Sacramento Criminal Defense Lawyer Blog

The First Appellate Court of California last week issued a decision that should be heeded by any person facing criminal charges and considering a police offer to reduce or dismiss those charges in exchange for cooperation in an investigation. In short, the court said that only the district attorney has the authority to reduce or dismiss charges. Any defendant offered a deal by police to "make the charges go away" has to ask for explicit confirmation from the D.A.'s office before agreeing to cooperate. Without such approval, a cooperation agreement lacks authority and leaves the defendant with little recourse if the D.A. later decides to press charges.

The appellate court's decision had two parts. First, it said that, though little state case law exists on cooperation agreements, federal case law clearly says that agreements between law enforcement and defendants are not binding without the approval of prosecutors. Thus at the local level, the authority to bring charges against a defendant rests solely with the district attorney's office. To decide otherwise, the court argued, would raise the possibility that a junior member of a police force could on her own negotiate dismissal of charges in exchange for assistance with an investigation.

The second part of the court's decision dealt with constitutional issues. A cooperation agreement could be enforceable without prior consent of the district attorney only if there had been a violation of the defendant's due process rights, such as incriminating himself or forgoing the right to counsel. When there is no "detrimental reliance" involving a constitutional consequence, the cooperation agreement need not be enforced.

Obviously, the problem here is that few defendants are aware of the distinction between police and prosecutor (they're both looked at as part of one law enforcement team) and hardly any defendants will be aware of this appellate court decision. What we can end up with is some police officers taking advantage of this lack of understanding on the part of defendants and convincing them to cooperate without explaining the need for D.A. approval of reduction of charges. And according to this decision, the defendants will have few if any means to enforce a cooperation agreement if the D.A. balks.

Thus, the First Appellate Court's decision is a cautionary tale with a clear moral: If the police offer you a deal in exchange for cooperation, the first thing to do is demand to speak with a lawyer, and the second is demand confirmation from the district attorney's office. Without that explicit affirmation from prosecutors, a deal to help with an investigation in exchange for a shorter sentence or reduced charges is no deal at all.

Cases of this kind require representation by a quality criminal defense attorney. If you have questions about a cooperation agreement, call the Law Office of Nancy King for a free and confidential consultation.

People v. C.S.A.., Court of Appeal of the State of California, First Appellate District

Last week the California Supreme Court gave its approval to arrest warrants that identify a suspect by DNA profile alone. Federal and state laws allow so-called 'John Doe' warrants, which identify a suspect by means other than a name. The question before the Court was whether a DNA profile satisfies the 'particularity' requirement, meaning that it identifies a suspect with sufficient clarity. The Court ruled that the unique quality of each person's DNA serves as an adequately precise descriptor of a suspect and thus is valid for arrest warrants.

The case involved Paul Robinson, who in 2000 was arrested in Sacramento County for a sexual assault that took place in 1994. The Sacramento D.A.'s office had issued an arrest warrant for the case four days before the end of the six-year statute of limitations period. Instead of the suspect's name, the warrant listed his DNA profile, which came from evidence at the crime scene. A few weeks later, an amended arrest warrant was issued, this time with the suspect's name, which had been obtained when the crime scene DNA evidence matched a profile in the state's DNA and Forensic Identification Data Base. Robinson was arrested, subsequently found guilty in Sacramento Superior Court and sentenced to state prison.

Robinson appealed his conviction on three grounds: 1. The original 'John Doe' arrest warrant did not constitute a valid commencement of prosecution within the statute of limitations period; 2. His DNA profile did not satisfy the 'particularity' requirement of an arrest warrant; 3. The police should not have been able to use his DNA profile in their investigation since it was obtained from an invalid application of the DNA and Forensic Identification Data Base and Data Bank Act while he was incarcerated for another offence in 1999.

