Archive for the ‘ Criminal Defense ’ Category

“MAKING A MURDERER” AND THE PROBLEM OF FALSE CONFESSIONS

Posted on: February 9, 2016 by in Criminal Defense
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Orange County criminal defense attorney

Making a Murderer, a ten-part documentary from Netflix, came out at the end of 2015, a year in which the criminal justice system in the United States was widely criticized and endlessly scrutinized. The film has been seen by millions, and it’s generated plenty of controversy. Making a Murderer is the story of Steven Avery, a Wisconsin man who was released from prison in 2003 after serving eighteen years for a sexual assault that he did not commit. That story alone would have made for a fascinating documentary, but Avery’s first conviction and his exoneration are only where Making a Murderer begins. In 2005, Avery was arrested for the murder of a local photographer, Teresa Halbach, and he was convicted of that murder in 2007. The series also covers the arrest, prosecution, and conviction of Avery’s nephew and alleged murder accomplice, Brendan Dassey, who is a key figure in the story.

After serving 18 years in prison for sexual assault, Avery was exonerated when the DNA in the case was matched to another suspect guilty of other crimes in the region. After Avery was released in 2003, he filed a $36 million civil lawsuit against Manitowoc County and several county officials associated with his first arrest, trial, and conviction. However, soon after filing the lawsuit, he was accused of the murder of Teresa Halbach, a photographer last seen on the Avery family property photographing a minivan that Avery was selling.

THOUSANDS DEMAND A RETRIAL

The corrupted evidence in this case and the stunning behavior of the police and the prosecutors have frankly made it impossible to determine if Avery actually did or did not murder Ms. Halbach. Evidence may have been planted by the police to incriminate Avery in retaliation for filing a lawsuit. The only certainty about the case is that a dubious and problematic confession was coerced from Brendan Dassey. Dassey, who has an IQ of 70, was 16 when he was charged with being Avery’s accomplice. In a videotaped confession after a brutal, four-hour interrogation without a parent or a lawyer present, he told detectives that he raped and brutalized Ms. Halbach at Avery’s insistence, and he then helped Avery kill the young woman. Dassey later retracted his confession, but he was nevertheless convicted of the murder and sentenced to life in prison. Netflix viewers were shocked by the videotaped interrogation and confession, and thousands have signed a petition demanding a retrial for Dassey.

Step-by-step, Making a Murderer shows viewers why Dassey’s confession could not have been true. He tells a story that, on the basis of the forensic evidence, simply cannot be true. Viewers can clearly see and understand that Dassey’s police interrogators ask leading questions, and the intimidated teen tells the officers precisely what they want to hear. Despite the impossibility of Dassey’s story, his recanted confession nevertheless led to his conviction, although he may not have had any involvement at all in the crime.

Orange County criminal defense attorney

FALSE CONFESSIONS ARE COMMON

In fact, about one out five prison inmates who’ve been released after being exonerated by DNA evidence originally made a false confession. In Mississippi, Phillip Bivens spent more than thirty years in prison after confessing to a murder that he did not commit. DNA tests led to his exoneration in 2010 and identified the murderer as a man named Andrew Harris, who has been serving a life sentence for another crime since the mid-1980s. That case inspired novelist John Grisham to write The Confession, a fictional story based on some of the details of the Bivens case.

A case out of New York that’s almost as controversial is the case of Adrian Thomas. In 2008, after his infant son died of a head injury and subsequent infection, police officers spent hours interrogating Thomas and trying to coax a confession from him. They even threatened to arrest his wife for murder if he didn’t confess. Court records indicate that police officers told Thomas 67 times that they believed his son’s injury was an accident, 14 times that he would not be arrested, and eight times that he would be going home if he simply told the truth. Instead, Thomas was convicted of second-degree murder, and his confession was the key piece of evidence. The New York Court of Appeals ordered a retrial, and the second jury found Thomas not guilty.

