Criminal Defense

September 30, 2016

California Wants to Make it Easier to Prosecute Old Rape Cases; Passes Minimum Sentencing Law on Rape

In the ongoing saga of rape allegations against comedian Bill Cosby, California has become one of two states that has proposed a law that would extend the statute of limitations in the prosecution of rape cases. The proposed bill, which passed both houses of the Legislature, follows a new law in Nevada that increases the legal deadline for rape prosecution from four to 20 years. In California, the statute of limitations to prosecute a rape case is currently 10 years. Almost three dozen states, including the District of Columbia, have statute of limitations on filing sexual assault charges or lawsuits.

The state’s governor, Jerry Brown, who has had a history of vetoing bills extending legal deadlines for filing lawsuits over child sex abuse, must approve or sign into law the bill by the end of the month.

This bill however, is not the only one Governor Jerry Brown must decide to veto or approve. The California legislature, in response to the outrage over the six-month jail sentence for Stanford University swimmer Brock Turner also passed a bill that would mandate a minimum three-year sentence for those convicted of rape or sexual assault. The proposed bill would eliminate a judge’s discretion to sentence defendants convicted of such crimes to probation. Brock Turner was released from jail earlier this month for ‘good behavior,’ after serving three months (half) of his sentence. Had this proposed law been in place, he would still be in jail.

What are Statutes of Limitations?

Every state has something called a statute of limitations, which is generally defined as the time limit for a criminal or civil action. In other words, once a statute of limitations has passed, one may no longer be prosecuted or sued for his or her crimes. A statute of limitations typically begins to run from the date the injury or crime was discovered.

In California, the state’s code has specific time limits for specific crimes, such as fraud, injury to personal property, and malpractice. The current California statute of limitations on prosecuting felony rape and sexual assault cases is 10 years after the crime occurs, or for incidents involving minors, until they reach the age of 26. Continue reading

September 28, 2016

Animal Activist Goes to Trial for Giving Thirsty Pigs Water

by David M. Boertje

An animal rights activist by the name of Anita Krajnc, 48, is being tried in Canada for criminal mischief because she gave water to thirsty pigs at a traffic stop.

Back in November 2015, Krajnc was charged with criminal mischief after clashing with the driver of a tractor-trailer transporting pigs to the slaughterhouse. She and her fellow protestors tried to give the thirsty pigs water as they were stopped at a traffic light on the way to the Fearmans Pork processing plant. The Ontario based hog farmer, Eric Van Boekel, who owned the pigs, filed a police complaint the next day. He claimed he was concerned for the safety of his product the animal rights protesters, who sometimes crowd near the large transport vehicles when they are stopped in traffic. Krajnc is the founder of an animal rights group called Toronto Pig Save. The video that went viral online shows her approaching the driver first to ask him to give the pigs water, since it was such a hot day.

Several online petitions numbering in the hundreds of thousands of signatures have already sprung up in Krajnc’s defense. Krajnc faces a maximum of six months in jail or a $5,000 fine if convicted, and she has pleaded not guilty.

Difference Between Criminal Mischief and Disorderly Conduct

Under California law, CA Penal Code § 594(a), criminal mischief, or malicious mischief, refers to the act of intentionally damaging, graffiti-ing or defacing property. You will be charged with criminal mischief/malicious mischief if you intentionally deface or destroy another person’s property without his or her permission. It does not involve taking another’s property, which is considered theft. A key element of the crime is intentional behavior, and not accidental behavior.

The majority of malicious mischief cases are prosecuted as misdemeanors punishable by a fine up to $10,000 and one year in jail if the amount of property damage is under $10,000. If property damage is under $400, the crime is punishable by up to $5,000 in fines.

Disorderly conduct in almost every jurisdiction, is like a catch-all charge for those crimes that do not have a specific statute covering it. While disorderly conduct laws significantly differ amongst states, the crime is mainly known as “disturbing the peace.” This encompasses any behavior that causes other people alarm, anger, annoyance, or causes them to engage in unlawful activity. California categorizes disorderly conduct offenses into five categories:

General disorderly conduct which includes public intoxication,
Fighting, noise, and offensive words,
Rioting,
Disturbing the peace on a school campus, and
Refusing to disburse such as during a protest.