The Supreme Court's majority disagreed with Robinson on all three issues. First, it affirmed that a 'John Doe' arrest warrant counts as the beginning of a prosecution and thus falls within the statute of limitations. Second, use of a DNA profile to identify a suspect on an arrest warrant is valid. The Court stated that, "For purposes of the Fourth Amendment, we conclude that the arrest warrant in question, which described the defendant by his 13-loci DNA profile and included an explanation that the profile had a random match probability such that there was essentially no chance of its being duplicated in the human population except in the case of genetically identical sibling, complied with the mandate of our federal Constitution that the person seized be described with particularity." Finally, the Court said that though the blood draw that placed Robinson's information in the DNA data base violated provisions of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, law enforcement personnel had made good faith attempts to comply with the law. The DNA evidence, therefore, need not be excluded.

The Court's decision does not mean that there is agreement about this issue. The two justices who dissented in the Robinson case argued that allowing 'John Doe' arrest warrants based on DNA evidence merely allows law enforcement to improperly extend the statute of limitations on a case. We'll have to watch the U.S. Supreme Court to see if it takes up this case or others like it.

If you have questions about arrest warrants, call the Law Office of Nancy King at 916-442-1200 for a free and confidential consultation.

The People v. Paul Eugene Robinson, Supreme Court of California, January 25, 2010

The Ninth Federal Circuit Court of Appeals issued a decision last month that sets important limits on the use of Tasers by law enforcement. The court's decision restricts the use of Tasers to situations in which there exists an "immediate threat to the safety of the officers or others." In other words, depending on the circumstances, non-lethal force can still be excessive force.

The ruling came as a result of a 2005 confrontation between Carl Bryan and City of Coronado Police Officer Brian McPherson. McPherson, who was stationed at an intersection checking for seat belt law compliance, saw that Bryan was not wearing a seat belt and ordered him to pull his vehicle over. Bryan became agitated because (1) he had received a speeding ticket earlier that morning, and (2) he had been locked out of his house and was wearing only boxers and shoes. (Click on the link below to read the court's decision and get all the details.) McPherson claims that after some back-and-forth Bryan, who was standing about 20 feet away, took a step toward him. Bryan claims that he did not. McPherson nonetheless fired his Taser at Bryan, who suffered temporary seizure and fell face forward, breaking four front teeth.

The court stated that though categorized as non-lethal force, and thus less severe than firearms, Tasers are nonetheless "more invasive" and capable of inflicting greater pain and harm than other methods, such as pepper spray. The X26 Taser used by McPherson shoots steel barbs that deliver a 1200-volt charge that causes extreme pain and temporary paralysis. Tasers can even cause death; eight people have died in the Sacramento region since 2003 after being stunned with Tasers by law enforcement.

In the incident between Bryan and McPherson, the court determined that use of the Taser violated Bryan's Fourth Amendment protection against excessive use of force, which arises from its prohibition of unreasonable searches. The court went on to say that while use of Tasers in some situations is warranted to prevent the need to employ lethal force, many confrontations, including the one between Bryan and McPherson, can be defused through less forceful means.

The bottom line is that the Ninth Circuit Court has made it clear that non-lethal force can still be excessive force in some instances. The decision is effective throughout the Ninth Circuit Court region of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is possible that the U.S. Supreme Court could take up the issue if it receives requests for appeal on this case or others like it.

If you have questions about his topic, call the Law Office of Nancy King.

Bryan v. McPherson, U.S. Ninth Circuit Court of Appeals, December 28, 2009

"Deaths Following Use Of Tasers," Sacramento Bee, January 6, 2010

Among the most common interactions between citizens and police are traffic stops. Many of these are straightforward: a driver is speeding or doesn't heed a traffic signal and receives a citation from a police, sheriff, or CHP officer. Though the driver is irritated and out a few hundred dollars, nothing more serious results.

Some stops go beyond this, though, with charges of more serious crimes. This is where knowledge of probable cause and rules of search and seizure is so important.