An even more stunning case happened in Butler, Alabama. In 2001, Victoria Bell Banks, Dianne Bell Tucker, and Medell Banks, Jr., were each sentenced to fifteen years in prison. The trio all implicated themselves in the murder of Victoria Bell Banks’ newborn child. The State of Alabama, it was later determined, had convicted three people for the murder of someone who never even existed. In 1999 Victoria Bell Banks had faked a pregnancy in order to get released on bond for a minor charge from the Choctaw County jail. One of the two doctors who examined her had reported a possible fetal heartbeat. Months later, when Ms. Banks again encountered local police, they asked about her baby – the reason she had been released from jail – and when she claimed that she had miscarried, Alabama police launched an investigation that ended with three false confessions and three wrongful convictions.

SOME ARE EXTREMELY VULNERABLE

Victoria Bell Banks has an IQ of 40. Medell Banks, Jr., has an IQ of 57. Brendan Dassey has an IQ of 70. Intellectually disabled persons are extremely vulnerable to admitting to crimes they didn’t commit. Teenagers and children are also vulnerable. All of these groups are easily influenced and intimidated by authority figures. However, if you think the Dassey, Bivens, Thomas, and Banks cases are anomalies – glitches in the system – you would be wrong. False confessions are more common in the U.S. criminal justice system than most of us would want to admit.

For example, according to Steven Drizin, legal director for the Center on Wrongful Convictions at Northwestern Law School in Chicago, there have been dozens of cases in which parents have confessed to killing their children or children have confessed to killing their parents. Those confessions were later determined to be false. Sometimes, a person will simply walk into a police station “out of the blue” and confess falsely to a crime, but the majority of false confessions are coerced by the police during interrogations.

IF YOU ARE INTERROGATED

What happens in a police interrogation? According to Richard A. Leo, the author of Police Interrogation and American Justice (Harvard University Press, 2008), if you’re charged with a crime, the first thing you should know is that an interrogation can be lengthy, and there can be more than one. Never, ever allow the police to interrogate you without having your attorney present. You have the right to remain silent, and you have the right to legal counsel during any questioning or interrogation by the police. Show the police respect, don’t be hostile or have an attitude, but firmly insist on your legal rights. If every suspect insisted on his or her rights from the beginning, the number of false confessions – and wrongful convictions and needlessly ruined lives – would decline substantially. If you are charged with a crime, contact a good defense lawyer at once, and in southern California, call an experienced Orange County criminal defense attorney.

A study published in 2007 in Law and Human Behavior surveyed 631 police interrogators and detectives about their interrogations. Respondents said that about four out of five criminal suspects waive their Miranda rights – their rights to remain silent and to have an attorney present during questioning – and that one in every twenty confessions they hear is a false confession. Wisconsin police interrogated Brendan Dassey five times, and each session lasted for hours. The police can even ignore your request for a lawyer. In California, officers routinely continue talking to suspects after a lawyer has been requested. That’s because if a suspect starts talking again, then the request for a lawyer is considered waived. Also in California, prosecutors can use statements given without a lawyer’s presence to “impeach” a defendant’s credibility if that defendant testifies in his or her own defense.

Orange County criminal defense attorney

LIES, TRICKS, AND DECEPTIONS

The police are allowed to use lies, tricks, and deceptions when interrogating suspects – which is why you should always exercise your right to remain silent if you become the subject of a police interrogation. Most police agencies conduct interrogations using what is called the “Reid Technique,” a nine-step procedure that begins by confronting the suspect with guilt and then offering the suspect a reason for why he or she committed the crime. Officers may then apply a variety of psychological pressures to obtain a confession. Some observers believe the Reid Technique should be abandoned because it results in so many false confessions.

Everyone’s heard the old adage that “confession is good for the soul,” but it’s obvious that a false confession is not so good. A confession is a commanding piece evidence against a criminal suspect. If you have made a false confession to a crime for any reason, or if you have been subjected to a coercive interrogation by the police, you need serious legal help, and you need it now. Obtain the help you need and contact a good defense lawyer as quickly as possible, and in southern California, speak to an experienced Orange County criminal defense attorney.

