The Road To Hell Is Paved With Good Intentions

A HORRIFYING HYPOTHETICAL

I have posed the question to friends and colleagues:  If you had to decide between two horrifying scenarios, what crime would you rather be wrongfully convicted of; mass murder, or molestation?

Consider this hypothetical carefully….  “wrongfully convicted of”….  “mass murder or molestation.”

A wrongful identification by eyewitnesses or perhaps even DNA (which is fallible since the application of proof is based on human interpretation …which itself, is becoming notoriously fallible) could lead to a wrongful conviction of mass murder.  But what does it take to be accused…. and convicted of molestation?  It takes the words or conduct of a child.  Even a child who may not be competent to testify.  Or a disabled person, if someone else believes that molestation occurred and the “proper authorities” are contacted.

Naive citizens in our society sometimes subject themselves to prosecution by a harsh, unrelenting judicial system.  Grandparents, priests, teachers, caregivers of all types are increasingly victimized by a prosecutorial system that often is indifferent to the truth.  It is an adversarial system, after all.  And those with the power, are wont to flex their muscles.

To level charges against a citizen, a prosecutor need only have “probable cause” to file a complaint.  Often a prosecutor will convene a grand jury, and through a form of unilateral theater, convince the grand jurors that probable cause exists to charge a person; and then a complaint will issue and be filed.

Clearly, a prosecutor is not bound by the same duties that they are bound by when before a trial jury.  The burden of proof for prosecutors before a jury is to prove the elements of a crime “beyond a reasonable doubt.

RULES OF CONDUCT FOR PROSECUTORS

The ABA (American Bar Association) has special rules for prosecutors that spell out their duties.  The California Rules Of Professional Conduct are currently under revision to adopt these rules.

The first duty mandated by the ABA code “special rules for prosecutors” is that a prosecutor must “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

PROBABLE CAUSE

“Probable cause” is all that it takes to drag a citizen into the legal process.  Probable cause requires “suspicion” and some “articulable facts.”  This means, that if you are “suspected” of a crime; and a police officer, or even a “confidential informant” (aka: snitch); or a child or a disabled person; provides some “articulable facts,” this is enough to bring charges.

And, as mentioned in a previous blog entry, these charges are a matter of perspective…..  a perspective that is colored by the charging prosecutor’s personal ambitions.  As most readers may know, most prosecutors hope to become judges…. this is the core reason why most young lawyers join the District Attorney’s Office.  And, correspondingly, why most judges are former prosecutors.

Know also that “articulable facts,” like all “facts” are subject to personal perspective of the observer.   In some cases it may be the perspective of an overzealous police officer; or even more consequential, the perspective of a child, or disabled person, who may have little to no ability of understanding how their emotional states could color their perception of reality; i.e. the “facts” upon which the charging document relies.  Consider that all of us, even those who consider themselves very rational-minded, are all “victims” of our own confirmatory biases.

PROBABLE CAUSE IS NOT MUCH MORE THAN SUSPICION

“Suspicion” is what justifies a search and seizure at the airport or at the border.  This is the lowest burden of proof, and is justified because of the strong national interest in protecting a country’s borders.  This intrusive tool is used daily on your average citizen, and sometimes it is used to investigate a politician that may have been targeted by certain interests.  Here is an example of where a mayor of a small city is being investigated through the use of this tool.  More on this here.

CONCLUSION

So to all the parents, grandparents, and caregivers of all types: do not stop loving those for whom you care.  But be aware…..  beware…. of the legal consequences that may occur to those who are naive.  Since as the old cliche goes: “Ignorance of the law is no excuse.”  (Unless of course you are a police officer.. but that is a subject for another time [or blog])

Educated awareness is the key to survival in our complex and aggressive “judicial” system.

 

Accusations That Turn A Human Into A Monster

ACCUSATIONS OF SEXUAL MISCONDUCT

If you are falsely accused of sexual misconduct, and an aggressive plaintiff’s lawyer finds enough facts to file a civil complaint, you are in very, very serious trouble, and know that it takes very few facts on which to base the allegations necessary for a civil complaint.  Should this happen to you, your life would be forever changed.  In the public eye, you would transition immediately from human to a feared and hated monster.

