California criminal defense attorney

February 23, 2024

A Speedy Trial?

We hear about the right to a speedy trial—a constitutional guarantee provided by the Sixth Amendment. Nevertheless, we hear about people who are behind bars awaiting trial all the time, which makes one wonder, what does the term “speedy” really mean in this context? And why are nearly 45,000 people sitting in county jails across California even though they have never been convicted or sentenced? Moreover, why have over 1,000 been rotting in jail for over three years, and why have another 332 been there for over five years?

Speedy is Debatable

There is no actual definition of “speedy” in the Constitution, so scholars have landed on the term “reasonable” to describe the length of time someone must wait for a trial to occur. Unfortunately, that word is no more definitive than the word we were originally trying to understand! We can look at legal precedent and see that the U. S. Supreme Court defined a speedy trial as essentially a balancing act where the conduct of both the prosecution and the defendant are contemplated. If that makes the definition sufficiently muddy, perhaps the four items to be considered will help:

The length of a delay;
Reasons for a delay;
Prejudice to a defendant;
Whether the defendant requested a speedy trial.

Still feeling a bit confused? Thankfully, the Speedy Trial Act puts some meat on the bone. In general, a suspect must be charged with a federal crime within 30 days of a summons or arrest. Assuming the person pleads not guilty, a trial must be scheduled for no more than 70 days beyond that date or the date the person appears in court. Local statutes differ by state, but have similar deadlines. Here in California, Penal Code 1382 PC has the following time limits:

Within 15 days of arrest formal charges must be filed;
Trials must occur within 45 days of arraignment for misdemeanors and infractions;
Felonies must go to trial within 60 days of arraignment.

Why Doesn’t This Always Occur According to Time Constraints?

Under certain circumstances, these rules may be modified, which can occur if either party asks the court for a continuance. For instance, the defendant may wish to waive their right to a speedy trial if they need more time to bolster their defense. There may be other reasons to delay the trial, including:

If the case is extremely complicated and more time is needed;
If new evidence changes the route a prosecutor or defense attorney may wish to engage;
If the court calendar is too full to handle the cases in a speedy fashion;
If the defendant becomes ill or otherwise incapacitated and unable to attend trial;
If a natural disaster or other incident (like the pandemic) makes trying the case on time impossible.

January 12, 2024

Fingerprints Studied by AI

by David M. Boertje

A new fingerprint study is in—and plenty of scientists and forensic experts are taken aback: it claims to turn previous understandings about fingerprints upside down and to revolutionize fingerprint analysis in police work. How significant is this study?

The Old Mode of Analysis

Analysts in the fingerprint business have focused on the endpoints and branching in the ridges of fingerprints—called the “minutiae”—as they attempted to match fingerprints with suspects. This has been the emphasis for forensic experts for literally hundreds of years. Never before has the correlation between fingerprints on the same person been studied.

The New Node of Analysis

A study relying on artificial intelligence (AI) has changed the focus. Using this technology—which is the same technology used in facial recognition–researchers studied 60,000 pairs of fingerprints presented to AI. While some pairs of prints belonged to the same person but with different fingers or angles on the prints, others belonged to different people altogether. Scientists wanted to know if the technology could spot the prints that belonged to the same person or not.

Results of the Study

After examining the curves and angles at the center of each print, the computer was able to determine that the prints belonged to the same individual just under 80% of the time. These similarities disprove the old theory that every single fingerprint is different.

Implications

Although this initial research is relatively small, and researchers concede that their study needs replication using a larger and wider database of prints, they think that, ultimately, the findings will impact criminal investigation in huge ways. Innocent people who are suspects in a case can now be off the hook as suspects when their prints—using the new analysis– clear them. And more criminals could be caught with this analysis. Cold cases could be reopened, too. When investigators have only one print on file, AI can still make a match of latent prints, and new leads could be scrutinized as prints at the scene are identified when different fingers identify a suspect.

On the Other Hand…

While the study itself is not disqualifying, some critics say the authors have largely overstated the importance of their work. They say analysts have known all along that fingerprints are different but similar and that the prints on different fingers of the same person are very similar.

When it comes to the claim that reliance on AI can be the basis to reopen cold cases if the prints found at a crime scene are from different fingers than the police have on record, that is pretty much bunk, too. That is because it is common practice for officers to take all 10 fingerprints from suspects who are arrested—so how does the research really impact common practice in the legal field?

What’s Next?

As the study of fingerprints intensifies, one thing is certain: AI can provide insights previously overlooked that can help forensic scientists who are hoping to link suspects to crimes. While it is generally established that further study is necessary, the notion of looking at fingerprints in a whole new way is bringing new clarity to the conclusions reached by investigators and others. Continue reading

January 5, 2024

Is it Legal to Livestream a Police Interaction?

by David M. Boertje

Who hasn’t seen videos of police manhandling citizens who were allegedly involved in criminal activity? Such accounts, usually recorded by interested onlookers, have informed the public of the unnecessary use of force by officers across the country. Imagine how little we would know about Rodney King, Eric Garner, Tamir Rice, Walter Scott, George Floyd, and many, many others had no one taken the time to record the horrendous incidents. But beyond simply videotaping arrests and other police interactions with the public, is it legal to actually livestream them? While livestreaming might benefit the fight for civil rights, might it also hamper an officer’s ability to do their job and even lead to uprisings and riots? After all, we have seen as much with the use of video; wouldn’t livestreaming be even more evocative?

