David M. Boertje

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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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Corporate white-collar criminals enjoyed the lowest prosecution rate in history under former President Trump. But there is a new sheriff in town. According to Deputy Attorney General Lisa Monaco, about 15% of these significant white-collar crimes involve repeat offenders. Now the Department of Justice (DOJ) is toughening its posture toward these corporate offenders. Under Monaco’s direction, a Corporate Crime Advisory Group is conducting a wide-ranging review of policies related to corporate criminal activity and developing new policies aimed at delivering both incentives and consequences when dealing with white-collar crime. If you have been charged with such crimes, you need an aggressive local criminal defense attorney sooner rather than later.

Investigations Expedited

In an attempt to intensify personal accountability when white-collar crimes occur, the DOJ is more focused on prosecuting the top dogs in the corporate world than on merely punishing the corporation itself. New DOJ policies fixate on identifying repeat offenders and prosecuting them. That means the DOJ must look at misconduct within a company more expansively, install more monitors to stay on top of possible issues and make more persuasive demands for collaboration in these cases. Offenders will have to share evidence of crimes and actually name names across the board, not simply point out those involved to a substantial degree. Immediately upon discovering evidence of misconduct, the government will require notification, which eliminates the previous custom of gamesmanship and delay from corporate entities. Companies who continue with their old practices will soon discover that the penalties are delivered more quickly and more heavily than what they may have expected in previous years.

Required Self-Disclosure 

The DOJ has developed policies that definitively outline the expectations of corporate self-disclosure, along with the benefits of doing so. Speedier disclosures result in greater accompanying benefits. Explicitly, collaboration and voluntary remediation by companies could lead the DOJ to forgo efforts to seek a guilty plea or the use of independent compliance monitors, which will result in huge savings for the companies. And we all know money speaks volumes and can be a huge incentive for cooperation. 

Past Behavior Matters

Additionally, a thorough review of the offender’s civil, regulatory, and criminal history will now be weighed as the DOJ considers resolving cases of wrongdoing. That is a difference worth noting, as only conduct similar to current law-breaking was considered when determining how to proceed in the past.

More Prosecutions

There is another potential change worth noting when it comes to repeat offenders. The DOJ is studying the elimination — or, at a minimum, a significant reduction — of allowing lawbreakers to “weasel out” of criminal prosecutions by simply paying fines and making promises that the illegal behavior will not happen again. An entirely new group of FBI agents will be tasked with pursuing corporate crimes and seeking criminal prosecutions when appropriate. Continue reading

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Many parents may not appreciate the fact that dating violence fits under the umbrella of domestic violence. This is a reality that both teens and young adults deal with every day. Dating violence involves both victims and abusers. While it may be impossible to envision your child as a perpetrator of domestic violence, being aware of the signs and symptoms of abusive behavior is crucial if such behavior is to be eliminated before it becomes a pattern. By the same token, teens who have been falsely accused of such behaviors need protection. If your teen has been accused of this kind of behavior and has been charged with criminal actions, it will be necessary to provide a strong defense in order to avoid serious penalties. 

Dating Violence is Widespread

Teen dating violence (TDV) is a serious issue, which is why California statute is so harsh. It is defined as any verbal, emotional, physical, economic, technological, stalking, or sexual abuse among adolescents ages 10 to 24. Consider these national statistics: 

  • 1.5 million high schoolers are directly affected by dating violence annually.
  • One in four eighth and ninth graders report having suffered dating violence, and nearly 10% report having experienced sexual abuse.
  • One in ten students in high school report being physically harmed by someone with whom they are in a romantic relationship.
  • The majority of students who report incidents of acquaintance rape say drugs or alcohol were being used at the time of the incident.

Penalties

A guilty conviction for domestic battery in California could mean your teen will be jailed for up to a year, in addition to being fined $2,000. If your teen is charged with domestic violence, it is a felony, and the time behind bars jumps up to as long as four years while the fine triples to $6,000. Sexual assault could face four years in prison and a $10,000 fine, and a rape conviction could mean up to eight years in prison and $25,000 in fines.