September 21, 2016

Accused Charleston Shooter Dylan Roof Beaten in Jail

by David M. Boertje

Last month, it was reported by CNN that the unsympathetic Dylann Roof, the accused shooter in Charleston, was attacked and beaten on his way to the shower in Charleston County Detention Center. Roof made headlines last year when he was arrested for his racially motivated massacre of nine black churchgoers at Charleston’s Emanuel AME Church in North Carolina.

Although he is currently in protective custody, Roof, 22, was vulnerable because only one guard was in the area and he was fetching toilet tissue for another inmate. That allowed another inmate, 25-year-old Dwayne Stafford, to run down the stairs from his cell into the protective custody unit and sucker punch Roof. It is reported the detention officer quickly responded and separated the two. There were no weapons involved, and the injuries Roof faced were minor – bruising on the face and back.

It is not surprising that the nature of his crimes make Roof vulnerable to attacks, and that is why he is under protective custody in the prison where he awaits trial. His murder trial is set to start at the end of January, and there are already three federal courtrooms dedicated to it. Roof currently faces nine counts of murder, three counts of attempted murder, and gun charges.

What is Protective Custody?

Protective custody in prison is a type of imprisonment intended to protect an inmate from harm, either from outside sources or other prisoners. Inmates have the right to request protective custody if they believe that the environment they are living in is harmful to their well-being. They can make this request at any time if they feel their physical safety threatened. Corrections officers then keep the inmate making the request locked up and unable to leave until the request is granted. The request may be granted if officials decide that the inmate is truly at risk. Once ‘protected,’ an inmate is typically segregated from the rest of the prison population.

Ideally, inmates under protective custody are housed in a stand-alone unit, with their own eating facilities, shower areas, recreation yards, and visiting rooms. Doctors and staffers visit the unit so the prisoner does not have to travel. Protective custody units have numerous cameras and guards, and can have anywhere from 10 to 100 inmates. Continue reading

September 14, 2016

White Supremacist Stabs Interracial Couple After Seeing Them Kiss at Bar, Police Say

by David M. Boertje

In the nearby state of Washington, a 32 year old white supremacist named David Rowe was apparently enraged at the at the sight of a black man and a white woman kissing at a bar in Olympia. Police say Mr. Rowe was recently released from the Washington State Penitentiary in Walla Walla, about 300 miles away. He was convicted in 208 for second-degree robbery. It is reported that he may be amongst the state’s homeless, who flock to Olympia for help on their way to Portland or Seattle.

Police report that he had been watching the couple, and walked up to them and without warning, yelled a racial slur and lunged at them with his knife. According to a press release from the Olympia police department, the knife went into the man’s hip, and grazed the woman. The male victim, 47, ended up chasing Rowe and knocking him unconscious on the ground when he tried to run away. After being arrested he was reported to rant about Donald Trump rallies.

Rowe was arrested and booked into the Thurston County Jail on two charges of first-degree assault and possible malicious harassment, which is the charge for hate crime in Washington state. The FBI reported 5,479 hate crimes across the United States in 2014, a 14.6% decrease from 2013.

September 9, 2016

Jail Let Mentally Disabled Man Starve to Death, Lawsuit Says

by David M. Boertje

Arrested for stealing $5.05 worth of candy and soda, a 24-year-old man from Portsmouth, Virginia, Jamycheal Mitchell, has allegedly been starved to death by prison guards. Mitchell has been repeatedly diagnosed with psychotic and delusional disorders, has allegedly been left to starve in squalid prison conditions. His aunt, Roxanne Adams, has filed a lawsuit against the prison.

It is reported that his medical records show that he died of a “heart condition “accompanying wasting syndrome of unknown etiology.” The lawsuit alleges that “jail staff had allegedly denied him many meals, cut off the water to his cell and left him naked with no bedding or shoes as he smeared feces on the window of his urine-covered cell.” He had lost 40 pounds in his time in Hampton Roads Regional Jail, and was “nearly cachetic.” The lawsuit also alleges that inmates pleaded with guards to help Mitchell, to no avail.

