Articles Posted in Criminal Defense

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The media was all a-flurry when news of Judge Tanya Chutkan issuing a partial gag order on former president Donald Trump in prior to his scheduled D.C. trial. Mr. Trump naturally cried foul, claiming the deep state and the White House is trying to rob him of his right to free speech as he jockeys for another stint in the white house. So, what do we know about gag orders in general, and Mr. Trump’s in particular? 

What is it?

First up on the docket: what is a gag order? In terms of criminal trials, a gag order is a court-issued decree that impacts a person’s ability to discuss a case. While they usually are issued to defense attorneys who may be inclined to sway public opinion on a case with slanted media interviews, in Mr. Trump’s case the order was directed at both the attorneys and the defendant himself. That is because Trumps’ social media and news presence is so pervasive, and because his social media posts, in particular, have been pretty inflammatory.

Why Trump’s was a “Partial” Gag Order

Yes, Mr. Trump is running for president. He has the right to make speeches, to complain about the opposing party, and to denigrate the current man in the White House, not to mention the justice department. What he cannot do, according to the judge, is disparage prosecutors, court employees, or witnesses, or any of their families. Since former Vice-president Mike Pence is both a witness and a political foe, specific instructions were given as to the kinds of comments Mr. Trump can make about Mr. Pence. Criticisms about Pence’s political platform: okay.  Suggestions Pence should not testify at trial or cannot be trusted to tell the truth: not okay.

Why Courts Impose Gag Order

There is nothing new about issuing a gag order in a criminal trial. In fact, you could almost say they are routine in cases where a judge would like to limit public discourse on a pending trial. And why would they want that? Some cases are so volatile that there is a concern that either witnesses will be influenced, or even intimidated, or that the jury will be tainted. In the case of Mr. Trump, the judge specifically noted that the integrity of court proceedings was at risk without the partial gag order. And as far as free speech is concerned, the court must consider the right to a fair trial and the safety of everyone just as much as it weighs one’s right to speak out in public.

What if a Gag Order is Violated?

Any time someone chooses not to adhere to a judge’s decree, it could mean trouble, and that is the case with gag orders, too. Typically, offenders could find themselves facing court admonishment, fines, and loss of liberty.  Mr. Trump has been warned of those possibilities, including the potential of house arrest or time behind bars. Continue reading

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Society has struggled with how to deal with the most deviant criminals for centuries. The question of justice becomes more complex than ever when juvenile offenders are involved.  Sadly, it’s a dilemma that is more and more frequently upon us: 

  • 17-year-old Jonathan Rojas is accused of engaging in a shooting spree that killed one person and wounded another in Greenfield, California;
  • A 14-year-old and a 16-year-old are accused of firing into a stopped vehicle, killing the driver and wounding a passenger, in what is believed to be a gang shooting in Los Angeles, California;
  • A juvenile has been charged with murder following reports of a family disturbance in Culver City, California;
  • A 14-year-old has been arrested in connection with a murder in Boyle Heights, California, and is suspected to have participated in no fewer than six additional homicides.
  • A 15-year-old has been arrested in connection with the murder of a Japantown security guard in San Francisco, California;
  • Four teens were arrested and charged with murder after the fatal gang-related shooting of a 16-year-old in Escondido, California.

Clearly, teens are connected to serious crimes more and more of late, with some facing penalties in the juvenile system, and others being tried as adults. 

Why Teens Commit Serious Crimes

Unquestionably, the depravity of these cases and others like it is stunning. It leads us, as a society, to ask how we should address children who engage in such activity. Perhaps we start by trying to come to some understanding of who teen killers are and the multifaceted environments that often produce them.

In a recent study, researchers concluded that oftentimes, young offenders grow up in homes in what they call disordered neighborhoods. These children generally have easy access to firearms and frequently have extensive exposure to violence during their formative years. Consequently, their compromised home lives drive young people to behave in foolish, passionate ways, reacting to the situations they find themselves in.  They fail to process their actions in relation to potential consequences. Rather than the myth of the “super predator teen,” researchers believe reckless morality-stripped teens are born of treacherous family and neighborhood norms.

 That, combined with myriad research surmising that the human brain does not fully develop until roughly age 25, leads to some of the horrendous criminal outcomes we see involving juveniles and is precisely the reason the Supreme Court cited as it eliminated the death penalty for juveniles in 2005, and why a sentence of life without parole is only rarely handed down to juvenile offenders still today.

