Criminal Defense

July 7, 2023

Criminal Justice Reforms on the Horizon

Who leads the world in the number of incarcerated individuals? The United States. There are over two million people behind bars in this country and another three million under some other form of control (like probation or parole). Add to these numbers up to 100 million people who are living with a criminal record that impacts their opportunities in a negative way every single day. Without question, it is well past time to examine what is not working and make some changes. States from coast to coast are doing just that.

Drug Policies

People facing non-violent, low-level drug charges in Kentucky can now have their cases put on hold while they undertake treatment and take advantage of vocational services. Meanwhile, states across the country are decriminalizing or legalizing cannabis use, and Colorado decriminalized psilocybin mushroom use.

Revision of Mandatory Minimums

Eliminating or reducing mandatory minimum sentences has been on the docket in Washington, D.C. Maximum sentencing requirements of 45 years have been reduced, and rules related to the reconsideration of lengthy sentences have been adjusted to favor defendants.

Changes to Probation/Parole

Individuals in Florida who are on probation can now get education or workforce credits in order to reduce the length of their probation. They can earn:

60 days off of probation for every educational activity completed;
30 days off of probation for every six-month period that they were employed for at least 30 hours/week.

The End of Involuntary Servitude

Vermont, Oregon, Tennessee, and Alabama all amended their state constitutions to remove any language that allowed for involuntary servitude in their prisons.

Voting Expansions

Individuals serving jail sentences in Washington State and in Massachusetts are now guaranteed the right to vote. There are now funded programs designed to ensure detainees are aware of their rights and are registered to vote.

Youth Programs

The age of detention has been raised to 12 in Indiana, and improvements in data collection and youth diversion programs have been implemented.

Juvenile courts in Maryland will not have jurisdiction over children until age 13, and juveniles who commit misdemeanors or who sustain technical violations of probation can no longer be placed in secure facilities (with rare exceptions). Additionally, diversion programs have been offered to young people who have committed nonviolent felonies, even without the consent of prosecutors and/or victims.

Tennessee confronted its mandatory 51-year sentencing requirement for certain youth offenders, substituting it with the opportunity for parole after 25 years served.

Re-entry Assistance

Providing help with social relationships and collaborating services with community-based programs in Nevada is expected to help prepare inmates for their eventual release. Support for housing, employment, education, and health services is expected to improve recidivism rates.

Racial Disparities

Under the Racial Justice Act for All here in California, anyone who was convicted of a crime before 2021 may seek relief if they can prove a component of racial bias in their conviction. (Case challenges were already allowed for convictions that occurred during or after 2021). Continue reading

June 30, 2023

Finding a Needle in a Haystack: Genealogy Testing in the Criminal Justice System

by David M. Boertje

The Golden State Killer had raped and murdered for ten years and hidden in plain sight for decades before he was finally caught, years after terrorizing Californians. His crime spree involved nearly 90 victims, and because he was a former police officer, he knew how to evade detection and capture for decades. What finally led to his apprehension? It all came down to genetic genealogy.

What is Genetic Genealogy?

Millions of people worldwide have participated in genetic DNA testing in the search for unknown relatives or as they look for clues to diseases that are hereditary. Most of them probably never thought those bits of DNA would one day be used to track down perpetrators of criminal activity, but that is exactly what is happening with the technology these days. Here is how it works, in a nutshell.

A criminal leaves DNA evidence at a crime scene.
Investigators check FBI and other databases, and if they cannot find a match, they turn to genealogy websites.
Investigators fabricate a profile for a genealogy website using the DNA they have recovered from a crime scene, hoping to score a match.
When a near-match is discovered, detectives identify relatives—including those who may never have used the websites– using the newfound information.
Police have multiple leads at this point and start following the trails in hopes that one of them will lead to a suspect.

Is That Ethical?

Yes, it is a good thing that someone like the Golden State Killer was finally made to pay for his crimes. But for someone who is considered participating in genetic DNA testing or who has already done so, it may be a little concerning that law enforcement can now access the most minuscule pieces of your DNA in order to search for criminals. Do people understand that when they submit their DNA, it may be subject to forensic analysis by law enforcement? Even if it is spelled out in the company’s terms of service, do people read that and comprehend the potential consequences? Whatever happened to privacy, anyway? In the case of the Golden State Killer, police would have had to falsely claim that the DNA they uploaded to the website was authorized, was their own, or was from someone for whom they had legal guardianship. That could bring questions as to whether or not the evidence was legally obtained.