In this country there are little to no repercussions for filing a frivolous claim.  The only defense to spurious allegations labeling you as a monster would be to hire a highly skilled and aggressive civil litigator to defend you.  These litigators do not come cheap.  Thus, if you are of modest means, then you are out of luck.

STATUTES OF LIMITATIONS HAVE EXCEPTIONS

Even the passage of time may not save you from accusations.  Recently civil allegations were filed against legendary comedian Bill Cosby by civil attorney Gloria Allred.  She is using a very novel theory to gather the facts necessary to make the allegations.    “….Unlike most of the others, Huth’s case is not precluded by statutes of limitations because Huth suffered repressed psychological injuries, which were discovered in the last three years, Allred said.” New York Daily News

Thus, don’t believe that a statute of limitations will save you, even if you know the claims are completely false.  These allegations in the Cosby Case are a good example of how an aggressive plaintiff’s attorney might find enough facts to make allegations based on recent damages.  Like I stated, it doesn’t take much at all to file a civil complaint.  And here, a newly awoken “memory” will be enough to bring allegations sufficient to turn a formerly loved comedian into a monster.

(I have no more sympathy for Mr. Cosby than I do for any other criminal defendant… however, I too experienced the prolific use and abuse of methaqualone in the mid to late seventies discotheque-party-atmospheres.  Additionally this magazine cover illustrates well the sentiment expressed above)

RECOVERED MEMORY

“Recovered memory” is based in psychological theory, which is known as a “soft science.”  These “recovered memories” become “facts” and are then used by both civil plaintiff’s attorneys and prosecutors to make allegations, whether true or false.  And then these “facts” are used to win their cases.

However, there is hope for the falsely accused, if they can hire a psychologist who is willing to debunk these horrible “facts.”  The leading psychological expert debunking this “recovered memory” theory is a very smart and pragmatic psychologist by the name of Elisabeth Loftus.  Here is her curriculum vitae.

A CIVIL SUIT WILL OFTEN LAY THE GROUNDWORK FOR A CRIMINAL PROSECUTION

The burden of proof in civil cases is much, much lower than the burden of proof that a prosecutor is faced with in proving their case, whether before a jury or a judge.  The burden of proof in a civil case is by the “preponderance of the evidence.”   A civil lawyer must prove only that it is 51 percent likely that damages had occurred.  This differs from a criminal prosecution, where the prosecutor must prove all of the elements of the charged crimes “beyond a reasonable doubt.”  In contrast, if a jury in a civil case concludes that the balance of the evidence favors the plaintiff, then the plaintiff gets the money, and the defendant is branded as a monster for the rest of his or her life.

The incredible danger in losing a civil suit on a sex case, is that politically motivated prosecutors may be waiting in the wings to make a name for themselves; and the accused person (or their superiors) in those cases are not just facing an economic loss, and a loss of reputation; they are facing a loss of liberty.  They will go to prison.  And then be branded as sex criminals and/or molesters for the rest of their lives under most state’s sex registration schemes.

FINANCIAL INEQUALITY CAUSES TREMENDOUS UNFAIRNESS

Obviously, prosecutors have nothing to lose financially, since unlike the accused, the prosecutors and “law enforcement,” whom they devotedly support, are funded by taxes.   Moreover, most prosecutors aspire to be judges, and most (non-retired judges) aspire to become justices (on the appellate bench).  It is part of what drives the competitive nature of our justice system.  As anyone with any sense of self-awareness knows, competition is a governing principal of what drives all humans.  Donald Trump is a current shining example.

THE PROSECUTOR’S BURDEN OF PROOF IS WATERED DOWN BY A CALIFORNIA JURY INSTRUCTION, WHEN A HISTORY OF SEXUAL MISCONDUCT IS INTRODUCED AT TRIAL.

Even the highest standard of proof, which relies on the prosecutor having to prove his or her case beyond a reasonable doubt, will not offer much protection to someone who has a history (whether true or fabricated) of sexual misconduct.  The prior sex conduct may seem like ancient history that has been forever buried.  These accusations may have been made in the  heat of a family dispute, and then documented to support a “stay away” order.   Or perhaps a  misunderstanding at school lead to some documentation at an administrative hearing.  These written allegations may later be introduced at the criminal trial and be waved before the jury by the prosecutor in your criminal trial like a matador’s cape before the bull.