CARJACKING – ALWAYS A FELONY

Posted on: November 25, 2015 by in Criminal Defense
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Orange County criminal defense lawyerCalifornia Penal Code 215 and 663

In the California criminal justice system, some crimes are considered felonies, some are misdemeanors, and a third category of crimes, called wobblers, may be charged as either felonies or as misdemeanors. California considers carjacking to be a serious crime. It’s always charged as a felony, and if you are convicted of carjacking, prison time is likely. If you are charged with carjacking in Orange County or elsewhere in southern California, contact an experienced Orange County criminal defense lawyer without delay.

If you steal a parked vehicle in California, the charge is auto theft, but if you steal a vehicle directly from another person by using intimidation, violence, or a weapon, the charge is carjacking. Under California Penal Code 215, a carjacking charge is always a felony charge, and a conviction is punishable by up to nine years in the California state prison system. If a weapon was used, the sentence may be even lengthier. California Penal Code 663 says that even an unsuccessful carjacking attempt still legally constitutes carjacking. If you are charged with carjacking because you were wrongly identified, or if there was no carjacking and the allegation was entirely false, an experienced criminal defense lawyer will ensure that what really happened is explained to – and fully understood by – everyone involved.

If you are arrested for carjacking in southern California, politely insist on your right to remain silent and on your right to have an attorney present during questioning. Do not plead guilty or accept any plea bargain before speaking to an attorney. Do not attempt to act as your own lawyer – too much is at risk. When you’re accused of carjacking or any other crime, take immediate action to protect your freedom and your future. Obtain the legal advice and representation that you’re going to need, and contact an experienced Orange County criminal defense lawyer as quickly as possible.

KIDNAPPING – DEFINITION AND PENALTIES

Posted on: November 20, 2015 by in Criminal Defense
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Orange County criminal defense attorneyCalifornia Penal Code 207, 208, 209, and 209.5

In California, if you’re arrested and charged with kidnapping, get the legal help that you need and speak immediately with an experienced Orange County criminal defense attorney. Kidnapping is a serious charge, so do not attempt to act as your own lawyer. Insist on your right to remain silent and to have an attorney present during questioning. Kidnapping is a felony in California, and “aggravated” kidnapping is an even more serious offense. Aggravated kidnapping happens when:

• force, fear, or fraud is used and a kidnapping victim is a child under 14 years old
• when a kidnapper communicates a ransom demand
• when a kidnapping victim suffers serious injuries or death
• when a kidnapping is tied to a carjacking or to another crime

Life in prison can be the penalty for aggravated kidnapping in California. Even without the circumstances that make a kidnapping “aggravating,” a conviction is punishable by up to eight years in a California state prison. If a kidnapping victim is taken across a state line, a federal kidnapping indictment is likely. A conviction may be followed by a civil lawsuit – victims of “false imprisonment” have the right to sue for damages in the civil courts. However, sometimes what’s happened isn’t actually a kidnapping – it’s a mistake or a misunderstanding. To convict you of kidnapping in California, a prosecutor must prove that:

• The victim did not consent or was too young to consent.
• You took, detained, or held someone through force or reasonable fear.
• You transported the victim or had the victim move a substantial distance.

Of course, merely being charged with kidnapping does not mean that you’ll be convicted. Some kidnapping claims are completely false; a skilled criminal defense lawyer can usually discredit such allegations. Get legal representation at once if you are charged with kidnapping in southern California, and put your case immediately in the hands of an experienced Orange County criminal defense attorney.

WHAT ABOUT A PLEA BARGAIN?

