Sacramento Criminal Defense Lawyer Blog

A recent decision by the U.S. Ninth Circuit Court of Appeals issues a warning to prosecutors who use sarcasm in their closing arguments. The judges determined that the prosecutor's statements "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings," and therefore required the case to be retried.

U.S. v. Sanchez concerns the arrest in 2008 of Arturo Sanchez, a U.S. citizen who was found by border police to have 64 pounds of cocaine in his vehicle. Sanchez said that he was paid to carry the drugs into the U.S. but claimed that he did so only because Mexican drug traffickers had threatened to harm his family if he didn't help them.

At trial, the prosecutor in his rebuttal to the defense attorney's closing argument said sarcastically to jurors, "[W]hy don't we send a memo to all drug traffickers" saying "when you hire someone to drive a load, tell them [to say] that they were forced to do it. . . . [T]hey'll get away with it if they just say their family was threatened."

The appellate court decided this statement was improper because it suggested to jurors that finding Sanchez not guilty would send the message that drug mules could avoid prosecution if they claimed they were merely trying to protect their families. The prosecutor's implication, the court said, was that Sanchez had to be convicted to send the "right" message.

Such an argument, however, violates the rules of trial procedure. When determining whether a defendant is guilty or not guilty, jurors are supposed to consider only the facts of each case, the relevant laws, and instructions given by the judge. The implications of conviction or acquittal - such as any message that might be sent to people considering criminal activity - should remain outside the scope of jurors' deliberations.

As stated above, Sanchez was not acquitted by this ruling. Instead, he faces a new trial, in which jurors will consider the facts of the case without prejudicial comments by prosecutors.

Alternative sentencing programs allow people convicted of crimes to participate in programs that attempt to alter behavior patterns and enhance skills and therefore reduce the likelihood of committing crimes in the future. Though each program has its own way of doing things, typically a judge will tell the convicted person that he can avoid going to jail if he fulfills all of the program requirements, such as counseling, community service, and testing. Failure to meet these requirements will result in expulsion from the program and imposition of the original jail sentence.

Sacramento County has a new alternative sentencing program called Ascend. It is like other programs in that it offers something different - and hopefully more beneficial - than typical jail sentences. The Ascend program is available for certain misdemeanor cases - determined by the judge - and provides an array of self-improvement activities, such as community service, career counseling, and daily monitoring.

What's different about Ascend is that it is funded by program participants rather than the county or state. Because the program's eight three-hour classes cost $500, not everyone will be able to take part. Organizers hope, however, that as the program shows positive results, funding can be obtained to allow some people to participate at lower cost.

To put this in context, drug court - used extensively in Sacramento, Placer, and Yolo Counties - is a well established example of alternative sentencing. There are a couple different options, but the basic structure is participation in a drug treatment program rather than being sentenced to jail. The idea behind these programs is that helping people beat their drug addiction makes more sense than locking them up. The hope is that this results in reduced drug use and less money spent on incarceration. Unlike Ascend, however, drug court programs are government funded.

If you've been charged with a misdemeanor, one of the advantages of hiring a criminal defense lawyer is that in most cases your attorney can appear for you in court and represent your interests without you being present. Whether you appear depends on the circumstances of the alleged crime and what is being decided at each court date. You and your attorney should determine the best course of action. But having this option allows you to go to work, attend to the needs of your family, and take care of the other issues that we all face on a daily basis.

Having your attorney appear for you for misdemeanor charges can be advantageous if you've been arrested in Sacramento, Yolo, or Placer counties but live elsewhere. For example, we've had clients - including some from outside California - who were arrested while visiting the Sacramento region. They contacted us after they returned home, gave us permission to act on their behalf, and let us handle their defense without their having to return to the area.

It's important to keep in mind, however, that if your misdemeanor case goes to trial, you are well advised to appear in court during the trial, even though your are not required to do so. Again, discuss this with your attorney.

In addition, if you've been charged with a felony, you are required to appear at all of your court dates.

Every profession has its own language, and the legal field is no exception. Whether it's corporate law, estate planning, contract law, or criminal defense, each area of the law uses specific terminology for concepts, procedures, and policies. For people who don't practice law on a daily basis, these unfamiliar terms can cause confusion and anxiety.

When you hire a criminal lawyer, you are of course relying on that person's experience and expertise to provide you with an effective defense. But you are also relying on her to explain the legal process to you in comprehensible language. And even the most basic of items can be given a name that causes confusion to someone not familiar with the legal system.

One example is what is called "discovery." You might hear your attorney say, "I received the discovery from the DA's office and need you to review it." What does this mean?

In general terms, discovery refers to the documents pertaining to a case. In criminal cases, discovery can include police reports, audio and video recordings, laboratory reports, warrants, probation reports, and records of past criminal activity, if any.