Let's say that while driving home one night you're pulled over by your local police. Because of constitutional protections, police can't pull you over, detain you, or question you just because they feel like it. For an officer to initiate a traffic stop, he has to have probable cause, or some evidence that a crime has been, or is being, committed. (See our October 28 post for a general discussion of probable cause.) That means that he has to see you committing a traffic violation - e.g., driving too fast, weaving, rolling through a stop sign - or observe that some equipment on your car, like a brake light, isn't working.

Assume that the police do have probable cause to pull you over - your left front headlight is out - and during the course of this traffic stop, the officer asks for permission to search the car. Do you have to say yes? The short answer is, NO, and we advise clients to politely but clearly state something like, "I do not give my consent to a search of my vehicle." When police lack probable cause to search your vehicle, they must let you go on your way. Moreover, the officer is not allowed to hold your refusal against you.

Under some circumstances, though, police may conduct a vehicle search without your permission and without a warrant.

Though the Fourth Amendment appears to require that police obtain a warrant to conduct a search, the reality is not so simple. A traffic stop is one of those times when police may, depending on the circumstances, conduct a warrantless search.

The law is complex and ever changing on this issue, but there are some key guidelines to keep in mind. In Carroll v. United States (1925) the U.S. Supreme Court established the principle that police may conduct warrantless searches of motor vehicles if probable cause exists that evidence of a crime is present. The justification for this is that since motor vehicles are mobile, evidence could be carried away and disposed of if police were required to go off and ask a judge for a warrant. In California v. Acevedo (1991), the Court extended the scope of searches to include containers in a vehicle, again because the evidence in the container could be driven away and disposed of. Some limits on warrantless searches were articulated by the Court in Arizona v. Gant (2009) when it ruled that once a person has been arrested and moved away from the vehicle, police may not initiate a search unless that search pertains to evidence related to the crime for which the person was arrested. (See our detailed discussion of Arizona v. Gant in our August 23 post.)

The principles to keep in mind are (1) any warrantless search of a vehicle requires probable cause, and (2) without probable cause police must obtain your permission to conduct a search.

If you have questions or concerns about a traffic stop conducted by the police, sheriff, or CHP, call the Law Office of Nancy King.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - Fourth Amendment to the Constitution of the United States

Probable cause is among the most important legal protections U.S. citizens have against the exercise of government power. It is provided through the 4th Amendment because governments at all levels- national, state, and local - have great resources at their disposal to monitor people's activities, search their belongings, invade their residences, and deprive them of their liberty by arresting and jailing them. Citizens rely on the 4th Amendment to protect their privacy from government intrusion and their possessions from government seizure.

While the language of the 4th Amendment focuses on issuance of search warrants, probable cause comes into play in a variety of circumstances. One of the most common is when a police officer in the field suspects someone of engaging in criminal activity and must decide if probable cause exists to make an arrest.

Different definitions of probable cause have been articulated over the years, but they boil down to this: Can a reasonable person deduce from the evidence at hand that a crime has been or is being committed. Though similar to the notion of reasonable suspicion, which pertains to brief detention and questioning by police, probable cause is a more demanding standard, requiring more evidence and greater suspicion of wrongdoing. (See the October 22 post for a discussion of reasonable suspicion)

The difference between probable cause and reasonable suspicion in questioning and arrest can be illustrated this way. Let's say there's been a robbery at a local electronics store. Police may briefly detain and question a person if he is driving a car matching the description of a vehicle seen driving away at high speed from the store at the time of the robbery. Reasonable suspicion is satisfied. But more is needed for probable cause to make an arrest. One way would be for police to verify ownership of the car. If it is not registered to the person driving it, that is a step toward meeting the standard of probable cause. It doesn't prove guilt, but it certainly heightens suspicion. Next, police might look to the behavior of the person driving the car. If that person can't explain clearly where he's been or where's he's going, probable cause is closer to being met. Police, in this example, might also see boxes of what appear to be cell phones and Blu-ray disk players in the back seat. These facts taken together would most likely be enough to satisfy the standard of probable cause and allow police to make an arrest. It doesn't mean that the suspect is guilty; it means that sufficient evidence exists for the government to begin the process of filing formal criminal charges.

