Criminal Defense

November 11, 2022

Avoiding Holiday Lockup and Long-Term Effects

For many, the holidays are a time of togetherness and celebration. Regrettably, not everyone has the opportunity to enjoy those wonderful family dinners and city lights. Sometimes allegations of criminal activity get in the way of the festivities.

Arrests During the Holidays

As most people know, arrests do not drop off simply because the holidays are ahead. Instead of getting locked up and suffering other penalties, you can enjoy the joy of the season by staying out of trouble with the law. Some of the common reasons people get arrested during the holidays include the following:

Drinking and Driving: We all know there are ample prospects for partying between Thanksgiving and New Year’s Eve. But getting a DUI is no way to enhance your holiday joy! If you are stopped with a blood alcohol limit of .08 or higher, you are pretty much assured of a night in jail, with costly additional penalties as a bonus. Assuming you do not injure or kill anyone, it could be a relatively short stay, but additional consequences will last long beyond the night of the arrest. So use your head: don’t drink and drive!
Family Violence: Financial pressure, demands from extended family, and infuriating crowds everywhere you go — it can all get to be more than a little challenging. The stress of it all can lead to clashes among family members.
Airport Contraband: For those who travel during the holidays, be sure you do not bring anything that will get you in trouble with the TSA, and make sure you know the laws in any state you visit. TSA does not permit marijuana at all—so do not bring it on the plane. And guns are never allowed in carry-on luggage. Be careful what you pack.
Porch Pirating: With the increased online shopping during the holidays, porch pirates are ever tempted to steal merchandise, even during broad daylight. But with all the doorbell cameras out there, getting caught is easier than ever. Plus, law enforcement place dummy packages to bait thieves. So, whatever you do, stay off of strangers’ porches.
Shoplifting: For those who wish to boost their holiday haul without paying for the merchandise, there is a real risk of being seen by the many cameras around these days, not to mention undercover security personnel and others. Retail theft is a major problem during the holidays, and in California, it can result in significant jail time.

November 4, 2022

Free Speech in America

by David M. Boertje

Free speech in America is central to our democracy. But do Americans really understand this right and the very real limitations on speech? It is worth noting in these challenging times that when people choose to ignore the restrictions on free speech it could lead to legal woes.

Recent High-Profile Example

Alex Jones, who spent about a decade gushing falsehoods about the shooting at Sandy Hook Elementary School on his radio show, wound up being sued for the damage he caused to the survivors of the shooting. A jury sided with the plaintiffs, which resulted in Jones being ordered to pay hundreds of millions of dollars to the families of victims in a combination of compensatory and punitive damages. Jones argued that he was being prosecuted –and persecuted–simply for using his First Amendment right to free speech. The jury did not buy it. It is true that the First Amendment protects the right to express dissenting opinions, even when those opinions are flat-out wrong based on the facts, they are offensive, or they are cruel. However, it does not protect against defamatory speech. Sandy Hook families were able to launch civil charges against Jones for defamation, and the juries agreed that his words were not protected.

Some Speech is Not Protected by the First Amendment

In fact, there are several types of free speech that are not protected by the Constitution. These include:

Defamation and label;
Vandalism;
Criminal threats;
Child pornography;
Unlawful assembly;
Refusing to disperse if police direct one to;
Trespassing;
Obstruction of a law enforcement officer.

Hate Speech

Hate speech has been in the news a lot these days. There is actually no legal definition for hate speech, but most people recognize that it relates to any speech that is demeaning or insulting to a particular group that is based on sexual orientation, religion, race, disability, or gender. Speech directed toward specific subgroups like these is not protected by the first amendment in this country

Symbols

The Supreme Court has ruled that highly controversial actions such as burning an American flag are protected by the First Amendment, despite the fact that many in this country find such behavior to be detestable. On the other hand, it is unlawful to use a symbol as a threat to others. What about carrying a confederate flag or wearing a swastika if others feel threatened by those items? This is essentially a gray area, and each case is determined on its own merits and the level of threat involved. Continue reading

October 21, 2022

How Reliable is Eyewitness Testimony in Court?

by David M. Boertje

A reportedly upstanding member of the community swears they saw you commit a crime. How can you possibly defend yourself against an eyewitness account? Of course, any criminal charge is serious business; eyewitness testimony against you is never a good thing. The fact is, however, that eyewitness testimony may not be as iron-clad as you would imagine. A good defense attorney knows that there is a lot of research repudiating the trustworthiness of such testimony.

Can Eyewitness Testimony be Trusted?