DNA Questions in General

Setting aside the question of whether genealogy testing should be accessed by police, no discussion of DNA testing is complete without acknowledging that the misuse/overinterpretation of such evidence is a real risk in the criminal justice system. Clearly, the fact that DNA was located at a crime scene does not prove that the person was there during the commission of the crime, let alone guilty of it. And that does not begin to address the fact that DNA evidence could be compromised if not properly collected and stored. Continue reading

June 23, 2023

When Police Mistakes Impact Your Case

by David M. Boertje

If you have been charged with a crime, you could be facing some pretty unpleasant penalties. That is why having an experienced and aggressive local criminal defense attorney working on your behalf is so essential. At Boertje & Associates, our defense attorneys are committed to working diligently for clients, starting with taking a look at potential errors made by law enforcement. There are plenty of places where deviations from protocol and legal procedure could lead to a boost in your defense. Just a few include the following:

Improper Stop, Search, or Seizure

Police cannot just stop and search anyone they would like based on your race, suspicious clothing, or other “gut feelings” without following certain rules:

They have to have a reasonable suspicion that you have been involved in criminal activity in order to stop you in the first place;
A search or arrest cannot legally occur without probable cause, a warrant (which requires probable cause to obtain), or your consent.

More About Search Warrants

Police seek warrants from judges or magistrates based on probable cause that they will find evidence of criminal activity. They have to submit their request with fairly specific details as to what they expect to find and then can seize only items related to the suspected activity in question. For example, vehicles discovered in a garage might be seized if the warrant relates to stolen cars. If during the search cocaine is found, it can only be seized if it was found during a reasonable search for the vehicles listed in the warrant. In other words, if the cocaine was found in plain view on a counter in the garage during the search for stolen cars, it’s fair game. If it is found, however, in a jewelry box in the bedroom, it is not because a search for a stolen car would not reasonably include looking in a bedroom jewelry box.

Failing to Secure a Crime Scene

When police neglect to properly secure a crime scene, it opens any findings up to real questions. Was there tampering with any evidence? Did evidence become smudged or damaged inadvertently? Did items enter the scene that were not there originally

Neglecting Chain of Custody Requirements

When evidence is collected, it must be carefully secured, stored, and documented in order to ensure the integrity of the material. Failure to adhere to the chain of custody with care could result in a judge’s ruling that the evidence must be excluded. Continue reading

June 16, 2023

Behind Bars: Book Bans

by David M. Boertje

When author Silja Talvi approached Lou Johnson about sharing her experiences behind bars, Johnson was happy to participate. Talvi, an investigative journalist by profession, was writing a book about incarcerated women, and wanted them to tell their stories in order to bring the abuse and trauma that was so common to women in the prison system out of the shadows. Johnson could not wait to read a copy of the final book and see her own story in black and white. She had described the degradation and anguish of having been denied meals after breaking basic rules like talking in line, being denied adequate medical care, and being required to perform hideous jobs in prison. She ordered Talvi’s book as soon as it was on the market.

Censorship Abounds

As it turns out, Johnson never did read her own account, not to mention the stories that hundreds of other women contributed, because the book was censored due to a passage that was determined to be harmful to the rehabilitation of offenders because it encouraged deviant sexual behavior. An examination of the prison system indicates that it was one of hundreds—perhaps even thousands of works that have been banned for multiple reasons, including:

Text that could encourage sexually deviant actions;
Directions to make drugs, weapons, or bombs;
Content relating to prison escapes;
Material that might provoke strikes, riots, or gang violence;
Sexually explicit material.

Like many book bans in schools and libraries across the country, sometimes a book is targeted due to a single passage taken out of context, resulting in the removal of an entire book from an approved list. Materials that address topics that are particularly relevant to many behind bars become off-limits, such as those dealing with issues of race, poverty, and gender identity. Even books written by prominent authors and Pulitzer Prize winners have been excluded from prison libraries, including books by Sinclair Lewis, Norman Mailer, John Updike, and Alice Walker. Books about civil rights, critical of the prison system, or addressing crime are frequently out of reach for prisoners, meaning Black and LGBTQ authors are winnowed out. Prohibitions even exist on books about tattoos, maps, survival guides, computer programming, and magazines that contain undesirable advertising.

