transferee/buyer” of the firearm. Abramski answered in the affirmative even though the form warned that straw purchasers did not qualify and must identify themselves as such. A straw purchaser is someone who buys a firearm on behalf of another person.
The court held that Ambramski’s misrepresentation was material because the ATF Form was required to be kept by the firearms dealer for future use by law enforcement agencies. The court stated that a straw purchase of a firearm for a person legally allowed to own one has no bearing on the violation. This is because the purpose of the ATF form is not to just prevent prohibited persons from purchasing firearms but to also determine who the current owner of a firearm is. According to the Court, the current owner of the firearm is important information for law enforcement because it helps determine whether someone is a suspect in a crime or whether someone has a firearm in their possession and allowing for straw purchasers would contradict this purpose and defeat the goal of ATF form 4473.



Tuesday, June 24, 2014

Mandatory sex offender registration requirement cannot be expunged even if the underlying misdemeanor offense is



California Penal Code §1203.4a provides that an individual convicted of a misdemeanor, who is not granted probation and who is not serving a current sentence for any offense may withdraw his plea of guilty or nolo contendere for the misdemeanor after one year has passed from the imposition of the judgment. During the one year the individual must have served and complied with the sentence of the court. After the imposition of the judgment the individual must also have “lived an honest and upright life and . . . conformed to and obeyed the laws of the land.” Under §1203.4a the individual will be eligible to be released “from all penalties and disabilities resulting from the offense of which he or she has been convicted.”

The California Court of Appeals in People v. Hamdon, 225 Cal.App.4th 1065 (2014) interpreted that “all penalties and disabilities resulting from the offense” did not include California penal code § 290, which requires mandatory sex offender registration. The court stated that expungement of the misdemeanor offense under §1203.4a does not make the individual’s previous convictions a legal nullity. Therefore certain regulatory schemes which are not punishments are excepted from being expunged, such as licensing requirements for attorneys and doctors. The court saw the goal of mandatory sex offender registration as regulation designed for protecting the public and any retributive effects that resulted from it as being insufficient to justify the regulation being treated as a punishment.

The court pointed to California Penal Code §290.5 as the correct means for obtaining relief from mandatory sexual offender registration status. Section 290.5 provides that in order to get relief from mandatory sex offender registration an individual needs a certificate of rehabilitation, which can be obtained after having the underlying criminal offense expunged. Therefore even though Hamdon’s misdemeanor sexual battery conviction was expunged, his mandatory sex offender registration will not be dismissed until he is able to satisfy the requirements set forth in §290.5 for certificate of rehabilitation.