The California Jury Instructions (CALCRIM), ….. and this is literally how the law is explained to jurors at trial,….. actually water down the burden of proof of Beyond a Reasonable Doubt, because these Instructions introduce the civil burden of “Preponderance of the Evidence” into the equation that is  ultimately used to determine guilt or innocence.

 CalCrim Jury Instruction 1191, Evidence Of Uncharged Sex Offenses:  ” You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense[s]. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.”

Therefore, it can be extremely difficult for the person accused of a sex crime who has a history of sexual misconduct (however slight) to get a fair trial.

EFFECT OF OUR ADVERSARIAL SYSTEM ON FAIRNESS IN SEX CRIME TRIALS

In the drama of our modern adversarial courtrooms, where you are judged by a jury of your “peers,” the logical explanation of a psychological expert like Ms. Loftus, (mentioned above) may be overwhelmed by the showmanship that a plaintiff’s civil lawyer might bring to the arena that is our modern adversarial system.  Unlike the “junk science” that the plaintiff’s attorneys and / or sex-crime prosecutors use to justify their positions, Ms. Loftus will provide testimony based on empirical studies.

The jury is often not sufficiently sophisticated to distinguish between the true science based on empirical studies, and the junk science that is newly awoken “repressed memory.”  And know that the prosecutors and the plaintiff’s attorneys have an almost limitless supply of money to provide brilliantly crafted powerpoints to the jury.  The former can rely on funding by tax payers, and the latter on previous million-dollar verdicts which they may have been awarded for previous clients.

Additionally, the citizen jurors are faced with the almost indomitable task for finding a human when the other side is doing their best to portray the defendant (in either a civil context or a criminal trial context) as a MONSTER.  It is thus incredibly difficult for an average citizen to be dispassionate under these circumstances, since we are all strongly affected by our own confirmatory biases.

See also Attorney Don M. Re’s Youtube explanation of the interplay between burden of proof in a criminal case (beyond a reasonable doubt) and that which is applied to civil trials (a preponderance of the evidence) – AND the combination of the two burdens as often applied in a criminal case when the prosecutor has claimed that “prior sexual conduct” has occurred.

Unwitting Cyber Crime Victim?

Are you an unwitting cyber crime victim?  Are you a fairly wealthy American parent with a teenager obsessed with video games?  Are you somehow missing money, and you might suspect your kid is stealing from you to buy drugs?  Maybe illicit drugs are not the problem.

Some teenagers (and adults) have become psychologically addicted to video games for the stress-relief that game-play provides (by allowing them to ignore a perhaps mundane and tedious reality).  Of course, the video game industry knows this, and has earned billions off of exploiting this psychological addiction to “game-play.”

Consequently, clever cyber-criminals have learned how to more directly extort these game-play addicts.  Here is a fascinating article that explains this truly modern criminal phenomenon; this is almost science fiction:  Extorting the Video-Game Addicts  I’m sure that a Hollywood movie based on this is in the works.

In a recent New York Times article a reference is made to this emerging form of crime.  “Even if he had wanted to pursue organized crime, life was passing him by. ‘‘The new generation is about crime in the computer,’’ Shrimp Boy said — credit-card fraud, identity theft, cyber extortion. ‘‘I don’t even know how to use the computer.’’”

 

Public Courts??

Clients of mine who have never stepped foot into a courtroom before are often shocked and dismayed by what they witness in the criminal courts, not just the injustices that they are subjected to (even with a lawyer fighting for them at their side), but also to what their fellow accused citizens are subjected to.

Although our courtrooms, with few exceptions, are required to be open to the public, this is not the reality of our criminal justice system.  The reality is that the average citizen is too busy to go to court simply to watch the proceedings.  Who would want to?  Much of it is boring and tedious to the layperson.  However, as with the machinations of the legislature, what happens in the criminal courts affects everyone, not just those accused of crimes.  A major reality is that the laws protecting every citizens’ right to be free and to be private from government intrusion are shaped every day in the criminal courts.