The Teen Brain and Criminal Penalties

Further studies confirm what is quite obvious to the casual observer: teens crave peer approval and pursue reckless actions in their quest for that approval. Combine this with the inability to balance risk and reward, along with a shaky personal history, and you wind up with juveniles in the criminal justice system. These facts make it imperative that the expectations for teen criminals are tempered when facing courtrooms and justice systems designed with adults in mind. That is not to minimize the anguish of victims; it simply recognizes the reality of the science behind teen behavior. Continue reading

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While leaving a Vegas boxing match on the Strip, rapper Tupac Shakur was fatally shot nearly three decades ago. In the years following the murder, Duane Keith Davis acknowledged that he had been in the car when another unnamed passenger took aim and shot the rapper, but authorities were unable to use that confession at the time. That is because the information was offered in a proffer agreement—meaning suspect Davis provided the detail in order to assist in an investigation with the understanding that it could not be used as evidence against him. More recently, though, Davis’ media comments led to renewed interest in the case, and investigators ultimately got the evidence they needed to secure an indictment.  

The Indictment

The investigation took on a new life about five years ago and uncovered evidence that led to the arrest and grand jury indictment of Davis. Prosecutors contend that Tupac’s murder occurred in retaliation for a physical attack that Tupac and some of his Death Row Records unleashed on Davis’ nephew earlier in the day. Within hours of that attack, Davis had planned and pulled off the murder of Tupac Shakur. 

The Case

The violence 27 years ago was rooted in gang conflicts that arose in Compton, California, according to police.  Shakur was a member of a gang named Mob Piru, which had issues with the Southside Compton Crips, with whom Davis was associated.  With both men and their associates in Vegas to see the Mike Tyson/Bruce Seldon match-up at the MGM Grand, a chance encounter between a group of Death Row Records execs and Davis’ nephew in the MGM led to a physical altercation initiated by Tupac and friends. News of his nephew’s attack reached Davis, who straightaway came up with a plan to get a gun to get revenge. 

Davis and his entourage got into a white Cadillac, and the gun was given to a passenger in the. Then they sought their nemesis, pulled up next to a black BMW, and shot Shakur repeatedly. Six days later, Shakur was dead after four bullets led to irreparable damage. There is no indication of who pulled the trigger, but the indictment clearly called out Davis as the one who organized the deadly events that night.

The Charges  

Murder charges involving a deadly weapon are serious in their own right, and a gang enhancement could add another twenty years to Davis’ sentence. Thus, a guilty verdict could put the 60-year-old defendant behind bars for the rest of his life.  Continue reading

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Free Speech: it is a right guaranteed by the First Amendment. But does that mean anything goes? Some may be surprised to learn that there are definite limits on what is allowed. 

What is Permitted

In this country, the concept of speech is more than simply actual words. It includes actions, as well.  Particular activities encompass the right of free speech, according to the US Supreme Court. They include:

  • The right to protest—that might be by wearing armbands, by marching, by refusing to purchase particular merchandise, or to kneel during the National Anthem, and much more;
  • The right to use offensive language—including ideas that offend others—when attempting to convey a political message;
  • The right to donate money (with limitations) to the political party of your choice; 
  • The right to participate in symbolic activities that may offend others, such as burning the American flag;
  • The right to refrain from speaking—specifically, the right to refuse to salute the American flag 
  • The right to advertise goods and/or services (with some restrictions).

 Restrictions

While it may seem that Americans experience endless freedom when it comes to speech, there are some explicit boundaries.  Some speech that is not protected by the Constitution includes language that:

  • Incites criminal action;
  • Relates to the creation or distribution of obscenities;
  • Includes protesting a draft by burning draft cards;
  • Threatens to commit violence against someone else;
  • Is defined as fighting words that occur in face-to-face interactions and are likely to provoke a violent response from a typical person;
  • Involves the printing of articles in a school newspaper despite the objections of the school administration;
  • Is obscene speech at any school-sponsored activities;
  • Advocates using illegal substances at a school-sponsored activity.

Defining the Terminology

Unquestionably, some of the words related to free speech and its limitations are tough to understand and define. This requires a closer look at some of the terminology:

1-    Threats:  Even if a threat is not carried out, the making of any threat is illegal;

2-    Incitement:  While it is allowable to promote violence or lawlessness, it becomes a legal problem if the incitement is likely to produce imminent violence.