Multiple studies over recent decades have revealed that the accuracy of eyewitness testimony in criminal trials leaves a lot to be desired. Regardless of how confident a given witness is, mistakes occur; it is just the nature of memory in human beings. Moreover, visual perceptions, when combined with memory, combine to make this type of testimony one of the very least reliable! The truth is that a significant number of wrongful convictions—proven to be erroneous through DNA and other evidence after the fact—were based primarily on eyewitness testimony. In one study, researchers discovered that over 70% of overturned convictions were originally based on eyewitness testimony, and in over 30% of those cases, there were multiple eyewitnesses whose testimony was demonstrably wrong.

Problems With Memory

Some may believe that memory is similar to a video recording, but this analogy could not be further from the truth. Remembering, according to renowned researchers, is more analogous to putting the pieces of a puzzle together. As a witness is questioned by law enforcement or attorneys, pieces of actual memories may be inadvertently conflated to match the questioner’s words and information, leading to inaccurate recollections. Myriad other factors can impact memory, including:

Minimal time frames in which to witness a crime;
A witness’s anxiety during the criminal event or when endeavoring to identify someone;
Disguises used by criminals;
Weapons wielded at the scene that distracted witnesses;
A lack of distinctive visual characteristics in the perpetrator;
Inadequate viewing time during the identification process.

The Loftus Study

One study examined memory errors and the conviction with which subjects held to their flawed recollections. For this research. subjects were told three true accounts and one false one about events that had occurred earlier in their lives. Relatives of the subjects provided particulars for the false story in order to make it more credible. About one-third of subjects believed the false event had actually transpired, despite it being wholly fictitious. These individuals honestly believed that they remembered an event that had never actually occurred. Continue reading

October 14, 2022

Why Provide a Defense in Cases of Atrocious Crimes?

by David M. Boertje

People often wonder why anyone would choose to defend individuals who are accused of the most appalling of crimes. Sure, it is reasonable that a strong defense ought to be mounted for minor incidents like smoking pot, illegal protesting, or maybe even something like shoplifting. But what about kidnapping, rape, or murder? Why should people accused of these kinds of monstrous crimes be protected with zealous efforts by criminal defense attorneys?

The Constitution

To begin with, the United States Constitution entitles everyone to an attorney and a defense. Period. These rights are not rescinded when the indictments make the public nauseous. In America, thank goodness, a prosecutor must prove a case beyond any reasonable doubt. This is a good thing on many fronts. Specifically, allegations and charges are oftentimes flat-out wrong. The presumption of innocence, along with other important principles, is cherished by every defendant—regardless of the nastiness of the crime in question.

Benefits for Everyone

And here is another point worth noting: The connection between government and governed is tenuous in terms of balance. When a strong defense is mounted, it pushes the prosecution toward a more accurate and unbiased push for justice. Despite the sentiments that compel the quest for guilt and vengeance, our justice system requires a rational and impartial look at the evidence of any given case. It demands that officials behave in transparent and conscientious ways and that they follow conventional techniques and practices. When just one step in the quest for justice is botched or manhandled, the promise of a judicial system that works for the people is lost—not just for a particular defendant—but for all of us.

It Beats Vigilantism

To be sure, atrocious crimes feed the furies of the public. If not for a principled pursuit of justice, communities might alternatively feel the need to mete out justice without the benefit of trial, judge, and jury. How much better, then, to provide the elements needed to seek the truth and deliver justice with temperance and dispassionate calm?

A System in Need of Repairs

Certainly, no one argues that the justice system in the United States is perfect—far from it. Suggested improvements have been tossed around for years, including examining the alternative justice courts, putting an end to cash bail systems, and providing more treatment programs to address addiction and mental health disorders. Undeniably, services to prepare convicts for an honest life outside of prison are lacking, and do not reduce recidivism rates to the degree we would like to see. But with all the discussions of potential improvements and adjustments to the system, there is one thing you will never hear in the United States: a call to eliminate defense attorneys, even for the most monstrous of crimes. That is because in America we rely on defense attorneys to balance a system that could otherwise tilt misguidedly toward guilty verdicts, ignoring innocence time and again. As the system stands, that happens enough already. Continue reading

October 7, 2022

Governor Newsom’s Order on Rap Music in Court

by David M. Boertje

If you are on trial for a serious crime, you can find some solace in the fact that courts have rules at both state and federal levels related to the relevancy of any and all evidence presented at trial. That means photos, witnesses, physical evidence, and more must be deemed reliable and pertinent before it gets in front of a jury. Does that mean that only prescient information gets to the jury? You might think so, but that is not always the case.

