In the news: “We are going to vigorously defend our clients,” Tauches said. “The district attorney filed 48 charges, and they will have to prove each one of them.”
http://www.marinscope.com/sausalito_marin_scope/news/sausalito-fraud-suspects-plead-not-guilty/article_73b9e91c-9f64-11e5-a661-27050a95b328.html
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It's always great to see the look on a client's face after a trial when the clerk of the court reads the words, "not guilty." Recently, I got to experience that one more time. The client had been charged with receiving stolen property. He was adamant that he didn't do it, and the jury agreed. This was the first of two trials I was handling for this client, and according to the District Attorney, this was supposed to be the "easy win" for them. Needless to say, it wasn't, and not only did the client receive an acquittal for the first case, but the District Attorney dismissed the second case in the interest of justice.
My kudos to the client who persevered in maintaining his innocence, and to the jury who got it right this time. Lately, the media outlets say the system is broken. Sometimes, however, the system works, especially if you have a good lawyer on your side. Here is a link to an Op-Ed I wrote that was just published about homelessness in Sonoma County:
http://www.pressdemocrat.com/opinion/3899433-181/close-to-home-its-time?page=1 Police Officer Michael T. Slager shot and killed Walter Scott in the back as he ran away. The video that surfaced showing the killing reveals how unnecessary it was. The mayor of North Charleston has called for police to wear body cameras. People reading this in Sonoma County, I’m sure, hear echoes of the shooting of Andrew Lopez by Deputy Erick Gelhaus. Deputy Gelhaus, unlike Michael Slager, was not charged with murder or any other crime. However, the question that has divided the community here is, was the shooting necessary? In facts well known to those in the community, Deputy Gelhaus states that he pulled up behind Andy, who was holding a replica AK-47 pellet gun. A witness stated that he heard Deputy Gelhaus tell Andy to drop the weapon twice. Deputy Gelhaus stated he fired his weapon when Andy turned and the barrel appeared to rise toward him. There was no video of the encounter. In North Charleston, prior to the emergence of a video showing the incident, Officer Slager stated in his report of the shooting that he feared for his life after Walter Scott took his TAZER from him during the arrest. Anyone reading the report could imagine Walter Scott raising a TAZER towards Officer Slager, forcing Officer Slager to shoot him. This depiction of events would have cleared the officer of any wrongdoing, if the incident hadn’t been captured by a citizen walking by. The video clearly shows an unarmed Walter Scott running from the officer as he was gunned down. As citizens in California, we have a right to video the police as long as long as the person recording is standing far enough from the officer that the officer does not feel threatened and as long as the person recording is not a physical barrier to the officer in the discharge of his or her duties. If you are recording an officer, and the officer asks what you are doing, you can tell them you are exercising your First Amendment right to film them. Here is a great article the right to record police in California. Like North Charleston, the Sonoma County Sheriff’s department will soon outfit all of its officers with body cams. This raises privacy right issues as to both when police can lawfully record private citizens and who has access to these recordings. As long as there are restrictions on when police can record interactions with private citizens in their homes, I am for police using body cams. Here’s why: use of force by police declined by 60% during the first year of their use by officers in Rialto, CA. Would Deputy Gelhaus have shot Andy Lopez if he had been wearing a body camera? Would Michael Slager have shot Walter Scott. I don’t know. But I can be confident that Michael Slager’s actions would have been different if he had known his actions would be recorded and played back for all of humanity to see. As a criminal defense attorney I represent a lot of clients who are at risk of evidence being presented against them in a criminal trial that is the result of a search by officers of either their person, vehicle, house or cell phone. Usually, the police officer states that the person gave them consent to search. Many people don't know that they have a right to refuse an officer's request to search. However, they fear that an officer will arrest them or worse if they don't comply with the officer's requests. Here are some practical tips on how to interact with police officers and to mitigate your chances of being found guilty of a crime if you are searched.