3-    Obscenity:  Three standards must be met in order for material to be considered legally obscene:

  1. a)     Sexual behavior is depicted or described in an offensive way as per community standards;
  2. b)    When viewed in its entirety the material violates community standards and is determined to appeal to one’s “prurient interest;”
  3. c)     Community standards render the material to have no literary, political, scientific, or artistic value.

Continue reading

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We see in movies, and even in the news, stories of suspects “flipping” on one another.  What does it really mean? Generally speaking, it is a matter of sharing evidence that a prosecutor values in exchange for benefits to one’s own legal situation. The prosecutor may have bigger fish to fry and be content with reducing or eliminating charges against someone lower on the totem pole in order to get to a  bigger fish. This is more formally referred to as turning state’s evidence. What could that mean for the typical defendant? 

Plea Bargaining Federal Rules

There are federal rules that must be followed when a defendant utilizes their constitutional right to turn state’s evidence. In exchange for the defendant pleading either guilty or nolo contendere, or making a plea conditional on a review by an appellate court, the plea deal process would move forward. It would ensure that the defendant is advised and questioned under oath in open court, and several issues must be clarified:

  • The defendant does have the right to plead not guilty;
  • A defendant has the right to counsel and to have that counsel appointed by the court if needed;
  • The defendant’s right to have counsel present throughout all proceedings and the trial;
  • The government has the right to use information provided under oath if prosecuting false statements or perjury;
  • The defendant may choose to plead guilty but must understand the potential consequences of such a plea;
  • Maximum penalties associated with such charges, including possible incarceration, fines, probation, and parole must be spelled out to the defendant;
  • Mandatory minimum penalties for each of the charges must be clear;
  • There may be court-ordered restitution assigned to the defendant;
  • The court has the right to order a special assessment;
  • A judge must adhere to sentencing guidelines ;
  • A defendant’s right to testify at trial, to refrain from incriminating themselves, to confront accusatorial witnesses, and compel witness testimony;
  • A defendant waives the above rights in the event a plea deal is accepted;
  • There is no ability to appeal if a plea deal is accepted;
  • There is a likelihood of deportation for non-citizens.

Other Requirements

The court must ensure that the defendant was not forced, coerced, or threatened to make a plea and that it was entered into voluntarily. In open court an exchange between the judge and the defendant must establish that the agreement was arrived at fairly and that there was a factual basis for the plea, meaning evidence that the defendant really is guilty of the crimes listed in the plea agreement. 

Changing One’s Mind

A defendant may withdraw from such an agreement for any reason prior to the court’s accepting it, or with a reasonable explanation if the court has accepted the plea but not yet imposed a sentence. Otherwise, it may be too late for a defendant to change one’s mind. Continue reading

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Working closely with a defendant to develop the best defense possible requires skill, creativity, and a depth of knowledge found among the defense lawyers at Boertje & Associates. If you are facing criminal charges, we can provide the services of an experienced criminal defense attorney who understands the many options available to defendants. Some of the possibilities that could benefit you include the following: 

Showing a Jury That You are Innocent

The law states that every defendant is innocent until proven otherwise. Prosecutors must prove every element of the case to get a conviction. A good defense attorney will use testimony, documents, and other materials to try to convince a jury of your innocence.

Putting Forth an Affirmative Defense

Constructing an affirmative defense is one way to reduce legal consequences associated with your charges. That means we do not claim that you are innocent; instead, we show that there were mitigating circumstances—maybe self-defense, intoxication, or other factors that could decrease or even eliminate your criminal liability. 

Negotiating a Plea Bargain

This strategy — pleading to lesser charges in exchange for a lighter sentence — might be available depending on your history of arrests/convictions, the confidence a prosecutor has in their case, and the value of information you have to trade.  

 Challenging of Evidence

Strict rules around evidence mean that any deviations from standard protocols can be quite beneficial to a defendant. Your attorney may be able to point out glitches with the chain of custody, challenge the reliability or interpretation of forensics, or focus on contradictions related to witness testimony.

Using Expert Testimony

When we provide our own expert witnesses, it is a potent way to show a jury a different explanation of the evidence that might be presented by the prosecution. This can be fundamental to establishing a fresh narrative to explain events relative to the event in question.

Looking at Mitigated Sentences

Defendants who express remorse, accept responsibility for their situation, and show a clear desire to turn their lives around may be able to take advantage of sentencing options delivered by sympathetic judges. Judges generally have some leeway when it comes to sentencing. There are multiple alternatives to jail that might be considered, including one’s desire to rehabilitate through mental health or drug rehabilitation, for example.  