California Bans

Some states allow only books sent by the publisher. Others forbid family and friends from sending reading materials to inmates. Some states allow particular bookstores to send books, while others allow approved vendors only. The explanation often given for this is that prison security is simply trying to control contraband from coming into its walls through books. Just how much in the way of illegal substances is coming from books is never actually defined, nor is the impact of book bans on controlling the input of these substances clear. And because there is very little transparency with such policies, details of how and when books are banned is often difficult to fully understand. What we do know is that in California, the bans are inconsistent because they are often at the discretion of a particular entity.

Boertje & Associates Continue reading

June 9, 2023

Preparing Your Criminal Defense

by David M. Boertje

Criminal charges are serious business, requiring a serious response. At the Law Offices of David M. Boertje, a skilled defense attorney is committed to fighting for your best interests. Part of that means we strive to keep clients informed every step of the way. Although every case is different, here is generally what you can expect:

A straightforward, no-nonsense appraisal of your situation: We will assess the facts in hand and give you the best advice we can based on California law.
100% effort on your behalf: That means responding to concerns, tracking down leads, and following through with commitments.

Preparing for a Trial

We always fight for the best possible outcomes. From beginning to end, we strive to achieve the results that have the least harmful impacts. While getting charges dropped or reduced is often ideal, sometimes a plea bargain to reduce sentencing, commuting sentencing, or an attempt to participate in alternative programming is a good outcome. If the case goes to trial, a vigorous effort toward a verdict of innocence is always the goal. You can count on a strong courtroom presence through preparation and critical thinking, and the effective development of a counternarrative to the prosecution’s story. All in all, we have a no-holds-barred approach:

Understanding the approach of the particular judge overseeing the trial;
Respecting the system and working effectively within it;
Organizing materials, plans, and strategies in a way that makes sense;
Communicating effectively with all parties;
Getting the facts by interviewing witnesses and clients;
Finding expert witnesses to address evidence;
Conducting extensive research to develop a theory of the case and find precedents to support our theory;
Filing motions on behalf of the client in order to strengthen our position;
Participating in discovery sharing according to the law;
Preparing a believable story to counter what the prosecution presents;
Subpoenaing witnesses, documents, and other evidence to support our case;
Crafting a strong, sincere opening argument to present to the jury;
Preparing you and other witnesses to testify on your behalf;
Acquiring photos, records, and other documents relevant to the case;
Producing exhibits related to the incident in question;
Considering specific objectives during jury selection;
Challenging testimony and evidence provided by the prosecution;
Anticipating the potential moves of the prosecution and being prepared for them;
Thinking on our feet and addressing issues as they arise;
Delivering strong, forceful closing arguments;
Submitting jury instructions to the judge;
Keeping accurate records in the event an appeal is appropriate.

June 2, 2023

What to Expect as Your Criminal Case Moves Forward

by David M. Boertje

If you have been charged with criminal activity, the police and the district attorney have concluded that you are the most likely suspect connected to a crime. Your arrest has you frightened and worried about your future. What is next for you?

The Arrest

Unless they caught you in the act, they have likely already collected evidence against you, including witness statements, physical evidence, photos, and more. A warrant that has been approved by the prosecutor says they have probable cause to believe you are guilty, and that gives them the right to put you behind bars until you are arraigned.

The Arraignment

Whether you have been charged with a misdemeanor or a felony, this will be the first time you appear in court on the charges. There, you are formally informed of the charges and told of your rights according to the constitution, such as the right to a trial before a jury of your peers, the fact that you are presumed innocent until proven otherwise, and so forth. You are given the opportunity to plead guilty, not guilty, or no contest. Bail and other conditions are decided.

The Pretrial Proceedings

Before the trial even starts, there may be motions by either side for the judge to make decisions related to the trial. Perhaps the defense will ask the judge to exclude certain evidence or will ask the judge to consider reasons that they believe you should not have to stand trial. Sometimes a plea deal is offered that the judge will have to weigh in on.