Injustice to the accused citizen is especially prevalent in smaller jurisdictions where it is sometimes obvious that the district attorney works at the behest of the police.  Here, the police and the district attorneys see themselves as “law enforcement:” in fact most of these prosecutors carry badges.   In these smaller jurisdictions some of the judges don’t even pretend not to work for the enforcement system.   (Judge as prosecutor and enforcer ) These types of courts are in direct violation of the “separation of powers doctrine” which is at the core of a fair judicial system in the United States.  The powerful judiciary (judges) are not supposed to be affected or even influenced by the powerful executive (district attorney/prosecutors) (Marbury v. Madison Separation of powers)

An arrest is unlawful if it is a violation of due process.  Whether we can depend on due process of the law directly affects our right to life, liberty and the pursuit of happiness (and to be free from government intrusion).  Under our current laws the police are given great deference in executing their powers of arrest.  Arrest requires only probable cause.  Probable cause consists of “suspicion” and some “articulable facts.”

And, as everyone knows, “facts” can be made up since they are always subject to interpretation.    Thus, while unlawfully arresting a citizen, the police will claim that the subject was resisting, and that person is then arrested for resisting arrest.  The small-town district attorney will then charge the accused with “resisting arrest” at the behest of the police.

If the citizen was injured by the police, during the unlawful arrest, the small-town DA will either get a guilty plea, or take the case to trial in hopes of winning, and thereby insulating the police from civil liability.  Even if his/her client was seriously beaten and injured, it is almost impossible for a civil lawyer to obtain money damages when their client has been found guilty of resisting arrest.  As stated above, “facts” are subject to interpretation, and most police, as professional witnesses,  are certainly well trained in testifying to a version of the “facts” that will help the prosecutor win a conviction.

On the other hand, district attorneys from larger jurisdictions will often dismiss misdemeanor resisting arrest charges; knowing that the false arrest and brief incarceration was a sufficient punishment for giving the police “attitude.”  Rapper arrested for “resisting arrest”   Even hard-fighting criminal defense lawyers are not immune from this police practice  Defense Lawyer arrested for “resisting arrest”.

Technology in the hands of the public is daily providing for more transparency.  The fact that cellphone cameras are are almost everywhere is helping to expose the wrongful conduct of the police and even judges.   (Judge as prosecutor and enforcer )

If we were to heal our wounded judicial system and avoid the unrest that has plagued towns like Ferguson to be ever-perpetuating, and increasingly widespread, we should also use technology to create a fair judicial and law enforcement system.  In that regard, I have two proposals.

First, I would humbly propose that all police wear body cameras when on duty.  But to be truly effective the cameras must be live-streamed to a group of senior citizens for oversight (put our seniors to work).  These senior citizens would volunteer and then be randomly selected.  Only through this system would police body cameras make sense – otherwise it would be like the current systems where the “fox is watching the hen house.”

Second, I would also propose that all criminal courtroom proceedings (excluding juvenile and other limited exceptions) be live-streamed to the internet to where any person with a computer of a smartphone with internet access could watch the proceedings.  This would be an advanced version of how CNN publicizes the legislature.  Our court system would then be truly “public” when anyone could watch any criminal courtroom proceeding anywhere in the United States.  This system could even have international consequences that would benefit the United States’ international image, as foreign internet users would then also be able to witness an open and public system.

The implementation of these proposals would heal a judicial system that has been badly infected by corruption, the corruption that power over fellow citizens naturally engenders. (psychology of corrupting power)

Perhaps there is an “app for that.”  Any young software engineers connected to civic minded influential persons with the ability to invent and implement the proposals above would have my support……and the eventual gratitude of millions.