Case in Point

One recent case exemplifies a problem that is becoming increasingly common. It surrounds a 17-year-old boy who found himself sentenced to life in prison based on circumstantial evidence. There were no witnesses to the crime, and there was no physical evidence. So, what convinced the jury that he was guilty? The lyrics of a rap song he had written were central to the conviction, despite the fact that they were difficult to understand and certainly open to multiple interpretations.

Bias?

“I shot the sheriff…” crooned Bob Marley. No prison for him. Jimi Hendrix sang that he “caught her messin’ round town, yes I did, I shot her…” and was never even interviewed by police about the lyrics or murder. And when Bob Dylan sang about seven dead people in the Ballad of Hollis Brown, no one fretted he might be a murderer in our midst. The fact is, there are hundreds of thousands of popular songs from every genre that talk about acts of violence. Those lyrics are viewed as art, the songs a thread woven through American culture. Why, then, has rap music gotten such a bad rap? It has got to be nothing short of bias.

Legislation Necessary

The music industry has taken note of the bias against rap music, particularly in the aftermath of a RICO (Racketeer Influenced and Corrupt Organizations) indictment against famous rapper Young Thug in Georgia. The Grammy-award winner’s lyrics have been used against him in court, as prosecutors claim them to be overt acts. California is one state that is listening to the protest against using rap lyrics in criminal trials.

California Puts a Stop to Prejudicial Courtroom Antics

Governor Newsom says that all artists deserve to be able to create without being afraid their lyrics will be used against them in court—and he signed a bill into law saying as much. No longer can prosecutors use lyrics without the court thoroughly examining the research on that particular form of expression and considering racial bias. California is blazing the trail for more fair, impartial outcomes in a court of law. Continue reading

September 30, 2022

Mental Health Issues and the Criminal Justice System

by David M. Boertje

Across the United States, prisons and jails are brimming with people who suffer from mental health issues. It is true: more than half of the prison population and more than two-thirds of those in jails suffer from mental health problems. If you or a loved one has such issues and is arrested, you know that jail is simply not the best place to wind up. Are there other options in California?

The Cycle Continues

According to the Bureau of Justice Statistics (BJS) people behind bars who suffer from mental health issues often have previous convictions and tend to serve longer sentences than the average offender. Any health issues — and mental health conditions in particular — tend to get worse without treatment, which can result in further problems with the criminal justice system. It is a vicious cycle that needs solutions.

Crisis Intervention Teams

Since police are usually the first on the scene of an altercation involving someone who suffers from mental health issues, states across the country are developing Crisis Intervention Teams (CIT’s) to assist with evaluation and de-escalation in crisis situations. The result is fewer arrests, access to diversion programs and services, and fewer injuries to offenders, police and others. Police and CIT members work together to impact communities by reducing severe outcomes involving the mentally ill. With teams of mental health workers, better trained police know how to interview, negotiate, and identify the effects of drugs, which means criminally involved or suicidal individuals get lifesaving help instead of simply being arrested.

Diversion Opportunities

In addition to pre-arrest interventions, many states direct arrestees to diversion courts instead of incarceration, giving people the chance to take responsibility for their actions, get the help they need, and have their records cleared in time. Studies show this can result in shorter sentences and fewer re-arrests.

Hope in California

The future looks bright for mental health intervention in California. Crisis Intervention Teams are embedded in police departments across the state, providing training for officers and redirecting offenders to support programs that can help instead of simply punish. The state has budgeted tens of millions of dollars to address the increasing challenges associated with the homeless population, substance use disorders, and mental illness, all of which may interact and lead to criminal activities. The state is committed to improving outreach and mental health diversion programs, while minimizing involvement with the criminal justice system. Another thing California is doing to improve outcomes for those with mental health issues is suspending Medicaid coverage during incarceration, rather than canceling it altogether. This can be important for those looking for treatment options and can reduce the chances of re-arrest. Continue reading

September 23, 2022

Fleeing Police Can Mean Death

by David M. Boertje

About one out of every three fatal police shootings involve individuals who were trying to evade an arrest. These numbers tell the story: it is never a good idea to try to flee from the police. Surely, an arrest would be a better outcome than a shot in the back.

When is the Use of Deadly Force Justified?