The Trial

If the case goes to trial (meaning charges were not dropped or a plea deal did not work out), the prosecutor has the burden of proving your guilt beyond a reasonable doubt. The trial can be held before the judge alone or before a jury. If you are found to be not guilty, you are free and clear and cannot be retried on the same charges. If the final verdict is guilty, a new date will be set for sentencing.

Pre-Sentencing Report

If found guilty, the probation department is tasked with putting together a final sentencing report detailing the crime, your criminal history, the victim’s statements, and a sentencing recommendation.

Sentencing

The judge approves the final sentencing based on guidelines in California law. Continue reading

May 18, 2023

Blood Spatter Analysis: Is it Reliable?

by David M. Boertje

Investigators look at the clues left at the scene of a crime in order to reconstruct the event so they can understand what happened there. This is especially important when it comes to violent crimes, where evidence often points to suspects. When crimes involve a lot of blood, expert analysis of blood spatter patterns is used to draw conclusions as to the types of weapons, the sequence of events that occurred, and exactly how and why the blood wound up the way it did.

The History of BPA

This story begins in the basement of a New York home decades ago, where Herbert MacDonell put his own blood in a medicine dropper and dropped it onto a mirror in order to analyze the patterns that formed. A similar courtroom demonstration fascinated many, and blood spatter analysis was born. Since that time, conclusions have become generalized over a variety of surfaces, and courts across the country developed confidence in BPA analysis. However, in 2009 the National Academy of Sciences found that expert analysis was only a subjective conclusion, not a scientific one and that the reliability of blood spatter analysis was questionable. The belief that bloodstains can tell the facts behind a crime is no more than wishful thinking—and misguided at that.

What Do Analysts Claim?

The examination of the location, shapes, and patterns of blood found at a crime scene is all part of bloodstain pattern analysis (BPA). Analysts believe they can draw conclusions about what they see about the following:

The way in which the wounds were caused;
Which direction wounds came from;
Where the blood came from;
The locations of both the perpetrator(s) and victims(s) and whether the body was moved after the wounds occurred;
Whether there was one or more perpetrators;
How well witness statements match up with the evidence collected at the scene;
Particulars as to what happened and importantly, what did not.

How Reliable is BPA?

The fact of the matter is that the error rate for conclusions based on BPA evidence is higher than you might hope. As much as prosecutors may want to rely on the analysis of their forensic “experts” when it comes to blood spatter evidence, the potential for mistakes is a serious issue. One study reported by the National Institute of Justice found that 11% of BPA conclusions turned out to be erroneous. Those odds are horrible: more than one case of BPA analysis will draw incorrect conclusions out of every 10 cases analyzed. Equally disconcerting is the fact that when any two analysts’ conclusions were compared, opinions did not agree in at least 8% of cases. Wouldn’t it be possible, then, to find an analyst to support any number of conclusions relative to a single crime scene? Continue reading

May 12, 2023

California Cold Cases

by David M. Boertje

More murders occur in California than in any other state. Some attribute the high population and dense living as the major contributors to this statistic, but, for whatever reason, the state leads in murders. Additionally, a lot of those murders are unsolved. There are cold cases going back over four decades to the tune of 41,000—a number that is startling, to say the least.

The Famous Case of Natalie Wood

One of the most famous unsolved murders in California is that of actress Natalie Wood. Wood’s husband, actor Robert Wagner, was the key person of interest in the case, but was later cleared. Wood’s cause of death was originally deemed drowning but was later amended to “drowning and other undetermined factors.” She disappeared while out boating with her husband and another friend, actor Christopher Walken. The two men corroborated that Wood had gone out on a dinghy to party hop among boats, leaving the final facts related to her death unknown to this day.

The Zodiac Killer

California’s Zodiac Killer taunted law enforcement for decades, and still has not been identified. The infamous serial killer was known for sending cryptic messages to police and the press along with graphic accounts of his crimes back in the 60’s. He is definitely connected to five murders, though he claims to have killed up to 37. Known for targeting couples, the megalomaniac loved to create fear through his villainous acts, and claimed responsibility for murders after the fact. The FBI says the case is still open, though who is on the suspect list we do not know for sure.