The 112 page complaint identifies 39 defendants, including the Hampton Roads Regional Jail, the state Department of Behavioral Health & Developmental Services and the private prison health care firm, NaphCare. Adams is demanding a jury trial and $60 million in damages for wrongful death. The prison is not commenting on the suit.

September 7, 2016

Stolen Guns Fuel Underground Market for Criminals in California

by David M. Boertje

According to Graham Barlowe, the Special Agent in Charge of the Sacramento office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, guns are considered just as valuable as cash or jewelry in a home break in. While referring to a recent string of robberies in our state’s capital Barlow stated, “Cash is extremely valuable because it can get you a number of things, but of the commodities that we find that people that are involved in criminal activity are looking for, guns are very high on the list.” At least seven gun stores have been targeted for burglaries in that area this summer.

It is reported that over 34 guns are reported lost or stolen in California every day, adding up to more than 12,000 guns a year. These stolen guns are likely used for future robberies, homicides, or gang activity. In fact, most of the guns being sold in the streets illegally are probably stolen guns that were legally purchased.

Click on this data analysis to see how many guns were reported lost or stolen to California law enforcement agencies from 2010-2015.

September 2, 2016

The ‘Slender Man’ Trial

by David M. Boertje

A Wisconsin Appeals Court recently released two decisions to try the two 12-year-old girls, Morgan Geyser and Anissa Weier, in the “Slender Man” case as adults. For those of you who have not heard of this case, two girls in 2014 admitted to leading their friend into the woods along Interstate 94 and stabbing her 19 times as a means to please the “Slender Man,” an Internet horror meme. Amazingly enough, the two girls have stated that they believed in the existence of this fictional horror character.

The origins of Slender, as Weier called him in interviews with police, can be traced back to a photoshop contest on the Something Awful forums in 2009. A graphic artist inspired by the authors H.P. Lovecrqaft and Stephen King and horror video games like Silent Hill, manipulated an image to show a tall, thin humanoid lurking behind children. The internet then crowd-sourced the story behind Slender Man, making him a legend or ghost story for impressionable minds to believe.

Rolling Stone has come out with an article on how absurd it is to try two 12-year-olds as adults when it is clear there may have been underlying mental illness causing them to believe this story. Morgan Geyser believed she would get to go live at Slender Man’s mansion if she killed her friend, and that he would harm her family if she did not go through with it. She had also been diagnosed with early onset schizophrenia.

Incompetency and Adolescents in Trial

Juvenile courts exist because it has long been understood that children are less culpable for their actions than adults. Research shows their brains are not finished developing, and they are immature.

In California, A.B. 2212 was signed into law on September 22, 2012. It added §709 in the CA Welfare and Institutions Code. It sets forth basic procedures to follow when a minor’s counsel or the court expresses concerns over a child’s competency to stand trial.

A minor is incompetent to proceed if s/he:

“lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding; or
lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her. See Protocol for Competence in CA Juvenile Justice Proceedings.

Incompetency is not an affirmative legal defense. It does not speak to one’s mental state during the crime, it only speaks to whether they can understand their proceedings. It is common practice to treat a defendant until s/he is competent enough to prosecute. Continue reading

August 31, 2016

Prosecutors: Bill of Rights Should not Cover Malheur Occupiers’ Actions

by David M. Boertje

In the saga of the Bundy wildlife refuge occupation, Federal prosecutors in Oregon filed a trial brief outlining their case against the occupiers. Prosecutors noted that that evidence teams recovered more than 20,000 rounds of ammunition. Defendants have claimed they were exercising their first amendment rights, but government prosecutors have rejected these defenses. They note that “Taking a gun into a government office is not First Amendment protected activity.”

The Rights Enumerated in the Bill of Rights are Not Unlimited

The first 10 amendments in the U.S. Constitution is also called the “Bill of Rights.” But constitutional rights are not absolute, and do not automatically have a legal defense for a crime by simply citing a constitutional right. In fact there are plenty of restrictions that have been imposed on other rights by the Supreme Court.