Posted on: November 16, 2015 by in Criminal Defense
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Orange County criminal defense lawyerIn Orange County, if you are accused of a sex crime, a drug crime, a white-collar crime, or a robbery or theft, speak first and at once with an experienced Orange County criminal defense lawyer. As a criminal defendant, one of the first things you should know is that the majority of criminal cases are never heard by juries. Criminal cases in California and every other state are more typically concluded when both sides agree upon a plea bargain. You probably already know how a plea bargain works. A defendant enters a guilty plea to one or more charges. The state then dismisses any other charges, reduces them, or recommends a reduced or alternative sentence to the court. In some cases, if you’re charged with a crime in California, a plea bargain with let you avoid serving time in jail. However, before you accept a plea bargain on any criminal charge, it’s imperative to have a good defense attorney’s advice.

Prosecutors offer plea bargains as an expedient way to manage large caseloads in a criminal justice system that’s routinely congested and overloaded. If your defense lawyer believes strongly that you can be found not guilty by going to trial, or if your attorney thinks the charge will be dropped, don’t take the plea bargain. It’s your choice, but the wisest choice you can make as a criminal defendant is to retain experienced defense counsel and then adhere to your attorney’s advice.

If you are arrested and charged with a crime in southern California, and if you are offered a plea bargain, your lawyer can give you sound advice, but in the end you’ll have to weigh the pros and cons of a plea bargain offer for yourself. Don’t agree to anything – don’t even agree to being interrogated by the police – without first consulting an experienced Orange County criminal defense lawyer. If you are charged with a drug or sex crime, a robbery or theft crime, a white-collar crime, or with driving under the influence in Orange County, make the call as quickly after the arrest as possible.

IF THE CHARGE IS A “WOBBLER”

Posted on: November 13, 2015 by in Criminal Defense
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Orange County criminal defense lawyerIf you are convicted of a misdemeanor in California you might or might not serve time in a county jail, from a day up to a year. However, if you are convicted of a felony in this state, it’s possible that you’ll serve some time – at least a year, and in some cases substantially more – in a California state prison. Many crimes in California are always charged as felonies or always charged as misdemeanors, but in a number of other situations, a prosecutor may choose to charge you with either a misdemeanor or a felony depending upon the details of the crime and your criminal history. Numerous criminal offenses in California are called “wobblers” – because they can go either way.

If you are charged with a drug crime or a sex crime, a robbery or theft, a white-collar crime, or driving under the influence, many of these crimes are “wobblers,” and you’ll need the help of an experienced Orange County criminal defense lawyer. While an acquittal or dismissal of charges is usually the priority in a criminal defense, if the evidence against you is overwhelming, a good defense lawyer in some cases may be able to keep the charge from being filed as a felony. You’ll need sound legal advice and an attorney who will fight aggressively to bring your case to its best possible conclusion.

If it’s your first offense and you didn’t injure anyone or use a weapon, as a general rule if the charge is a wobbler it will be filed as a misdemeanor rather than as a felony. If you have prior convictions – especially prior felony convictions – if the charge is a wobbler, you’ll probably be looking at a felony. Every case is different, and you’ll need to obtain the specific advice that only an experienced criminal defense attorney – after reviewing your case – can offer. It’s imperative to retain high-quality legal representation if you are charged with any crime in southern California. If the charge is a drug or sex crime, a robbery or theft, a white-collar crime, or driving under the influence, put your case immediately in the hands of an experienced Orange County criminal defense lawyer.

EXPUNGEMENT EXPLAINED

Posted on: November 9, 2015 by in Criminal Defense
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Orange County criminal defense attorneyCalifornia Penal Code 1203.4

More than 70 million people in the United States have a criminal record. That makes them subject to scores of federal and state laws and regulations that restrict their rights, from voting to housing and employment to owning a firearm or obtaining a driver’s license. While some of the regulations make good sense, others have nothing to do with the original crime and conviction. Some of the regulations are arbitrary, unfair, and unreasonable. If you’re routinely turned away by employers, a criminal record may be the reason why. With help from an experienced defense lawyer, most California misdemeanors and some felonies can be expunged under California Penal Code 1203.4. Learn more about having your criminal record expunged by speaking right away with an experienced Orange County criminal defense attorney.