Continue reading "Probable Cause" »

As a follow-up to our October 9 post in which we explained the concept of reasonable doubt, today we look at reasonable suspicion. Though the words suspicion and doubt have related definitions in everyday usage, they have vastly different meanings and applications in criminal law when linked with the word reasonable.

Reasonable suspicion derives from the Fourth Amendment's right of the people to be free from unreasonable searches and seizures and pertains to law enforcement's ability to detain, question, or frisk a suspected criminal. A police officer must have more than a hunch. The standard is that a reasonable person looking at all the evidence believes that it is likely that the suspect has committed, or will soon commit, a crime.

What does this mean in practical terms? Here are a few examples. A person could be briefly detained and questioned by police if she/he: matches the physical description of a suspect; is driving the same make and color car that was involved in a crime; is seen running from the vicinity of a crime; is walking down the street with a handgun; or is seen on a surveillance camera leaving a store just after goods were stolen.

Many rules exist that complicate the matter, particularly related to frisking of a suspect, since frisking constitutes such an extreme invasion of privacy. For example, police may frisk a person whose clothing shows bulges that look like hidden weapons. They may not, however, frisk people for the mere suspicion of possessing drugs.

The detention and questioning of suspects has become known as a Terry Stop, because of the Supreme Court's ruling in Terry v. Ohio (1968), in which the Court laid down the principles of reasonable suspicion. The key thing to keep in mind is that each situation is different. Reasonable suspicion derives from the complete set of circumstances that law enforcement personnel encounter. If you have questions about an instance in which you or someone you know was detained and questioned by the police, contact the Law Office of Nancy King.

Our next post will cover probable cause, the standard required for police to obtain a warrant, conduct a search, or make an arrest.

Yesterday's post summarized newly passed California state law AB 91, which establishes pilot programs in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. Today's post explains why we think this new law should be challenged as unconstitutional. While we're sure that supporters of AB 91 are well intentioned and desire only to curtail drunk driving, we nonetheless believe that the law is a violation of the equal protection clause of the 14th Amendment.

Here is our argument: It is one thing for the state to set up general parameters for programs and then let localities decide for themselves the best means of implementation; it is another, and we think untenable, matter for the state to impose harsher penalties on the residents of four counties in the state and leave the penalties for residents of the rest of the counties unchanged. AB 91's IID requirement for Sacramento, Los Angeles, Alameda, and Tulare counties imposes just this sort of inequitable system. Calling it a pilot program doesn't justify or validate the uneven terms of punishment. What's to keep the legislature from passing a law mandating that people living in northern California automatically lose all driving privileges for 15 years after a first-time DUI conviction? Nothing except common sense (which the legislature often lacks) if AB 91 is allowed to stand.

Again, we support programs that reduce not just the number of DUI convictions but also the number of drunk drivers on the road, as long as those programs do not violate our rights granted by the U.S. Constitution. We see this law, no matter how well intentioned, as a violation of the 14th Amendment's promise of equal protection under the law.

We would rather see discretion left with the courts or even a statewide program that gives people convicted of DUI the option of having the IID installed on their vehicles in lieu of a license suspension. Many people lose their jobs when their driver's licenses are suspended as a result of a DUI conviction. The IID would be a good alternative that would keep people from driving while intoxicated, allow them to keep their jobs, and remain productive members of society.

Text of AB 91

We're putting the finishing touches on a post stating our concerns about AB 91, the new California law requiring ignition interlock devices on vehicles operated by DUI offenders, signed yesterday by Governor Schwarzenegger. In a nutshell, our reservations deal with what we see as the law's violation of citizens' 14th Amendment equal protection rights. In the meantime, we're providing this summary of the law's provisions.

AB 91 does nothing to change the current system of license suspensions and other penalties for DUI convictions. It establishes a pilot program in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. This test program begins July 1, 2010, and expires on January 1, 2016, unless the legislature acts to renew it and possibly expand it to the rest of the state.