First: Always be courteous to a police officer. Police officers have a hard job. They work long hours and they are always at risk of being harmed in the line of duty. You may feel that it is a hassle that the officer is pulling you over. It may interfere with your day or prevent you from getting where you want to go on time, but not being courteous will only extend the stop. Second: Being courteous doesn't mean give up your rights. No matter what happens, do not consent to a search and do not answer any question the officer is asking in terms of his or her investigation. An officer can ask you a question such as, "How are you doing tonight?" or "Can I have your license and registration please?" or can chit chat with you about the weather. Go ahead and say, "Fine," or "I can't wait for more rain," and make sure you give them your license and registration. However, once an officer asks you a question such as, "Do you know how fast you were driving," or " How much did you have to drink tonight?" they have stopped chit-chatting and have begun an investigation. Under your Fifth Amendment right to not incriminate yourself, you don't have to answer those questions. You can say something to the effect of, "I invoke my fifth amendment right to remain silent; and I'd like to talk to my lawyer." This may make the police officer angry, but he or she is angry because you're making their job harder; don't take it personally. They can't arrest you simply because you refuse to talk to them. Similarly, they will ask you if it's okay if they search you. Simply say to them that they cannot and that you refuse to give them consent to search. This does not give them cause to search you. What it does is protect you later in court if the officer searched you and did not have probable cause to do so. Under the Fourth Amendment to the US Constitution, you have a right to be free from unreasonable search and seizure. This means that officers can't search you without a warrant or unless a warrantless exception exists. If you give them consent to search you, they don't need a warrant. They will most likely be angry, because you're making their job harder. And they will search you anyway. If they do try to search your wallet, purse, jeans, vehicle, home, etc... do not stop them or resist. Simply iterate that you do not consent to the search. Anything they find as the result of an illegal search can't be used against you in a trial. I was once a deputy public defender. So, any comments I make should be taken with that bias in mind. In my opinion, a deputy public defender is as good an attorney as any other attorney. If you qualify for public defender services, here are the pros and cons using their services.
Pro: They're free or low cost. As a Deputy Public Defender for Fresno County, I was able to get plea agreements for my clients that were as good or better than the deals private attorneys in the area got for their clients. The difference was, my clients didn't have to pay $5000, or $10000 for my services. And I was getting the same deals my colleagues in the Public Defender's Office were getting. Con: As a Deputy PD I had a case load of 300 clients. Most likely, your deputy public defender will have a case load of 100-150 clients. This could mean less individualized attention and an incentive to settle cases rather than take them to trial. However, the attorneys I know that were the hungriest to go to trial were my colleagues, and we would never counsel our clients to accept a plea if we didn't think it was in the client's best interest. In fact, there were many times when our clients would accept a plea deal from the prosecutor and we would have to state on the record that the plea was being made against the advice of counsel. In the end, a deputy public defender is just like any other attorney. You should take the following steps to ensure your attorney is giving you the correct advice and serving you well: 1. Talk with your attorney and be truthful with them. Anything you say is protected by attorney-client privilege and lying to your attorney never helps your case. 2. Get a second opinion. If you are represented by a deputy public defender, you can still talk to a private attorney. Most allow a free initial consultation. If you are worried about your case or how the attorney is handling it, you can always talk to a private attorney to see if the public defender is handling your case correctly. If you are in court and have a question and want to get the second opinion of another attorney, you can ask your public defender to have one of his or her colleagues talk to you. 3. Keep in contact with your attorney. Call your attorney often to keep updated with the case. This will ensure that you are a high priority no matter what other cases the attorney may have on his or her docket. 4. Remember, if at any time you feel your attorney is not serving your needs, you can fire your attorney and hire a different attorney. You’ve been arrested, or you’ve received a notice to appear in court. Now what? You’re probably asking yourself, “Do I even need an attorney? I mean, I have a right to represent myself in court. Why can’t I just represent myself and save the money?” It’s a question I’ve been asked a lot. The answer to that question comes down to what an attorney can do for you. An attorney brings several things to the table, most notably his or her knowledge, expertise and relationships.