Citing the Statute of Limitations

Many crimes have very specific time frames during which they may be prosecuted. Once that window closes, the prosecution may be barred from moving forward with charges.  Continue reading

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Across the country, more and more people are buying firearms. Some enjoy hunting, while others feel they need protection. Whatever the reason, if you wish to purchase and own a gun in the state of California, it is important that you are aware of and abide by the laws of the state in order to avoid problems with law enforcement. 

Getting a Gun

For starters, make sure any gun purchase is made through a licensed dealer, and be aware that there is a 10-day waiting period before you can take possession of the firearm. The exception to this is when transferring a firearm between parent and adult child, grandparent and adult grandchild, or between spouses. You must be 18 years old or older for a purchase, although anyone under the age of 21 may possess a handgun, except under certain exemptions, such as having a hunting license or working for law enforcement or the military. You will have to show a valid I.D. to make the purchase and show that you are in the country legally. To purchase a handgun, you will have to prove that you are a resident of the state, as well. 

Storing Weapons

Be aware that if a child gets hold of your weapon and has an accident that results in injuries or fatalities, you could be charged with a felony if the gun was not stored in a locked container or otherwise locked and inoperable.

Illegal Weapons

In California, the purchase, sale, manufacture, and import of large-capacity magazines are illegal. That means anything that can use more than 10 rounds is not allowed. The exception to this rule is for anything you may have owned and registered prior to 2000, assuming you were not prohibited at that time from owning a weapon or anything manufactured before 1899, which would be considered an antique. In general, assault weapons and their magazines may only be transferred or sold to licensed dealers or law enforcement departments. Those in violation of these rules are subject to both criminal and civil penalties as of 2023, according to SB 1327.

Unlawful Firearm Possession

There are a number of restrictions as to who may legally possess a firearm under California law.  Those restrictions include:

  • Those under age 18;
  • Those previously convicted of a felony;
  • Anyone addicted to narcotics;
  • Those with two or more misdemeanors related to firearms;
  • Anyone with an outstanding warrant;
  • People with certain mental health conditions.

While it is possible to get out of gun possession charges with only a misdemeanor, in some cases, offenders may face felony charges, resulting in three years behind bars and thousands of dollars in fines.  That’s on top of losing the right to possess firearms in the state forever. Continue reading

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Because defendants are presumed innocent until proven otherwise, it makes sense that the Founders believed in giving the accused their day in court as quickly as possible. The  6th Amendment of the Constitution guarantees the right to a speedy trial. It is important for many reasons, not the least of which is that it quickly clears the names of innocent people in a court of law. But what constitutes a speedy trial? 

Defining Speedy

Under California law, a misdemeanor criminal case must be tried within 45 days of charges for individuals who are not being incarcerated and just 30 days for anyone in custody. Felony charges must be tried within 60 days. More specifically, formal charges are required within 15 days of an arrest, and misdemeanors are tried within 45 days of arraignment.  Felonies must be tried within 60 days of arraignment. If that fails to occur because the state’s case is not ready yet and they have failed to demonstrate good cause for a delay, the case may be dismissed with a Serna motion, the claim that a speedy trial was denied.

Benefits of a Speedy Trial

 The benefits of having a speedy trial are many:

  • Defendants who have been wrongly accused are able to move on with their lives rather than be indeterminately burdened with unresolved charges.
  • Locating witnesses to the event in question will be less challenging if the trial occurs soon after an alleged crime.
  • Witnesses will likely remember their experiences more clearly.
  • A speedy trial can reduce the time behind bars since the accused is often jailed while awaiting trial. 
  • A speedy trial will reduce the stress and trauma for defendants.

Trial Delays

There are numerous reasons that any trial might be delayed, some legitimate, and others not so much:

  • Information may be passed along to the prosecution from law enforcement slowly.
  • The prosecution may be slow to disclose information to the defense.
  • State labs may be slow due to backlogs, leading to delays in essential forensic testing.
  • Complicated cases have a great deal of evidence that takes an extraordinary amount of time to review.
  • The prosecution may be short-handed, and therefore need more time to prepare.
  • Backlogged court dockets may make scheduling a timely court date a challenge. 
  • In some situations, the prosecution may intentionally delay the case for their own reasons.

