Criminal Defense

June 2, 2023

What to Expect as Your Criminal Case Moves Forward

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.

April 21, 2023

Media Impact on Court Cases

by David M. Boertje

Everyone knows that the media has an intense impact on modern society. Whether you are talking about television, radio, and other digital forms of media, you can find virtually any information you want, from the current score in a college ball game to weather information across the globe and the latest in politics from your state, the nation, or the world. So, it is certainly not a shock to learn that the media has the potential to influence attitudes and beliefs. While the value of this is debatable, it can, in fact, be problematic when media coverage influences attitudes about current criminal cases. That is because the criminal justice system relies on the open-mindedness of jurors when deciding a case. When a juror has heard about a case, it could influence their feelings about a defendant. Additionally, cameras in the courtroom could influence the way witnesses or jurors behave. It is a big deal, especially when defendants are facing serious penalties.

Pre-Trial Publicity

When it comes to finding jurors who can look beyond their own bias, high-profile cases can be especially challenging when the media has implied innocence or guilt. A juror’s impartiality is scrutinized during voir dire, the selection process. At that time, both the prosecution and the defense attorneys are permitted to question members of the jury pool. Some of that questioning could relate to each juror’s exposure to various media reports related to the case. Judges and attorneys recognize that media can prejudice people, even though they may not realize it themselves. In cases where a juror does believe that they can act with impartiality and follow the instructions issued by the judge, they may be eliminated for cause by either side.

Bias on the Bench

Of course, judges are people, too, and thus are equally susceptible to the media they consume. One study concluded that elected judges are susceptible to thoughts relating to public views of crime, which results in more punitive sentencing when cases are widely reported.

Capital Cases

Capital cases can be particularly tricky, both because they are emotionally charged and because they have had top media coverage. In these cases, jurors must be “death qualified.” They will be questioned as to whether they believe they will be able to weigh the evidence presented, including aggravating or mitigating evidence, and truly contemplate a possible sentence of execution and/or life in prison. This can be difficult for anyone, especially if the media has had a strong impact on one’s view of the case before it gets to trial. Research indicates that death-qualified jurors are more likely to watch the news daily and lean toward the prosecution. Continue reading

April 14, 2023

Trump Indicted: Understanding the Process

by David M. Boertje

Whether you are elated or disgusted by the fact that former President Trump was indicted, you are likely curious as to what that means. The district attorney from Manhattan, Alvin Bragg, pursued charges, announced the indictment, and arraigned Mr. Trump after years of questions about the former president’s involvement in a hush-money scheme, surprising many onlookers. How did it all happen, and how will Trump’s experience with a criminal indictment parallel that of a typical person?

What is an Indictment, Anyway?

While most people have heard the term “indictment,” many are unsure as to what it really is. In a nutshell, an indictment is simply the formal term used to encompass an accusation of legal wrongdoing. In criminal court, it means that the district attorney calls for a grand jury made up of randomly picked typical people to hear evidence against a particular individual. Unlike a regular jury, this panel of people weighs information without the presence of a judge, questioning witnesses at will. A simple majority ultimately must determine that there is enough evidence to pursue an indictment.

More About the Grand Jury

A grand jury’s work is done outside of the public eye. The evidence they hear is one-sided because they are dealing with the question of whether or not there is evidence of criminal activity worth pursuing. Later, as in the case of Mr. Trump, if the grand jury votes to indict, the defendant will have an opportunity to stand trial before a jury of peers who hear both sides of the case in a more adversarial setting. Prior to any trial, however, attorneys for the defense may move to have the case dismissed. It could take months, or even years, for a case to finally land in a courtroom for the trial.

After the Indictment

Once a defendant is indicted, they are Mirandized and arrested. That often involves negotiation as to how and when the defendant surrenders to have mug shots and fingerprinting done. Unlike most defendants, Mr. Trump did not have a mugshot taken, largely because it was deemed unnecessary due to his public status. From there, the defendant is given the opportunity to plead guilty or not guilty (Trump pleaded not guilty). The judge then rules on conditions for release by setting bond, releasing on recognizance, and so forth.

Worth Noting

It is important to emphasize a few key points:

In this country, a defendant is still considered innocent until proven guilty. The prosecution must prove guilt; the defense has no obligation whatsoever.
An indictment is an accusation, not a conviction.
Prosecutors must rely on the vote of a grand jury before they are able to indict anyone.
Following an indictment, the conviction rate is over 90% Continue reading

March 31, 2023

Cell Phone Forensics in Police Work

by David M. Boertje

If you paid any attention at all to the trial of Alex Murdaugh, you already know that cell phone data had quite an impact on the outcome. In addition to video taken from the victim’s cell phone that proved Murdaugh was in the vicinity of the murders at the time they occurred, cell phone data also exposed the movements of Murdaugh and his victims and the time frame in which that movement occurred. It may lead some to wonder just how much police can discover and use cell phones during the investigation of a crime.

Phones Aid Police Investigations

Expert testimony in the Murdaugh trial revealed that a single device could generate up to 9,000 pages of information from a set time period. The types of things that cell phones might be used for in a given criminal investigation are numerous, with this list of a dozen uses for starters:

Phones can provide investigators with contacts, frequently visited locations, etc., that could provide leads;
The phone’s GPS can be used to locate suspects;
Phones can be pinged by cell towers to determine their general location;
A person’s cell phone can be linked to a precise location at a certain time;
A phone’s movements, as well as the number of steps taken by the person carrying it, can be tracked;
Data related to phone calls can be preserved;
The time that facial recognition was activated can be determined;
The times that the phone was picked up and set down are recorded;
Social media posts can be retrieved;
Data searches can be recovered (such as how to slowly poison someone, for example);
Investigators can discover with whom calls occurred and the duration of those calls;
Text messages, emails, and photos can all be retrieved.