America’s Growing Dissatisfaction With The Police

At the heart of our nation’s police problem is that our society does not hold individual officers accountable for unlawful arrests. Thus, the bullies among them are encouraged to cause innocent citizens to suffer. “Jonathan Turley, a law professor at George Washington University, said the right to take videos of police encounters in public is clearly protected by the First Amendment. He said the trend is for police to detain people who are shooting video, and subsequently drop the charges”

Citizens taking video of police see themselves facing arrest

Beware of unscrupulous Attorneys/Lawyers (same thing)

Beware.  If you are charged with a crime, you are vulnerable and perhaps in a desperate situation.  Hiring an attorney is not like buying an appliance.  Always meet with the lawyer if you can.  Beware of fast talking lawyers who attempt to exploit your concerns.  Beware of any lawyer that promises a specific outcome.  You should feel better about your case once a competent lawyer explains you or your loved one’s options.  A bad lawyer will usually make you feel worse about your chances, because they want to frighten you into paying them quickly, regardless of the amount of the fee.  Beware of a lawyer who will start telling you about all the judges and prosecutors that they know, to make up for their lack of ability.  Beware when a lawyer starts talking about a cutting a deal, without having reviewed the prosecutor’s evidence in your case.  Ask yourself, would you buy a used car from this person?  If not, then you probably don’t want that person representing you in court when your liberty is at stake.

Beware also of letters that are addressed to you from a criminal defense lawyer.  These attorneys know that you are in trouble and you are vulnerable because they pay for a service that provides them with your information from the jail.  This is known as “Jail Mail.” California Business Code Section 6157.1. states that “no advertisement shall contain any false, misleading, or deceptive statement or omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not false, misleading, or deceptive. California Lawyer’s Code of Professional Conduct Rule 1-400 requires that if an Attorney/Lawyer sends you one of these letters, “the envelope shall bear the word Advertisement, Newsletter or words of a similar import on the outside thereof.” This Code of Professional Conduct exists to avoid certain Attorney/Lawyers from frightening you into hiring them. So if you have received this “Jail Mail,” and it makes you more nervous than you already were, you now understand why.

Like anything in life, you get what you pay for. Good lawyers are not cheap, and cheap lawyers are no good.

Jeremy Meeks, gang member to fashion model

A good friend of mine was just retained by Jeremy Meeks, who is now famous because of his mug shot that was posted in social media (facebook) by the local police authorities here in San Joaquin County.  Tai Bogan is an excellent attorney who tried an elder-abuse case together with me last year.  This case ended in acquittal and then dismissal of remaining charges.  I brought Tai in on this case, knowing together that we would prevail for our clients, a mother and daughter who were wrongfully accused.

By reviewing the comments posted on articles related to the new-found fame of Jeremy Meeks, a convicted felon and “documented gang member” it is clear that much of the public at large (“the haters” in contemporary parlance); are caught in a paroxysm of self-righteous indignation over this fame/notoriety that is the result of a mug-shot-gone-viral.

Tai Bogan lamented that TMZ.com missed the point in their article on his attempt (by legal motion) to have the shackles from his client while he is in court, and to allow him to dress in civilian clothing instead of the baggy orang jail jumpsuit.  His client, Jeremy Meeks is also saddled with a ridiculously high bail for the basic offense of having a loaded gun in the trunk of his car.  This bail is in violation of the 8th Amendment, and is a result of systemic extortion of the public by the current industrial-prison/jail complex that blights our society (but that is another discussion)

My response to Tai’s post of regarding TMZ.com missing the point was that it is really a case of willful blindness by the gossip/sensationlist-oriented media (not just TMZ).  This was my response:

The media is not concerned with due process issues, only sensationalism (as I learned during my Bling Ring and Colombian Priest representations). Deceased attorney Robert Kardashian’s offspring have made millions by being in the public eye (sex tape), and Paris Hilton also gained notoriety from a “leaked” sex tape. No reason this client shouldn’t benefit from his mug shot. So just “werk it” and have fun with this case Tai and Zach!

The last sentence is directed to Tai and Zach Drivon (his associate) in reference to the “fun” of litigation – which is what drives all true trial lawyers.  What the general public (who denigrate lawyers for being contentious and greedy) does not understand, is that true trial lawyers don’t just work for money, but rather they enjoy the intensity of litigating a trial.  There is no greater challenge than litigating a criminal trial according the rules of evidence.  The nuances involved in successfully trying a case are as multitudinous and varied as sand on a beach….. but I digress a bit here.

Those who feel that the notoriety, and resultant fame and fortune gained by the Kardashians, the Paris Hiltons, and the Jeremy Meeks are an affliction of our modern society have forgotten history.  For wasn’t it Phineas T. Barnum who said it over 100 years ago, that “there is no such thing as bad publicity?”