The Fight for a Speedy Trial

If a person’s right to a speedy trial is violated, an aggressive defense attorney might charge that the prosecution was sloppy and disordered, leading to unnecessary delays.  It may be possible to find evidence of intentional delays by the prosecution in an attempt to provide gain time to ferret out additional evidence against the defendant. Since the right to a speedy trial was largely intended to safeguard the presumption of innocence, any uncommon or problematic delays might be a reason to fight for a case dismissal. Continue reading

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As an unsuspecting woman prepared her two daughters for school one February morning, she was shocked to find six armed police officers at her door. They requested she step outside and promptly arrested her for carjacking. The woman, compliant, was stunned.   

Is This for Real?

The woman had no idea what was happening or why they thought she was connected to a carjacking. At eight months pregnant, she was in no condition to pull off a carjacking and would never be compelled to participate in that kind of activity anyway. Even so, police handcuffed her and took her to jail. She spent 11 hours detained, locked in a holding cell, and being questioned relating to a crime she knew nothing about. Finally, she was released on a $100,000 bond. Then she went to a local hospital, where she was treated for dehydration. One long month later, the charges against her were dropped.

Why Was This Woman a Suspect?

The evidence leading to the woman’s arrest began with facial recognition technology (FRT). Videotape from the crime scene was run against a criminal mugshot database, which came up with the innocent suspect. Her face was there due to a 2015 arrest for driving under an expired driver’s license. Police included the woman’s photo in a photo lineup that was shown to the victim, who identified her as his assailant. And therein lies the problem: When a person appears similar to the perpetrator, facial recognition technology and humans can both make the same identification mistakes.

Can FRT Be Trusted?

There is general agreement that facial recognition technology is extremely accurate under model conditions. However, in most cases captured in video surveillance from things like convenience store security cameras or traffic cameras, conditions are appreciably less than ideal. Indirect angles, shadows, and aging have adverse effects on the reliability of FRT. One study found that the technology’s accuracy rate at sporting venues was between 36% and 87%. That is a substantially lower rate than in, for example, an airport, where security cameras are placed at boarding gates in well-lit, eye-level conditions. It brings into question how law enforcement can be so confident in FRT results.

Race and FRT

Another serious problem with this technology is the problem related to race and FRT. Research is clear: The rate of error is over a third higher for dark-skinned people than for light-skinned people, with black women experiencing the highest error rates when attempts to identify them were tested. It makes one wonder why law enforcement would rely on FRT at all. Continue reading

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We have all heard the stereotype about all people who are charged with a crime claiming to be innocent. But the truth is, plenty of them are. Nonetheless, they are prosecuted, even though, in some cases, the motivation behind the charges is the pursuit of something other than justice; they are interested in getting even or getting out of trouble themselves. Prosecution under these circumstances is legally called malicious prosecution. It means that either the plaintiff or someone on the prosecution team is literally out to get you. Sound like a conspiracy theory? Maybe so, but it happens more often than you might think.

Malicious Prosecution Comes in Many Forms

Malicious prosecution is pretty much what it sounds like — the spiteful arrest or prosecution of a person who is innocent or the prosecution of someone for which any reasonable person would acknowledge there were no legal grounds.

These cases frequently involve a plaintiff who is jealous, angry, or afraid, or who is aggressively seeking revenge. Some examples might include:

  • An amorous relationship is toppled by an affair, and the scorned partner accuses the cheater of battery to exact revenge.
  • A law enforcement officer is put off by a disrespectful youth, then trumps up charges to teach them a lesson.
  • A nasty custody battle is heated up when one person falsely accuses their former spouse of child abuse in order to strengthen their bid for custody.
  • When an amicable business split is impossible, and one partner accuses the other of fraud in an attempt to destroy their reputation and the company.
  • An unplanned pregnancy leads to a rape accusation as a way to protect a young woman’s reputation.
  • A newspaper sheds a negative light on a subject of journalistic investigation and is then sued for libel as a way to disparage the organization.
  • A person sells their spouse’s expensive jewelry, then accuses someone else of stealing it to avoid blame.

Defending Malicious Charges

Defending these kinds of charges is much like defending any other case. That means developing a strategy of:

  • Providing a strong alibi;
  • Finding evidence of lies or embellishments;
  • Presenting the defendant’s explanation of events in a credible fashion;
  • Exposing motives for bringing charges;
  • Checking police reports and procedures for errors;
  • Looking at the plaintiff’s previous behavior that demonstrates malicious prosecution;
  • Using physical evidence and additional provable facts to develop a compelling narrative;
  • Seeking out third-party experts to testify;
  • Demonstrating that the prosecution has not proven all elements of the crime.

Continue reading

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