Without question, deadly force is sometimes necessary. Certainly, the lives of officers have value, and when those lives are in peril because there is an immediate threat of serious bodily harm to that officer or to another person, deadly force is understandable. Even in situations when a suspect is fleeing, if that suspect is believed to have been involved in dangerous felony activity that caused serious injuries, deadly force is justified under the law. But we continue to hear cases of non-threatening people being killed by police when they are running away. How is that justifiable?

State of Mind

The Supreme Court has given more leeway to officers who are involved in fatal shootings over the years, saying that an officer’s state of mind and level of fear during a particular incident must be weighed in determining whether or not the use of force was justified. That means if an officer believes a suspect was reaching for a weapon, it can justify the use of lethal force. Even when a weapon is not discovered after a police killing, the event may be ruled as justified. That is right—an unarmed suspect may be killed even though there was absolutely no real threat.

Shocking Consequences

633 individuals were killed by law enforcement officers in the first half of 2022; 202 of them were in the act of fleeing when they met their deaths. Prior to 2022, one person was killed in police encounters every single day. Some of those include:

A pregnant woman who was shot in the passenger seat of a car that was fleeing police;
An unarmed man who was fleeing police in Ohio when he was shot down;
A man who ran from an unmarked police vehicle and was fired at by a California officer;
A man who was being stopped for riding a bicycle at night without a light and was shot in the back of his head after a struggle;
A man who was shot dead while sleeping in his car.

Who are the Victims?

The startling fact is that Black people who are on foot make up as many as half of all fatalities involving victims who are killed while on the run, even though Black people comprise just 13% of the population in this country. Continue reading

September 16, 2022

Should Juveniles be Charged as Adults?

by David M. Boertje

Hundreds of years ago all convicted criminals were housed together, regardless of gender, age, or mental illness. Prisons were filled with a mix of them all, until somebody recognized that there was a problem with the system in 1825. That is when New York House of Refuge was established with the goal of educating and rehabilitating juvenile offenders. It was not until 1899, however, that the first juvenile court was established meant to deal just with those under the age of 18. But there was unequal treatment of juveniles, and after much ado, Congress ultimately passed legislation—the Juvenile and Delinquency Prevention Act—in the mid-1970s to try to level things out. Nowadays we often hear that many juveniles should be tried as adults. Quite often those cries are heard, and now over 10,000 prisoners under the age of 18 are serving time in adult prisons across the country. What are the justifications for and against such a move?

Arguments Against Trying Juveniles as Adults

Opponents of such a move have several strong arguments to explain their position:

Parents do not have to take any responsibility: When kids commit serious crimes, parents should be held accountable to some degree, such as by being ordered to find proper counseling, care, and rehabilitation opportunities.
There is no benefit: Nobody wins when children, who should be getting education and rehabilitation, are simply locked up. Furthermore, it does not meet family court’s standard of acting in the child’s best interest.
Criminal activity is more likely again: When juveniles are treated like adults, they are less likely to get the help they need to change their lives, and a life of crime becomes more likely.
Punishment options are limited: The juvenile court system can order things like curfews and counseling, but the range of options in adult court is not geared toward young offenders.
Suicide risk increases: Juveniles in adult prisons are usually put in solitary confinement until they are old enough to join the general population, which makes them 40 times more likely to commit suicide.
A jury of peers is not possible: Every jury will consist of adults, even though the defendant may be just 9 or 10 years old.
Sealing records is harder: It is much more difficult to seal an adult criminal record, making it more difficult to make a fresh start.
Young brains are underdeveloped: Juveniles’ brains have not developed completely, meaning their decision-making abilities are inadequate. Based on neurobiology alone, it is unfair and unfitting to hold them to the same standards we hold adults.

Arguments in Favor of Trying Juveniles as Adults

Proponents of treating kids as adults in the justice system are equally passionate in their arguments:

It teaches accountability: Some families just do not teach accountability, and it is left to society to pick up the slack. Serious crimes deserve serious penalties.
Juvenile courts are too lax with serious criminals: When juveniles are given the toughest sentence possible in a juvenile court, they could be out in their neighborhoods again by the time they are 18 (or 21 or 25 in some states). About 300 people are killed by children every year. Neighborhoods and communities deserve protection from all violent predators, regardless of their age.
Actions should have consequences: If a serious crime is committed, the age of the offender should not matter. Society demands justice, and there is no way around it..
They will have access to more programs: Adult prisons offer vocational and mental health programs that are bigger and better than what the juvenile system offers, along with programming for mental health, addiction, and learning disabilities.