Getting Their Hands on Data

There are many ways in which police can tap into phone data:

With a person’s permission;
With a judge’s order;
With a subpoena.

To get a subpoena, police must show that they have probable cause to suspect that data on the phone will connect to a crime. The number of criminals who are convicted of crimes in part due to cell phone data increases by the day. Civil rights watchers note that there is a gray area around obtaining such data, however, noting that hundreds of monthly requests for tracking in real-time are made to the largest carriers of wireless plans. Are innocent people at risk of having their privacy invaded? The courts have not said a lot on that topic.

Other Ways Cell Phones Help

Who doesn’t have a cell phone these days? That means the public has the ability to report crimes the second they occur. Even people who are hesitant to interact directly with police make use of anonymous tip lines, often available for texts and/or calls. Another great use of cell phones: people everywhere video crimes are in progress. Continue reading

March 24, 2023

Under What Circumstances Might Criminal Charges be Dismissed?

by David M. Boertje

When facing criminal charges, people are often consumed with anxiety about the future. What will happen to you if you are found guilty? Will the prosecutor aggressively pursue charges, or is there any chance the charges could be dropped before things get that far? These questions and more can be answered by an experienced criminal defense attorney.

Factors Impacting Possible Dismissal

Without question, the best-case scenario would be for the charges to be dismissed early on in the case. That is a possibility, based on purely practical deliberations by the prosecutor, who knows that limited resources might be better spent elsewhere on more serious or more sure-to-win cases. Prosecutors are sometimes willing to drop the charges for first-time offenders, especially when low-level or non-violent crimes are involved. Certainly, there are always cases where prosecutors are willing to plea bargain away possible incarceration, depending on what you might have to offer. Lastly, dismissals sometimes occur due to an error or misconduct by police or prosecutors, including:

Errors in charging documents or criminal complaints;
Chain of custody issues relating to evidence in the case;
Tainted or missing evidence;
Improper searches or stops;
Arrests lacking probable cause;
Changes in witness testimony.

Elements of a Crime

It is conceivable that defense attorneys convince prosecutors that they do not have enough evidence, being that the prosecution has the burden of proving their case beyond a reasonable doubt. What does that entail?

A crime occurred due to the actions or omissions of the defendant (Actus Reus).
The defendant knew that their action (or lack thereof) would result in a crime (Mens Rea).
If the crime is identified by some sort of harm, additional issues must be proven beyond a reasonable doubt.
Either a specific victim or society, in general, was harmed by the actions of the defendant.
The harmful outcomes were the result of a crime.
Other issues related to the crime (known as attendant circumstances) include the time and place of the crime, relevant facts about the victim, procedures involved in the crime, motives, and other facts specific to the crime must also be explained to a jury and convince them beyond a reasonable doubt.

When a prosecutor believes they do not have the facts to prove their case, it gives the defense more ammunition to argue for a dismissal. Continue reading

March 17, 2023

Attorney-Client Privilege and the Crime-Fraud Exception: The Mar-A-Lago Case

by David M. Boertje

Attorney-client privilege is intended to protect lawyers from having to testify against a client and to keep communications related to a client’s defense secret. And who would argue against this basic benefit afforded to those seeking legal advice and those dispensing it? After all, how could a client ever reveal the details of their experience if they had to worry that those details would later be revealed?

In the case of former President Donald Trump, attorney-client privilege has been ruled secondary to what is known as the crime-fraud exception, and the former president’s defense attorney, Evan Corocan, must testify as to what he knows about the potential mishandling of classified documents. Additionally, both hand-written and transcribed notes related to Corcoran’s representation of Mr. Trump in the matter will be made available to the court. So, it seems attorney-client privilege is not always as clear-cut as one might imagine. For clients counting on the privilege, it is worth understanding what it entails and when it may go up in smoke.

Confidential Communications

Any communications, oral or written, between a client and their attorney related to legal advice that occur with the expectation of confidence are protected by attorney-client privilege, and that includes the attorney’s staff who may facilitate communications. Even prospective clients who seek and receive legal advice are protected by the privilege, assuming the attorney made no attempts to deter them from relying on that advice.

Keeping it Confidential

In order to maintain the privilege, the material must remain confidential. Discussing matters outside the legal relationship or with a third-party present could nullify the privilege. Even something as simple as communicating through a work email account constitutes giving up confidentiality.

Exceptions

In general, attorney-client privilege protects material from showing up in a trial, although there are certain exceptions to that rule:

Corporations do not enjoy attorney-client privilege when pitted against shareholders if shareholders can establish cause to breach it;
When it can be demonstrated that there is an overriding public policy interest, the privilege may be revoked;
When the client communicates with the attorney with the intention of covering up a crime or fraud—known as the crime-fraud exception.

Detailing the Crime-Fraud Exception

Certain information is not protected by attorney-client privilege because it falls under the crime-fraud exception:

Threats made by a client against others, including adversaries in the case, witnesses, the judge, etc., must be reported by the attorney representing said client;
When an attorney knows their client has lied or will lie in sworn testimony, it must be reported. It is incumbent upon attorneys not to knowingly present false or perjured evidence to the court;
When the attorney has knowingly helped to cover up a crime, they may be compelled to testify as to what they know.