People convicted of DUI (California Vehicle Code 23152) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 5 months
Second offense - 12 months
Third offense - 24 months
Fourth offense - 36 months

People convicted of DUI and causing injury to another person (California Vehicle Code 23153) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 12 months
Second offense - 24 months
Third offense - 36 months
Fourth offense - 48 months

AB 91 requires that DUI offenders pay for the approximately $75 installation cost of the IIDs and $50 monthly monitoring expense unless they meet these criteria:
100% of the federal poverty level or less - pay 10% of the cost
101 to 200% of the federal poverty level - pay 25% of the cost
201 to 300% of the federal poverty level - pay 50% of the cost

Continue reading "AB 91: California's New DUI Law Requiring Ignition Interlock Devices" »

Since Roman Polanksi was arrested in Switzerland two weeks ago, the airwaves, print pages, and blogosphere have been inundated with people voicing either their pleas for Polanski's release or stating their disgust at his crime and satisfaction that he might wind up behind bars. Though this is a criminal defense blog, we feel the need to add to the chorus voicing support for Polanski's extradition.

You're probably familiar with the details, but here is a brief summary. In 1977, Polanski was arrested in Los Angeles for plying a 13 year-old girl with alcohol and drugs and then raping her. He agreed to plead guilty to a lesser charge of unlawful intercourse with a minor and was given a 42-day jail sentence, to be served after completing a film under production at the time. After finishing the project, though, he promptly skipped off to France, where he has citizenship, and remained free for the next 32 years. He was arrest when he traveled to Switzerland to receive a lifetime achievement award at a film festival.

To us, the issue is simple and rests on the constitutional guarantee of equal treatment under the law. Just as the poor, marginalized, and powerless of our society should not be deprived of their constitutional protections when faced with criminal charges, the wealthy, famous, politically powerful, and social elite should not be granted preferential treatment.

A number of entertainment industry titans have said that Polanski should be set free because - pick one - the incident was a "mistake" that happened a long time ago, it wasn't actually a rape, attendees at film festivals should be free from the threat of arrest, and artistic talent trumps culpability for criminal acts.

We are not persuaded. Equal treatment under the law means just that. Everyone gets treated the same. The most disadvantaged person in our society must have the same privileges and immunities as the most powerful. Polanski pled guilty. He needs to face the consequences. End of story.

A recent ruling by the U. S. Ninth Circuit Court of Appeals brings together federal agents, computer data files, Major League Baseball players, and steroids in a fascinating defense of privacy against unreasonable government searches. Though the court's decision is tailored only to federal law enforcement, it does provide a glimpse of rules that state and local police may be subject to in the future.

In brief, the Ninth Circuit Court's decision in United States v. Comprehensive Drug Testing, Inc. (U.S. v. CDT) says this: (1) a warrant to search through a computer database does not grant federal agents the authority to open all files in that database; (2) federal judges in the Ninth Circuit District granting future search warrants of this type must require federal agents to waive the "plain view" rule as it applies to electronic records; (3) personnel who are not law enforcement agents must review the files in the seized database and then pass along to federal agents information related to the scope of the search warrant.

At this point, only federal warrants in the district covered by the court's decision (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) must abide by these rules.

Here's the background: in 2003, federal agents obtained computer data as part of an investigation into the use of performance enhancing drugs by Major League Baseball players. Federal agents were searching for information on ten players in particular, but during their review of the computer files they came across evidence that incriminated other people as well.

Continue reading "The Fourth Amendment, Search Warrants, and Electronic Evidence" »

A central tenet of the U.S. criminal justice system is presumption of innocence, a safeguard of the rights of American citizens since the nation's founding. In today's media saturated world, however, where information zips from terminal to terminal in seconds and people believe they know the truth because they have read something online or seen something on TV, it's important to remind ourselves of the importance of the presumption of innocence, which places the burden on state prosecutors to prove guilt, not on the accused to demonstrate innocence.