One of your rights as a defendant is to receive copies of all discovery documents from the DA so that you are aware of the evidence against you. It's critical that you review the discovery with your attorney to build the best defense possible.

When a person is arrested, it is not a certainty that criminal charges will be filed. The police department of each city (and at the county level the sheriff's department) has the authority to investigate crimes and make arrests. But it is the district attorney's office in each county that actually files criminal charges. This placement of authority in separate agencies serves to protect us against abuses that can arise when government power is concentrated.

In certain cases, letters of reference can be useful in attempting to persuade the district attorney to not press charges, or to dismiss charges that have already been filed. The circumstances that would merit these sorts of letters are varied, but an experienced criminal defense attorney will be able to advise you.

To illustrate, here's an example similar to cases we've defended. One night a man in his early twenties - call him Michael - takes his buddies out joyriding in his car. Michael pulls up to a liquor store and waits outside while his friends go inside. All of a sudden he sees them running from the store with bottles of alcohol that they've just stolen. As Michael's friends climb in the car, he panics and drives away at high speed. The entire incident is recorded by a security camera, however, and within a few days everyone involved is arrested.

Two years go by without the district attorney filing any charges. But then Michael receives notification that he is being charged with theft, conspiracy, and aiding and abetting.

This is where letters of reference can be helpful.

Continue reading "Letters of Reference Requesting Dismissal of Charges" »

A ruling by the California State Appellate Court for the Second District confirms that expungements may be granted for those people who violated the terms of their probation so long as their conduct since that time demonstrates that they have reformed and become contributing members of society.

The defendant in this case, Myrle Dennis McLernon, had filed a 1203.4 motion seeking expungement of his criminal record, which means that his conviction would be changed to a dismissal. (See our post from September 25, 2009, for a detailed look at the expungement process.) In most instances getting an expungement requires a person to complete probation, pay all fines and restitution, not spend time in state prison for the offense, and not currently have any criminal charges pending.

But the law also allows for an expungement if the terms of probation were violated but the court determines that expunging the record would "serve the interests of justice." What this means is that the defendant has the opportunity to submit evidence demonstrating how he/she has become a good citizen and turned away from crime.

In People v. McLernon, though, the Attorney General's Office put forward the fanciful argument that this evidence of changed behavior should only come from the period of probation. In other words, what the defendant did after probation ended should not be considered.

The appellate court dismissed this argument, saying that nothing in the law precludes courts from taking into account actions after the probation period has ended. From our perspective, this is the only position that makes sense, since a change in behavior for the good would in most cases come after the time when probation was violated.

The bottom line is this: a person who wants to expunge his criminal record but failed to complete probation can still have his attorney file a 1203.4 motion and present accompanying evidence of that person's reformed life and commitment to the responsibilities of citizenship. The judge will then weigh the evidence and determine whether the interests of justice call for an expungement of the record.

Obviously, hiring an attorney with experience with expungements is crucial if the motion is to be successful, particularly when there are issues of probation violation.

While courtroom dramas on television and in the movies give the impression that most criminal legal cases end up in trial before a judge and jury, the reality is that the vast majority - over ninety percent - are resolved through negotiation. These negotiations, which take place between the defense attorney, prosecutor, and judge, result in a plea bargain, a judgment that falls somewhere between the prosecutor's desire for a conviction on all charges and the defendant's desire for a dismissal or finding of not guilty. District attorney's offices and judges are motivated to negotiate plea bargains because there aren't enough courtrooms, prosecutors, judges, and jurors to have all cases go to trial. Your defense lawyer has to be able to use this to get you the best possible deal.

A plea bargain can take many forms depending on the alleged crime, evidence, and defendant's criminal history. It might be that a charge is dropped from a felony to a misdemeanor or one charge is dropped altogether if there are multiple charges. It could also involve reduced jail time, deferred entry of judgment, jail alternatives, residential treatment, ankle monitoring or work project.

During negotiation, the defense attorney points out weak evidence, questionable aspects of the investigation and arrest, as well as case law that contradicts the prosecution's argument and supports the defendant's, all with the purpose of having the prosecution question the strength of the case. The defense counsel also points to mitigating factors such as a minimal criminal history. The best outcome is to have the charges dismissed altogether. But when that's not possible, the goal is to get penalties reduced to the absolute lowest level that the DA is willing to accept.

The process of negotiating a plea bargain highlights the importance of having an experienced and skilled defense attorney. To get the best deal for her client, the defense attorney needs to have an up-to-date understanding of the law, be familiar with past actions of prosecutors and judges, and possess superior negotiating skills. From our perspective, it's advantageous to have a defense attorney with past experience as a prosecutor, and thus an understanding of how the DA's office approaches the plea bargain process. This "inside" information is valuable negotiating power.

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 defense lawyers.

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