Reflections on the death penalty and botched executions:

We consider ourselves a civilized nation, yet will kill some of our citizens using a cold and calculated methodology. We somehow consider ourselves humane, because we do it by lethal injection.

A few days ago a man died while writhing and convulsing on the execution table after a botched attempt to administer this “lethal injection.” He also had to be electrocuted into compliance earlier with a Tazer because he was “defiant,” as was reported. I guess he did not want to die.

The guillotine was named after the man who invented the device with the intention of making executions more humane. The invention was designed to avoid the inevitable blunders by the person wielding the executioner’s axe, which had been the prefered method of executing someone. Perhaps the guillotine should be brought back into use for executing those convicted, and subject to our death penalty.

Having one’s head sliced off by a razor-sharp heavily-weighted blade would certainly be more efficient and effective than administration of the “lethal injection” that just occurred in Oklahoma, where the convicted person eventually died of heart failure after about 45 minutes or so.

And wouldn’t this better satiate the blood lust of those who support the death penalty, especially if this was done in public? Why do we, as a society, attempt to make the calculated killing of another human being appear “humane” in the same way we deal with having to “put down” a favorite pet? Do we need to lie to ourselves in the same way we will lie to our children that their loved pet has gone to doggie heaven?

Years, even decades ago, when I was an investigator, one of our clients explained to me that he believed that people who were cruel to other people did so because they had lost touch with the humanity that resides within us all. I chose to adopt this philosophy, since it made more sense than to just try to apply the amorphous label of “evil” to someone who commits violence against other humans.

After all, is it “evil” to eat human flesh, if you live in a society of cannibals? Over the course of my lifetime, and in the course of my legal career, I have dealt with many, many, flawed humans. Most people who commit violence do so out of fear. One just needs to look deeper, beyond to surface layers of what motivates people to commit violent crimes.

The gang-member who shoots another young gang-member kills out of the need to be validated by the rest of the group. It is basically out of peer pressure. The gang-member acts violently out of the fear that he or she will be rejected by his/her peers, that if you allow yourself or your group to be “dissed,” that is being “disrespected,” and the gang cannot survive without “respect.” If you peel off the superficial layers and look at almost any killing of one human on another, or even on many, the motive is rooted in fear.

And when I speak (metaphorically) of “fear,” I am referring to “fear” in all its permutations,…anxiety, concern, worry, et cetera, et cetera. A person who is content and confidently in touch with their own humanity, is not a fearful person, and is not a person who will kill or even harm another human.

That said, in my opinion, the death penalty is a societal mechanism that purports to bring “closure” to those others who have suffered because of the loss of their loved ones. “Closure” is a false concept, since it may assuage the anxiety of those that are asking for execution, but it will never cure the loss of a loved one that they will have to endure for the rest of their respective existences.

Countless studies have shown that the death penalty does not prevent people from committing murder, since those who kill do so because of weakness – they are not content and confident in their humanity – they are always lashing out against others who they perceive as causing them harm.

Whether it is a gang member who is trying to prove himself to the gang, or a disgruntled employee or ex-spouse. A couple of days ago, a man who killed his ex-wife and seven others, plead guilty to murder in Southern California. He had killed his wife over frustration that he was unable to see his 8 year old son. This is a prime example of a person who had lost touch with what is it to be “human.” Since to be “human” is to be content and confident in oneself and one’s participation in society.

April 9th, 2014 First Entry

Today I got a felony case dismissed for a very sweet young woman who has a twin sister of the same gentle, sweet and naive demeanor.  She had been arrested for a felony for providing false evidence to a police officer.  The unfairness of the situation is on my mind, since she told me that she had lost her job (of 10 years) a year ago, and was unable to find employment since….she thinks because her arrest was published by one of these vulture-like websites that makes money of other’s misfortune by publishing the arrest records of those who are supposed to be considered “innocent until proven guilty.”

I had to explain to the twins that arrest records are public documents, so there was nothing that they could do. And since it was true that she was arrested, there was no action for defamation (libel) since truth is a complete defense. However, I was able to introduce them to the criminal clerk and explain how they could get a certified copy of the records showing the dismissal. I then suggested that they send a copy to the owners of the website and request that they publish the dismissal, or remove the publication of her arrest since it was destroying her career chances.