September 9, 2022

What Makes a Good Criminal Defense Lawyer?

by David M. Boertje

When you are up against criminal charges, you need an attorney by your side who is both ethical and willing to fight for the best possible outcomes for you. At The Law Office of David M. Boertje, our clients know we will go to bat for them, with several key principles guiding our decisions:

We treat every single defendant with respect and dignity, and we speak frankly and honestly;
We work to ensure that legal procedures are adhered to and defendant’s rights are protected;
We fight for access to diversion programs in lieu of jail time whenever it is an option;
We fight to ensure that minor defendants are treated like children, not thrust into the adult criminal justice system;
We endorse restorative justice, not purely criminal consequences;We insist that forensic evidence is dealt with properly (and call it out when it is not) and that expert testimony is challenged for biases and/or misinterpretations;
We shoot for treatment programs, not punishment, when mental illness or addiction is a factor;
We fight aggressively against signs of racial and gender disparities;
We strive to hold law enforcement accountable for their actions and mistakes.
We enter any plea bargain negotiations with the goals of fairness and just outcomes, and agree only with client consent.

Protecting Your Rights

The Constitution and the Bill of Rights guarantee every criminal defendant the right to just treatment. No matter the alleged crime, every defendant is entitled to the following:

Fifth Amendment Protections: Anyone who has watched cop shows on television knows that the Fifth Amendment gives you the right to remain silent—but there is lots more to it. The Fifth also ensures that serious felony cases cannot be prosecuted unless, after a preliminary hearing, a judge determines that there is enough evidence to hold a trial or after a grand jury has issued an indictment. Defendants are also protected from double jeopardy, which means after you are found not guilty in a trial, you cannot be charged again by the state for the same crime. Finally, the Fifth Amendment provides for economic liberty, which is important in property issues like eminent domain.
Sixth Amendment Protections: Defendants are entitled to a speedy, public trial in front of a jury of impartial peers. The idea is that that indefinite detentions will not occur. Defendants are also guaranteed the right to an attorney.
Eighth Amendment Protections: Defendants are protected from extreme outrageous bail requirements and/or fines, and are shielded from cruel and unusual punishments.

September 2, 2022

The Interrogation: Be Prepared for Anything

by David M. Boertje

An arrest can be a scary thing, whether it is your first or your hundredth. That is because, as an arrestee, you feel like you have no control at all. But nothing could be further from the truth! The central thing you need to remember is that you have the right to remain silent. That gives you all the control you need.

Miranda Laws

When police are doing their jobs correctly, they must inform you of your Miranda rights:

The right to remain silent;
The fact that your comments can be used against you in court;
Your right to an attorney;
The responsibility of the court to appoint an attorney if you cannot pay for one yourself.

Nonetheless, there will be tremendous pressure to talk about the crime in question, and even to confess. Don’t. Ask to speak to your attorney and say nothing more. Be aware that your interrogation is not just a simple question and answer session; police have been trained to extract information, and they use several extremely powerful psychological strategies to get what they want. One of these strategies is deception.

Limits to Lying

Law enforcement is allowed to misrepresent what they know about a crime and can make assertions that seem to make you look guilty, even if they are not true. They cannot lie specifically about your legal rights, but they can twist, and even invent “facts.” For instance, they could falsely claim that an accomplice has already given you up. Perhaps they will say they found your fingerprints at the crime scene. There is one line they cannot cross: any statements you make must be voluntary. In other words, legally, they cannot threaten you, physically intimidate you, or otherwise force you to speak to them without the presence of your attorney. If the “totality of the circumstances” in a confession so much as hints that it was not voluntary, it may be inadmissible in court.

What to Watch Out For

Whenever you are questioned by the police, assume you are a suspect. Even what seems to be casual chatting and questioning gives them an opportunity to collect information that could later be used against you. Always ask if you are free to leave, and if you are not, give only your name until your attorney is there.

The Reid Technique

There are three key parts to a coercive strategy called the Reid Technique, which police often use to get a confession (whether or not the suspect is guilty):

Isolation: The suspect is confined in a small interrogation room in order to create a sense of isolation and panic.
Good Cop/Bad Cop–Maximization: This one’s just like what you’ve seen on tv! The first officer comes in with the bad news that a conviction is inevitable based on the (often false) facts they have. The cop will seem confident that they have an air-tight case against you.
Good Cop/Bad Cop—Minimization: Now that they’ve got you feeling rattled, the good cop makes an entrance to let you know that your crime was understandable, and a confession will lead to lesser charges—maybe even the opportunity to go home. Ah—the perfect opportunity to fess up—to someone who really understands you! Don’t fall for it!