Before Dating Violence Becomes an Issue

Eight in 10 parents surveyed report they do not know much about teen violence, or they do not believe teen violence is an issue. This reveals the need for parents to learn about and intervene with the issue before it becomes a problem! 

  • Model and discuss what healthy social relationships look like and the feeling they engender before teens start dating.
  • Teach teens effective and assertive communication skills.
  • Discuss the warning signs of DTV, such as extreme demands, jealousy, and controlling behaviors.
  • Make it a point to talk to your teen often about their social life, and provide your teen with the knowledge they need to make healthy decisions.
  • Encourage teens to talk to you right away if things do not feel right in their relationships, and then listen without judgment.
  • If you suspect a problem, get help.

Continue reading

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It is incredibly unnerving for an innocent individual to be charged with a crime and dragged through the criminal justice system, especially if a conviction could lead to serious time behind bars! That is why it is so important for suspects to take advantage of their Fifth Amendment rights and request a local attorney at the first sign of an arrest, then say absolutely nothing without that attorney sitting next to them. 

Release? 

In the best case scenario, the investigators will swiftly appreciate that they have the wrong person in custody and release a suspect with apologies for the inconvenience—but that is not the typical outcome. The district attorney could hear the basics of the case before trial and decide that there is not enough evidence to secure a conviction and instruct police to release the suspect—but that is not something to count on either, nor is it necessarily a permanent solution, as they could always build their case and come after the suspect at a later date.

Plea Bargaining

Next up is a plea deal. While many people who insist on their innocence may feel unenthusiastic about accepting a deal where they acknowledge guilt for a lesser crime, the benefits of plea bargaining can make it worth considering. Whether a defendant eventually accepts a deal or not, it is definitely worth listening to and allowing an attorney to negotiate a positive outcome. If no deal is offered, or if one is rejected, the defendant is heading to a trial.  

Trial

Though television drama makes it appear otherwise, only a minority of cases ever make it to trial. The Marshall Project reports that 94% of state-level felony convictions are achieved through plea bargaining, with just 6% of cases ever making it to a courtroom. Federal rates are even lower, with roughly three percent of convictions coming from a jury verdict. If a case is one of the few to make it to trial, the prosecution is likely feeling pretty confident about its case. The goal for any defendant is an acquittal, of course, or a verdict of not guilty.

Verdict 

It is important to remember that every defendant is presumed innocent until proven otherwise. In a criminal trial, that means it is up to the prosecution to prove guilt beyond a reasonable doubt for every element of the charge. Simply put, the prosecutor, through the evidence they present, must persuade a jury that there is no other reasonable explanation for the crime, so the jury is virtually certain of a defendant’s guilt. The defense simply has to convince the jury that there is a realistic possibility that someone else might be guilty. If that happens, a jury will find the defendant not guilty, and the court will acquit. That wraps it up, and you can never be tried on these charges again.

Hung Jury

When a case is complex or emotional, juries may struggle to come to an agreement on a verdict by the required voting margin. While certainly a better outcome than a finding of guilt, this is a result that could mean another trial is in your future. The excruciating decision to put more time and money into a whole new trial can be hard-hitting. A tough defense attorney will pressure the prosecutor to drop the whole thing at this point, but that decision is exclusively in the prosecutor’s hands. Continue reading

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It can take 30 seconds or less to get a response to your 911 call, but it will not be a uniformed officer that shows up first thing. Instead, police in some California cities and across the country are utilizing drones as first responders that can make it to the scene before a human body can get there.  

Advantages of Drones

Drones have been used as first responders since they got their start in Chula Vista in 2018, and their use can be helpful in a number of circumstances. They are equipped with powerful cameras that can scan an area for blocks, or, if necessary, they have the capacity to zoom in on a specific location or to read an address or license plate. They can witness and record crimes as they occur, providing law enforcement with details and data that can inform officer response to critical situations. 

