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

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.

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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

$1.7 billion: That is how much money seniors aged 60+ lost in scams last year. What is behind the surge in fraudulent cons targeting senior citizens, and how can they protect themselves better? On the other side of the question, what should someone charged with elder fraud do? 

The What and the Why

What, exactly, is elder fraud? It is any kind of scam that exploits older people in an attempt to get a hold of their money. It can involve promises of goods and services, cons to get them to help someone in need, identity theft, and more. The elderly are especially delicious targets for unscrupulous scammers for a number of reasons:

  • They are more trusting in general, especially in the wake of promises from those who assert they are working in the senior’s best interests;
  • They frequently have large savings accounts or own items of value;
  • Some have cognitive issues that interfere with their judgment;
  • Many are afraid to report crimes after the fact, worried they’ll be viewed as foolish or incompetent.
  • They are less proficient with technology, generally speaking.

Common Scams

There are a number of popular scams out there; here are just a few to watch out for:

  • Grandparent Scam: A caller claims to be a grandchild in trouble and asks for money to help them out of a pickle.
  • Government Worker Imposter Scams: Callers claim to be working for the IRS or some other government agency and are verifying (stealing) personal information.
  • Fake Investments: Callers claim to have a fabulous investment opportunity, only to disappear with the money. It could be a false charity, a Ponzi scheme, or any number of scams promising returns that seem too good to be true (and are)!
  • Tech Support Scams: Computer screens scream virus attacks, only to get personal information and/or remote access to one’s computer.
  • Sweepstakes and Lottery Scams: After claiming the elder has won a huge prize, scammers get their hands on banking information in order to transfer winnings.  Surprise—fraudsters clear out accounts this way.
  • Love Scams: Pretending to be a great catch who is totally devoted, this scammer gains the affection and confidence of prey and ultimately “borrows” money.
  • Funeral Scams: Fraudsters find out where funerals are being held and show up, claiming the deceased owes them money, which the family is now responsible for.

Protecting Seniors from Scams

There is no sure-fire way to protect oneself from scammers, but there are ways to minimize the risk:

  • Be suspicious of anyone who wants money or personal information.
  • Purchase antivirus software.
  • Never give money to someone you do not know.
  • Refrain from making impulsive decisions when you are not 100% sure who you are dealing with.
  • If you are suspicious, check the facts by looking up the number and making a call to the real phone number of the agency.
  • Have accounts monitored.
  • Keep lines of communication open with trusted family and friends.

Continue reading

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

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

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

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.

Continue reading

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

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
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