Considering someone innocent until proven guilty is actually not explicitly stated in the U.S. Constitution. Instead, it is implied in various amendments such as the Fourth Amendment prohibition against unreasonable searches by the government, the Fifth Amendment guarantee that a person cannot be compelled to be a witness against himself, and the Sixth Amendment rights of the accused to confront witnesses against him and to have the assistance of legal counsel. Through court decisions and federal and state laws, presumption of innocence has been infused throughout our criminal justice system.

Of course, this presumption applies only to the government, in the persons of law enforcement and the judiciary. It does not apply to the news media and private citizens. When confronted with a crime, they are free, because of the First Amendment, to make any suppositions they desire about who did what to whom and why.

The problem is that often this speculation is based on incomplete and incorrect evidence. Law enforcement, prosecutors, and defense attorneys are sometimes precluded by court order from disclosing details of a live case, but usually they refuse to divulge information for the simple, essential purposes of protecting the privacy of people involved as well as preserving the integrity of the legal system as a whole. The fact is that when a criminal complaint is filed, it is often based on untested information: a witness who hasn't been subjected to cross-examination, a portion of an audiotape or videotape that hasn't been reviewed in total, an investigation that is incomplete.

Continue reading "Presumption of Innocence and Electronic Media" »

A U.S. Supreme Court decision delivered this past spring has forced states to review the circumstances when crime lab technicians are required to testify in court about their reports. While this ruling has generally been praised by criminal defense attorneys, it has resulted in some confusion as state courts interpret and apply it. In fact, the situation is so muddled in California at this point, that two different state appellate courts - one in Sacramento and one in Los Angeles - have come up with opposite rulings even though the cases they confront are nearly identical.

Here's the background: The U.S. Supreme Court in June delivered its opinion in Melendez-Diaz v. Massachusetts, a case that asked this question: Are crime lab reports akin to business records, factual documents that can be submitted into evidence without cross-examination of the preparer, or are they "testimonial" in nature, with the perspective and bias of any witness for the prosecution, and thus subject to the Sixth Amendment's guarantee that the accused can confront and cross-examine witnesses?

Criminal defense attorneys were pleased when the Court declared that crime lab reports were testimonial and that defendants had to be able to cross-examine lab personnel. This is critical because defense attorneys need the opportunity to question technicians on their overall expertise, as well the procedures used in the preparation of specific lab reports. Though most reports are factually accurate, some are faulty, and defendants and their lawyers need the opportunity to "confront" the government's witnesses.

While many states had allowed lab reports to be submitted into evidence as factual documents (like an accountant's audit, for example) without the testimony of the preparer, California already had the practice of providing defense lawyers the opportunity to cross-examine lab personnel. This was even discussed during oral arguments before the Supreme Court for Melendez-Diaz.

But an interesting repercussion of this decision has already arisen here in California. Two different California appellate courts this summer came up with opposite applications of the Melendez-Diaz ruling. In one case, a state appellate court in Los Angeles ruled that it was okay for a member of the coroner's staff to testify about the contents of a report even though that person had not actually done the analysis. In another case, a state appellate court in Sacramento made the opposite ruling, requiring the person who actually did the lab work and wrote the report to appear in court. This is clearly an issue headed to the state Supreme Court, since one of that court's roles is to ensure uniform application of the law through the state.

It is our view that it is critical to have the report writer in court to testify not only to the data the report contains but also to the processes used, the background and expertise of lab personnel, and even the maintenance procedures followed for lab equipment. Defendants - whether accused of DUI, drug possession, theft, murder, or any other crime - have the right to be certain that law enforcement has followed appropriate safeguards in the acquisition and analysis of evidence and that the data presented in reports is accurate.

Melendez-Diaz v. Massachusetts, U.S. Supreme Court
Oral Arguments for Melendez-Diaz v. Massachusetts
"Court Weighs Use of Crime Lab Reports at Trial," Associated Press, November 10, 2008
"California Appellate Courts Clash Over Coroner Testimony," Law.com, August 27, 2009

Over the last month here in Sacramento, we've witnessed two members of local law enforcement accused of DUI. In August, CHP arrested a Sacramento police officer for drunk driving, and just this past Sunday an off-duty Sacramento County deputy sheriff was arrested for driving under the influence of prescription medication and crashing her vehicle into a Starbuck's and injuring an 80-year old woman.