The First Amendment prohibits the impediment of the free exercise of religion, speech, press, the right to peaceably assemble or the petitioning for a governmental redress of grievances. Specifically, it says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

However, the Supreme Court over the years has placed many restrictions on these rights. You are free to exercise your religion for example, but not if it involves human and animal sacrifice. One’s free speech may also not be protected if it falsely defames someone’s reputation, incites violence, threatens someone, reveals a trade or military secret and threatens national security, or if it is deemed to be obscene. When, where, and how speech is expressed is also restricted. The government has put limitations on who can speak, such as students, prisoners, and government employees. It can also restrict your speech if you are blocking a public throughway (ie. street) while doing it. While determining limitations on speech, courts must carefully weigh the value of protecting speech against the countervailing public interests, including public safety.

The second amendment has been mostly invoked in the gun-rights debate as the “right to bear arms” and has been interpreted to include for the purposes of self defense. It states “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

While the NRA would have you believe otherwise, the second amendment is also limited. You cannot point a loaded gun at someone or use it to threaten them, for example. The case of District of Columbia v. Heller in 2008 specified that we have a constitutional right to use firearms for self defense in our private homes. But the opinion did not suggest that right extended to other areas. Continue reading

August 26, 2016

Numbers Show Increase in Assaults Against San Diego Police Officers

by David M. Boertje

While the nation is on edge from the high profile killings of unarmed citizens and police in Dallas and Baton Rouge earlier this year, the San Diego Police Department (SDPD) is currently trying to investigate whether a shooting death of Officer Jonathon DeGuzman, 43, was a deliberate act. It is reported that DeGuzman and a cohort stopped someone in the Southeast part of San Diego, which ended in a shootout. DeGuzman died in the hospital.

At the same time as tensions between citizens and police are high, statistics obtained by KGTV San Diego show that between January 2013 and July 2015, the numbers of assaults on officers increased. According to the news report, there were 252 assaults in 2013 and 319 in 2014. From January 2015 to July 2015, there were 254 reported assaults on officers, which is more than half of the assaults in all of 2013. The report was intended to identify the situations that are currently most dangerous for cops, and can be found here. However, other national studies shed doubt on KGTV’s study, concluding that fatal shootings of officers have actually decreased over the previous few decades

Crimes Against Police (“Peace”) Officers

As one could imagine, crimes against police officers are not treated like any other crime, even if the attacker did not know the victim was a police officer. San Bernadino County, for example, has its own “Crimes Against Peace Officers Prosecution Unit” dedicated to prosecuting crimes against police.

Under CA Penal Code § 148(a)(1), it is a misdemeanor punishable by one year imprisonment and a $1,000 fine just to resist arrest or ‘impede’ an officer from doing his job. Moreover, you can be charged with assault on a peace officer under CA Penal Code § 241(c) for threatening harm. It is a crime punishable by one year imprisonment and a fine of $2,000.

It is a first-degree attempted murder charge punishable by a minimum 15-year sentence (and up to a life sentence) if the crime is committed against a peace officer. Lastly, it is an aggravated penalty to kill a cop trying to fulfill his police duties in California. It is also punishable by the death penalty. Continue reading

August 17, 2016

It is Now Perfectly Legal to Take Upskirt Photos in Georgia

by David M. Boertje

In another bizarre legal ruling from a right-leaning state, a Georgia Court of Appeals ruled the state’s invasion of privacy laws does not prohibit taking a photo up a woman’s skirt (an “upskirt photo”) unless she is “behind closed doors,” with an expectation of privacy, like in a bathroom stall or dressing room. Otherwise, a secret photo taken without the permission of the woman in a public place like a supermarket or sidewalk is fair game.

In a 6-3 opinion, judges ruled in the recent case of Brandon Lee Gary, a Publix store clerk who was accused of taking upskirt photos of a female shopper, that criminal “invasion of privacy” laws only protect victims if the conduct takes place somewhere that is not “visible to the public.” The problem, the judges note, lays in the language of the law, and that it is up to the state legislature to fix it in the next legislative session. However, the next session will not occur until Spring 2017.

The state of Georgia is not alone. Dozens of states do not have specific laws against sexual harassers taking upskirt photos of women in public. For example, a Washington, D.C. judge ruled in 2014 that a woman does not have a “reasonable expectation of privacy” if she were photographed “clothed and positioned in a public space, even if the photographs in question are incredibly invasive and demeaning.” Often, this kind of behavior is not considered illegal due to technicalities of the wording of laws that have not kept up with technology.