The Doodler

In the 70s the San Francisco area was terrorized by a notorious serial killer dubbed the Doodler. Known to target gay men, the Doodler often stalked his victims in gay bars. There, he sketched his quarry and then showed the drawing to his prey. That is how he struck up a relationship, only to ultimately kill the unsuspecting man. The case has been unsolved for decades, in part because the gay community had no trust for police during the Doodler’s reign of terror. Now, a $200,000 reward is being offered for information leading to the arrest of the killer, who is believed to be in his 70s and still living in California. Police believe they know who the culprit is based on new DNA technology, but do not know where he is. Continue reading

May 5, 2023

A Motion to Suppress in Criminal Court

by David M. Boertje

We all know that various kinds of evidence is important to the outcome of a criminal trial. Whether you are talking about witness testimony, documents, or physical evidence, it all adds up to a verdict in the end. But what if there are legal issues with the way the evidence was obtained? That is when your attorney can ask the judge to exclude it, meaning the jury will never know about it.

A Motion to Suppress

Before a trial even begins, a criminal defense attorney can ask for particular evidence to be excluded. There are plenty of reasons that could justify such a request:

If the evidence was obtained from an unlawful traffic stop or arrest;
If someone’s Miranda rights were violated and that led to the police getting their hands on the evidence;
If police conducted an illegal search or seizure;
If an unreasonable search occurred without a search warrant;
If a search warrant was issued, but was in some way defective (no probable cause);
If evidence other than what was in the warrant was seized;
If constitutional rights of a suspect were violated in order to get the evidence;
If there was a problem with the chain of custody related to the evidence;
If police ignored standard procedures while handling the evidence.

What Kinds of Evidence Could be Excluded?

All kinds of evidence may be subject for exclusion, including:

Testimony from witnesses;
Financial records;
Written statements;
Confessions;
Pictures and videos;
Audio recordings;
Blood, breathalyzer, or urine tests;
Forensic evidence.

What is the Process?

A suppression motion, sometimes called a 1538.5 motion, is generally filed as part of a preliminary hearing or a pretrial hearing that is held specifically for this purpose, called a suppression hearing. The burden of proof is on the party bringing the motion, (the defense team) and they will need to demonstrate with a preponderance of evidence that there is a legal justification to exclude the evidence. If you have ever watched a crime-drama on television, you have probably heard of “fruit of the poisonous tree,” the idea that anything that is learned by the prosecution as a result of unlawful means should not be able to be used against a suspect. The prosecution will likely contend that they’d have discovered the evidence anyway or that they had other means to learn of it. It will be up to your skilled legal defense team to squash those kinds of claims in order to successfully get such evidence suppressed. Continue reading

April 28, 2023

Life as a Parolee in California

by David M. Boertje

If you have been convicted of a criminal offense in California, there is a good possibility that at some point you will experience adult supervision through a California parole program. What can you expect?

Parole

Parole services are individualized based on a parolee’s needs and the need to protect the community. Reintegration can be a difficult process, so intensive supervision and support are available as needed, and can be adapted with time. Some of the services include:

Re-entry supervision at regular and intensive levels is available to help the individual make a successful transition from an institution into the community.
Electronic supervision may be used for parolees who require more structured requirements.
Specialized programs to assist with issues such as substance use disorders, mental health issues, anger management, as well as programs to address the unique needs of sex offenders and former gang members are available.
GED preparation courses are available, along with employment services and life skills classes.
Personal assistance in the form of clothing, cash, transportation aid, parenting classes, and other forms of counseling are available for those who could benefit.
VIP—Volunteers in Parole—assigns attorneys who volunteer to mentor parolees.

Rules for Parolees

Life is no picnic for parolees, as they are held to strict requirements until their stint with the program ends. Parolees need to be ready to give up some of their self-determination and color within the lines. Just some of the conditions of parole include:

You and everything you own, as well as your residence, can be searched at any time for no reason at all.
Your Parole Officer (PO) needs to know where you live and work at all times, and must be notified of changes before they occur.
A warrant for your arrest can be issued if you miss any meetings with your PO.
You need your PO’s permission to travel more than 50 miles.
If you want to leave the county for more than two days you need your PO’s okay.
A travel pass from your PO is required for any out of state travel.
You cannot be anywhere near weapons, especially guns and ammunition, even toy weapons that look real.
You can’t have a knife with a blade longer than two inches.
If you work with knives, you need your PO’s permission, and cannot have the knives outside of work unless you have a note from your PO on your person at all times.