We bring up these incidents not to ridicule these officers. Rather, they are an important reminder that anyone can find himself in the position of these public servants: humbled and facing prosecution.

These incidents also illuminate the critical role of the defense attorney.

When people hear of incidents such as those described above, they have a mix of emotions but often feel deeply angry. They demand justice to right any wrongs and to punish the accused as examples to discourage others from doing the same thing.

But in our system we don't live by mob rule. Instead we live by the rule of law. We take the power to prosecute away from individual citizens and place it instead in the hands of the District Attorney's Office. Thus the deputy district attorney assigned to each case is law enforcement's advocate, looking at the evidence from that prosecutorial perspective.

To protect the rights of each person from the force of the larger society and the power of the government, our legal system, rooted in our Constitution, says that each of us has the right to a speedy trial, to confront witnesses against us, to be protected against unreasonable searches, and to not be deprived of life, liberty, or property without due process of law. And in addition to these enumerated rights, we have our legal tradition of presuming a person innocent until proven guilty.

That's where the defense lawyer comes in. Where the prosecutor looks at a case from the perspective of law enforcement, the defense attorney looks at it from the perspective of the accused. The defense attorney protects each defendant's rights. She makes sure that all relevant evidence and arguments are brought forward to explain the incident as the accused experienced it. Juries make final decisions about guilt and innocence and judges, if necessary, determine sentences. But a defense attorney is crucial to ensuring a fair and balanced interpretation of the facts of each case. Without defense counsel, justice cannot be served.

"Sacramento Police Officer Accused of DUI," August 18, 2009, KCRA.com
"Sacramento County Deputy in Crash Has Used Painkillers," September 9, 2009, Sacramento Bee

In yet another opinion that deals a blow to the rights of criminal defendants, the United States Supreme Court has eased some limits on police tactics to obtain incriminating statements after defendants have been appointed legal counsel.

The case of Montejo v. Louisiana involves the arrest of Jesse Montejo for the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights, and during interrogation by the police eventually admitted to committing the murder. At a subsequent hearing, a judge ordered that Montejo be appointed legal counsel since he could not afford to hire an attorney. Later that day, before Montejo had met with his attorney, police detectives convinced Montejo to accompany them on a search for the murder weapon. After again being apprised of his Miranda rights, Montejo went with the detectives. During that trip he wrote a letter apologizing to the victim's widow. After returning from the excursion, Montejo finally met with his attorney. Though Montejo's attorney objected, the letter of apology was used by prosecutors during trial. After being found guilty, Montejo was sentenced to death.

In subsequent appeals, Montejo argued that since he had not yet met with his court appointed counsel, the police should not have been permitted to talk with him and cajole him into going with them to locate evidence.

The Supreme Court disagreed, stating that Montejo's waiving of his Miranda rights allowed the police to talk with him and ask for his help in locating evidence. The mere appointment of counsel, the Court ruled, does not preclude police from attempting to gather evidence or obtain incriminating statements. The Court did say, though, that once a suspect invokes his/her right to counsel under Miranda, the police must cease interrogation without the presence of counsel.

This ruling highlights the necessity for citizens to closely protect their Fifth Amendment right against self-incrimination and Sixth Amendment right to legal counsel. When being questioned by the police for possible involvement in a crime, it is best to be prudent and say that you will not answer questions without a criminal defense lawyer present. As United States citizens, we are blessed to have our Natural Rights enshrined in our Constitution and embedded in our legal code. This ruling by the Supreme Court, however, provides police with more opportunity to extract incriminating evidence from citizens not familiar with the legal process.

Montejo v. Louisiana, U.S. Supreme Court
"The Supreme Court Moves to the Right, Perhaps Sharply to the Right," California Bar Journal, August 2009