The current system’s basic unfairness was highlighted in May. Although there is no federal legal procedure that allows for the expungement of federal criminal convictions, a District Court Judge in Brooklyn took it upon himself to expunge a conviction he had personally handed down a decade earlier. District Court Judge John Gleeson noted the “adverse impact” the conviction for a minor insurance fraud charge has had on one woman’s ability to obtain employment. In his decision, Judge Gleeson wrote: “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.”

Expungement permanently seals a criminal record from the general public – employers, landlords, and anyone else checking into your background. However, if you served a sentence in a California state prison, you are not eligible for expungement. Otherwise, if you need to have a criminal record expunged, speak with a criminal defense lawyer who routinely handles expungements on behalf of clients. Your attorney will review your record, and if you are eligible, your attorney will explain expungement and initiate the procedure. If something that happened years ago is preventing you from landing a job or is still detrimental to you in any other way, speak as quickly as you can with an experienced Orange County criminal defense attorney.

YOU, STOLEN PROPERTY, AND THE LAW

Posted on: November 6, 2015 by in Criminal Defense
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Orange Country criminal defense lawyerCalifornia Penal Code 496

California harshly penalizes defendants convicted of buying, receiving, hiding, selling, or otherwise keeping from its owner any property that they know is stolen property. If you are charged in Orange County with receiving or possessing stolen property, obtain high-quality defense representation as quickly as you can – contact an experienced Orange Country criminal defense lawyer immediately. Insist on your right to remain silent, do not try to act as your own attorney, and do not plead guilty before consulting with an experienced defense attorney. Instead, fight the charge with help from a lawyer who will investigate the case on your behalf, determine the truth, and advocate aggressively for the justice you need and deserve.

In California, the crime of receiving or possessing stolen property may be prosecuted as either a felony or as a misdemeanor. A conviction on the felony charge is punishable by 16 to 36 months behind bars and a fine of up to $10,000. A conviction on the misdemeanor charge is punishable by up to a year in jail and a fine of up to $1,000. If you intended to return the property, or if you took or obtained the property by mistake – or while intoxicated – with no criminal intent, your lawyer will explain your intent and in some cases will be able to have the charge dismissed. If your case goes to trial, your attorney will explain what happened and ask for justice from a jury of your peers.

Witnesses forget details and evidence deteriorates or disappears if you don’t act swiftly. If you are charged with receiving or possessing stolen property in Orange County or anywhere else in southern California under California Penal Code 496, put a reliable attorney on the case right away. In fact, if you are charged with any theft or theft-related crime – robbery, burglary, auto theft, shoplifting, or embezzlement – make the call immediately to an experienced Orange County criminal defense lawyer.

LEWD BEHAVIOR OR INNOCENT CAMPING?

Posted on: November 4, 2015 by in Criminal Defense
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California Penal Code 647(a)

Actress Dita de Leon has set up a campsite in the backyard of her home in the Hollywood Hills, and she rents a tent to visitors for $40 a night using the home-sharing website Airbnb.com. “I wanted to share the view, I wanted to share this amazing experience,” Ms. de Leon told KABC News. Residents of multi-million dollar homes in the neighborhood are outraged. Some claim to have seen guests openly engaging in sexual activity. One Los Angeles police officer who investigated the scene told KABC that Ms. de Leon has done nothing wrong and is not violating any laws.

If you are accused of lewd behavior in public in southern California, obtain legal help at once by contacting an experienced Orange County criminal defense attorney. Lewd behavior happens when a person engages in sexual conduct in a public setting, especially for the purpose of sexual gratification or to annoy or offend another. Upon a conviction, lewd conduct is punishable in California by up to six months in jail and/or a fine of up to $1,000 under California Penal Code 647(a).

Ms. de Leon says that she plans to continue to allow “friends” and guests to enjoy her land and her view. Clearly, public lewdness isn’t a crime of violence, but it’s generally thought of as vulgar and shameful, so it’s a crime that you do not want to be accused or convicted of. An arrest for a sex crime, of course, is not the equivalent of a conviction, but it does mean that you’ll need to fight the charge with help from an experienced California defense lawyer.