Examples of Drone Benefits

Law enforcement has been struggling with a crisis of confidence from the public in recent years, so whatever they can do to improve their image is highly valued. Specific issues that have been addressed through the use of drones here in California recently include:

  • They clarified that the objects being carried by suspects were not guns, giving officers the confidence to approach with less aggression and use of force;
  • They caught a robbery on camera, clearly taping the suspects, enabling a quick apprehension and conviction.
  • They have been used to communicate in hostage situations.

Privacy Issues

Of course, no new program comes without some caveats. There are those who have serious concerns about privacy rights and the ethical use of footage obtained by drones. Presumably, there will be more footage for agencies to manage, and there are questions about who gets access to that footage, how long it will be retained, and whether scenes showing positive police action will be shared publicly, while footage of police misconduct might be buried. These matters are addressed differently by each jurisdiction. While departments generally do not allow recordings of places where people reasonably expect privacy, such as in neighborhood backyards, they make an exception when there is an emergency or when they have a warrant. As to who gets to see the videos, departments across the state claim it cannot be released under current records laws, although that is being challenged in court. And while there is no disputing that drones can aid police work in multiple circumstances, the government will also have access to terabytes of information on citizen movements that are unrelated to criminal activity, and, to date, the courts have labeled that an invasion of privacy that is objectionable. In fact, constant aerial surveillance in Baltimore was ruled a breach of 4th Amendment search and seizure rights in 2021, although that case was unlike California’s use of drones, in that here drones are deployed only in response to 911 calls, not to conduct general surveillance.   Continue reading

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Billy Raymond Counterman sent hundreds of thousands of Facebook messages years to local country singer Coles Whalen over the course of about five years. Whalen was finally unnerved enough to file stalking charges against Counterman.  The mountains of comments left Whalen feeling frightened enough that she ultimately felt she had to leave her Colorado home in order to keep herself and her family safe. Counterman was eventually convicted of stalking and sent to prison, which is something that a 7-2 majority of Supreme Court Justices found to be a miscarriage of justice. 

The Messages Counterman Left

What was so disturbing about Counterman’s Facebook messaging? The comments ranged from wholly innocuous to a bit disturbing and, later, to plainly mean. Friendly (but maybe a little unusual and questionable) were pledges from Counterman to bring Whalen fresh garden tomatoes for her to enjoy, as well as comments about how stunning she looked during a recent performance he had attended. Ultimately that turned into expletive-filled outbursts accusing Whalen of being no good for human relations, and ending with, “Die, don’t need you.”

What Constitutes a Threat?

Whalen’s attorney contended that when the volume, frequency, and tone of the messages she received were viewed in total, it became clear that the comments were a precursor to violence. The best way to ensure Whalen’s safety would be to put Counterman for a good, long time. That argument worked in court. Even so, Whalen’s sense of security was darkened, affecting family life, her ability to perform, and her overall sense of contentment.

On the other hand, Counterman’s attorney argued that his client had no intention of harming Whalen, and he most certainly did not comprehend the negative implications of his messages because he suffered from mental illness. His interpretation of the messages was that they were harmless, and therefore silencing him would be an attack on his First Amendment Right to free speech. The law required intent, reasoned the attorney, and should not require one to foresee the reaction of others prior to sending a message.

One D.C.-based attorney, John Elwood, summed it up by saying that if someone’s words are not intended as threats, there is no intent to harm, and therefore a conviction cannot be warranted. The Supreme Court agreed.

California’s Stalking Law

Under California law, stalking becomes a criminal offense once the threats or harassment gets to the point that the victim feels their safety is at risk. That leaves many wondering if the recent Supreme Court decision will have an impact on stalking charges here in the state, as they did in Colorado, or if the impact will be only on federal stalking charges.

Stalking Penalties

An initial charge of stalking could lead to a year in jail and a fine of $1,000. If felony stalking is charged based on a threat of significant harm or death, a defendant could face up to three years behind bars and $10,000 in fines. If the charges are part of a three strikes conviction, it jumps to a mandatory 25-year prison sentence. Continue reading

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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

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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

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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

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