Knowledge We’ve all seen My Cousin Vinnie and other shows in which an inexperienced attorney gets tripped up in court over some procedural issue and their excuse is that they never learned that in law school. So what exactly did they learn in law school? Supposedly, how to think like a lawyer. An attorney spends three years reading things called “fact patterns” and learning how to apply the law to those fact patterns to represent a client. What is a fact pattern? Basically, it’s your story. When you go to an attorney and tell them your story, the attorney is making notes based on what laws can be applied to your story. Say you’ve been pulled over and the police searched your car, the conversation could go something like this: “Well, I didn’t think I was speeding, but suddenly I saw the red lights flashing behind me…” (The attorney is thinking: 4th Amendment challenge to illegal detention) “Then when the officer came up to me, he asked me if he could search my vehicle. I told him no, but he told me to get out of the car, arrested me and he searched it anyway.” (4th Amendment search and seizure violation, 4th amendment illegal detention, no consent to search, was there a warrant to arrest and/or search? Did one of the warrantless exceptions to search and seizure apply? Arizona v. Gant says that an officer may search a person’s vehicle incident to arrest only if they searching for evidence of the crime for which the person was arrested, or if the person arrested might gain access to the passenger compartment of the vehicle. File a 1538.5 Motion to Suppress.) “The officer found an ounce of pot in my friend’s bag. He didn’t read me my rights, but asked me if I had given my friend the pot.” ( 5th Amendment Miranda violation) And that’s just what the attorney is thinking from the story you tell them. They will apply the same type of reasoning to the police report they receive from the district attorney. An attorney also has knowledge of court procedure and evidence, admitting evidence, evaluating how evidence can harm or help your case, preventing evidence from being admitted against you if it was obtained illegally, direct and cross examination, how a prosecutor will try the case, how a judge will most likely rule on certain motions and objections, whether it is better to take a case to trial or negotiate to plead guilty to a lesser charge, how to write motions, how to file motions, what motions to file, etc. If you decide to represent yourself, and you haven’t gone to law school, realize that everything you are researching and learning is already in the knowledge base of a good attorney, and that an attorney has been trained on how to apply the law and facts of the case to your advantage. Experience Not only does an attorney have the knowledge, they also have been practicing the use of that knowledge. It’s one thing to know how a piano works, you hit the keys and the hammer hits the strings, but it’s another thing to be able to play Beethoven. That takes practice. The same thing goes with knowing how to conduct a criminal defense. You may know that you can make objections and that the court can sustain or overrule those objections, but it’s another thing to make the objections at the right times for the right reasons and to know how not to offend the court. Relationships "Know the enemy and know thyself, and in a hundred battles, you will never be in peril." -Sun Tzu A good attorney knows the prosecutor, the judge presiding over your case, and any expert witnesses needed to aid in your defense. Your attorney's relationship with these people will have an impact on your case, especially what tactics and strategy are best used. The attorney knows what kind of deals a prosecutor will agree to and what reasoning will bring a prosecutor to a better solution. The attorney knows what types of sentences a judge will hand out and what will or will not offend a judge. Cost Balancing all of this out is the cost associated with an attorney. Even what you may think of as a simple matter, a DUI, a petty theft, a domestic violence case, can cost you anywhere from $50 to $300 an hour depending on the attorney. Why not save that money? After all, an attorney may not be able to keep you out of jail. An attorney may not be able to get your charge reduced, and you may lose at trial, or on appeal. What hiring an attorney does is give you the best chance at getting your best possible outcome. An arrest, a trial and a conviction will affect your life in more ways than just the fine and loss of liberty. Among other things, a trial and court appearances take time away from work and family; an arrest and conviction can have negative consequences for current or future employment; for those persons who are undocumented or legal permanent residents, a criminal conviction could have negative immigration consequences. Hiring an attorney will give you the best chance of mitigating the consequences of an arrest and subsequent contacts with the criminal courts. |
AuthorJason Tauches is an attorney and writer who lives in Massachusetts. Archives
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