Most people don’t understand that in order to arrest you, a police officer only needs “probable cause.” This is a much lower standard of proof than “beyond a reasonable doubt.” The police also have broad powers to arrest whomever they believe has committed a crime, because our society puts a lot of faith in the judgment of a “peace officer” sworn to uphold the peace. The reality of certain cops who revel in, and misuse their power to arrest citizens is not a consideration by the legislature when it enacts these standards.

By example, if a defense lawyer needs to find out of a certain cop has been engaged in misuse of his powers, then the defense lawyer (in California) needs to file and argue a “Pitchess Motion.” This is a complicated motion to request the records of misconduct in a police officer’s file. If you win the motion, then the judge meets with the police officer’s lawyer in private, and without the defense lawyer there, the judge decides what gets revealed, and what doesn’t get revealed to the defense lawyer who won the motion. In contrast, if a defense lawyer commits some type of misconduct, and is sanctioned by the Bar Association, then this becomes public knowledge that is published on the Bar Association Website for all to see. Even lawyer advertising services publish these sanctions.

Very different treatment from cops, since lawyers, although they have have to go through a much more rigorous training and education process than do police officers, lawyers are held to very strict ethical standards. You wouldn’t think so with all the jokes about unethical lawyers.

As I mentioned, arrest records are public documents. To get them sealed a defense lawyer needs to prevail with a motion under California Penal Code Section 851.8. The lawyer needs to convince the judge – usually over a prosecutor’s objection – that the police did not have “probable cause” to arrest. Although I have won a few of these motions to seal, they are very, very difficult to win, especially in a felony case, because of legal “good faith presumption” given to cops.

Okay, back to my young twin ladies. They were driving on the freeway and were stopped by the CHP for speeding. These twins were home-schooled in a very strict religious setting, they were and are still very naive, and had absolutely no experience dealing with cops…especially cops on power-trips. The driver was very nervous because she did not believe that she was covered by her sister’s car insurance, and thought she might get in trouble for this. So she gave the officer who demanded her license her sister’s license.

You have to know these sisters. They are really interesting in that they have a habit of speaking very quickly when they are nervous, and they will complete each other’s sentences. It is, what I would imagine, like speaking with a conjoined twin,… or is that “conjoined twins” since there are two individuals attached to one body….but, I digress. The point is that it takes just a little patience to listen to and understand these ladies when they are excited…patience that some arresting officers, namely cops on power-trips don’t have.

I was retained on this case almost a year and a half ago. Negotiations are a big part of representing your client. I was lucky to be able to negotiate with one of the fairest-minded prosecutors in the county. I was able to convince him of the true nature of my clients and how there was never any intent to commit a crime. He did something very rare, which for a prosecutor (who like most of them, are under very strong peer-pressure to gain convictions) takes real guts to do…he gave me a one-year-continuance-for-dismissal. Although in San Joaquin County, this used to be a fairly common negotiation on a minor misdemeanor case with a client that demonstrated a strong non-criminal nature, it was and is an almost impossible deal to negotiate.

Nevertheless, my satisfaction in doing right for my clients (since these twins are inseparable), is a mixed blessing because of the publication of her arrest records all over the internet by these vulture websites. These websites who revel in there self-righteous justification that everyone should be able to see everyone else’s arrest records. Never mind the constitutional (yet mostly fictional) mandate that every one should be “innocent until proven guilty.

Ultimately it is sad how fear-driven our society has become. This is especially true for anyone who is every accused of molestation. Whether they are guilty or completely innocent makes no difference once the finger is pointed at them, and they are subjected to the terrified judgment of the general public. Last year, after a prolonged and arduous battle I won an acquittal for a visiting Colombian Catholic Priest (Father Julio Guarin-Sosa), who was arrested for molestation at the same time as devout Catholics everywhere were waiting for the “smoke to appear from the chimney” announcing that a new pope had been elected.

I am putting together a website for my client to attempt to counter the horrible bad publicity that infests the internet. especially in a case like this with false accusations of molestation. More on that later.