When a criminal accusation involves a sex crime – whether it’s a violent rape or someone exposing himself or herself in public – a defense attorney’s experience can sometimes mean the difference between going to prison and being acquitted. If you are accused of public lewdness or any similar crime in southern California, don’t wait. Discuss your case immediately with an experienced Orange County criminal defense attorney.

MOST COPS KNOW THE RULES

Posted on: November 2, 2015 by in Criminal Defense
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Orange County criminal defense lawyerEverybody knows that the police are not allowed to “entrap” suspects. It happens a lot more on television that it does in real life. In the movies and on TV, entrapment happens when a police officer sells illegal drugs and then busts the person who bought them or if a police officer poses as a prostitute, suggests a transaction, and then arrests the person who agrees to the transaction. In real life, these situations may or may not constitute entrapment – the details are what matter. If you are charged with a crime in Orange County or elsewhere in southern California, and if you believe that you have been the target of illegal entrapment by law enforcement officers, take your case immediately to an experienced Orange County criminal defense lawyer.

Legally speaking, an entrapment allegation hinges on a number of factors. If you set forth entrapment as your defense – unlike many other defenses – you will have to prove that you were actually entrapped. This means confessing that you committed the crime and trying to explain that you only did it because you were duped by the police. Entrapment is extremely difficult to prove in a court of law, and if you’re charged with a crime in southern California, your attorney may recommend an alternate approach.

The police understand the rules of entrapment, and undercover officers are particularly skilled and trained at not crossing the line. You may have the vague feeling that you were entrapped, but to use entrapment as a defense, you must be able to prove it. Let an experienced defense lawyer help. If you have been genuinely entrapped or if your rights have been violated in any way by the police, your attorney will fight aggressively for justice on your behalf. If you are charged with a drug crime, a sex crime, a white collar crime, a theft, or a DUI in Orange County or anywhere in southern California, arrange at once to discuss your case with an experienced Orange County criminal defense lawyer.

AUTO THEFT CAN HAVE MANY VICTIMS

Posted on: October 26, 2015 by in Criminal Defense
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Orange County criminal defense lawyerCalifornia Penal Code 487(d)(1) and California Vehicle Code 10851

If you steal a car for a short spin and abandon it, you’ll probably be charged with joyriding. Grand theft auto is charged if you keep a stolen car or if you sell the car or the car parts. If you’re charged with either joyriding or with grand theft auto under California Penal Code 487(d)(1) or California Vehicle Code 10851, get legal help immediately and contact an experienced Orange County criminal defense lawyer. One top-ranking Los Angeles County sheriff’s official recently learned that you can be a victim of auto theft in California even if no one steals your car.

Assistant Sheriff Michael Rothans bought a 2012 Audi A4 after it was seized by sheriff’s deputies from a suspected gang member at a DUI checkpoint. Rothans, the department’s third-ranking official, said he had no idea he was driving a stolen car until more than a year after buying it from Vernola’s Towing in Norwalk. Sheriff’s officials are prohibited from purchasing property that has been seized by the department, and the prohibition also applies to purchases made through a third party. Rothans said he considered the sale a private transaction between friends and thought it was permitted. It turns out that the vehicle was originally stolen from an Orange County car dealership.

Both grand theft auto and joyriding may be charged as misdemeanors or as felonies under California law. However, grand theft auto is almost always charged as a felony under California Penal Code 487(d)(1). If convicted of grand theft auto, you could serve 16 to 36 months in jail along with fines and probation. Joyriding, when it’s a first offense, is usually charged as a misdemeanor under California Vehicle Code 10851; even so, a misdemeanor conviction for joyriding is punishable by up to a year in jail and/or a fine of up to $5,000. If you are accused of joyriding or grand theft auto, obtain the serious legal help that you’re very much going to need, and contact an experienced Orange County criminal defense lawyer immediately.