The First Amendment

The right of people to videotape law enforcement officers when they are performing public duties has been repeatedly upheld in courts across the country, which have found that it is unmistakably a right guaranteed by the First Amendment. But livestreaming is another thing altogether, allowing the public broadcast of an officer interaction in real-time. What does the law say about that?

Legal Precedent

Plenty of officers are uptight about livestreaming when they are on duty, saying it interferes with their ability to do their jobs properly and creates the potential for additional dangers. While the law is evolving on this issue, the Fourth Circuit has provided some direction regarding the legality of livestreaming.

The February 2023 case (Sharpe v Winterville Police Department) involved a motorist who was stopped by police. At the beginning of the interaction, a passenger began to livestream the occasion. The officer attempted to take the passenger’s phone, explaining that while the passenger videotaping the interaction was permissible, livestreaming was not because it could lead to an unwanted hazard if others viewing the stream showed up and caused problems at the scene of the traffic stop.

The passenger was having none of that, and challenged the officer’s contentions in court, maintaining First Amendment Rights had been violated. The Fourth Circuit agreed with the plaintiff, writing that livestreaming does contribute to the information the public has about law enforcement activity and is protected by the First Amendment under these circumstances.

Nonetheless, the court did appreciate that officer safety might be an issue in some situations:

In the event an individual became proximate to the officer, inhibiting the ability to perform duties;
In the event viewers of the livestream were invited to the scene in order to demonstrate or otherwise impede the officer’s actions.

Under these circumstances, officers potentially could have more leeway legally to claim that First Amendment protections were limited and might not include livestreaming. Continue reading

December 29, 2023

Can We Trust Black Box Technologies in Criminal Prosecutions?

by David M. Boertje

Law enforcement relies on artificial intelligence (AI) in making determinations related to investigating, charging, sentencing, and even releasing offenders across the country. More and more, AI algorithms are incredibly complex and their pathways are secretive. That has led to the use of opaque technologies, otherwise known as black boxes.

What are We Talking About?

In the criminal justice system, black box technologies use technical algorithms to interpret facial recognition, mixes involving multiple persons’ DNA, and even risk assessments related to the potential for recidivism. It’s a complicated science that is not really understood by most people but that nonetheless has a strong influence on the way people think about evidence both in and outside of a court of law. Investigators, judges, juries, and policymakers all rely pretty heavily on deductions arrived at through black box technologies. This is problematic because that reliance is rooted in secretive and complex science that can easily be misunderstood and is even downright wrong at times.

Regulation Issues

The use of these black-box AI technologies has come upon us so quickly that the legal system has been unable to keep up with regulations in order to protect the rights of individuals pitted against the algorithms. The technologies are top-secret, sometimes by design and sometimes due to corporate cloak-and-dagger moves. When civil rights violations are alleged, it has so far been nearly impossible to make a case simply because the technology is so opaque. That fact, too, has made regulation difficult to date.

Protecting the Secrets

Many judges both believe in and trust these technologies and, in fact, protect them from closer examination. One case involved a challenge to DNA technology and a request that independent evaluators review it. The judge, however, refused the defense challenge and inspection proposal on the grounds that the company would not be able to market its technology if it were more transparent.

Can it Be Relied on?

These technologies can absolutely be trusted to come to fair and accurate conclusions according to the corporations who market and run them. But because they make money based on getting favorable results, and no one else is allowed to take a closer look at the technologies, how trustworthy is it really? It is a question that literally has no answer.

AI explanations do not always stick to a model’s calculations, either. In fact, many explainable methods disagree with one another, meaning some of the explanations must necessarily be wrong, making all of the conclusions invalid. Nonetheless, advocates of the technologies argue that some mistakes are worth stomaching when weighed against the accuracy provided in other cases. Really? And when do we know a mistake has occurred versus when the conclusions were accurate? Is it okay to sacrifice the constitutional rights of some because there’s a chance others will be protected? Is that really an acceptable argument? Are we, as a society, okay with decisions impacting life and liberty being locked up in a black box that no one outside of corporate biggies understands?

Case in Point

In one case, a medical examiner’s testimony based on genotyping software was challenged, and multiple concerns were disentangled as the court took a closer look at the accuracy of the conclusions. Later, another judge ruled that relying on this kind of evidence is a mistake and even advocated a review of convictions based on AI black box technology because independent experts have not been able to examine the technology and corroborate conclusions. That judge estimated that when there are four or more DNA samples being evaluated, black box technologies are likely wrong more than half the time. Continue reading

December 8, 2023

Voter Fraud

by David M. Boertje

A crazy election year is ahead, making it a good idea to take a look at voter fraud issues that could lead to some real problems for individuals who are charged.

Voter Fraud Facts

The truth is that the majority of Americans do care about election integrity and believe that fraud of any kind is wholly intolerable. That may be why voter fraud is tremendously rare in the United States, according to numerous studies, despite claims to the contrary by some. Claims floating around charging that the 2024 presidential election is “rigged” are unfounded, as the number of fraud cases related to voting is minuscule and would not impact election results. Here’s what we know about recent cases of such fraud:

According to one study, the probability of non-citizen voter fraud is zero.
Only 31 credible cases of voter fraud related to impersonation occurred between 2000 and 2014 across the country.
The actual rate of voter impersonation is no higher than 0.003%.
Most questionable issues can be traced back to a clerical error of some kind.
In the 2016 election, there were just four cases of documented fraud.
Mail-in votes have been determined to be just as secure as in-person votes.
In multiple studies, the majority of voter fraud claims have been found to be meritless.

Examples of Voter Fraud

In the event someone did decide to try to commit voter fraud, there are a number of ways to attempt to break the law (although safeguards usually prevent success):

Voting or registering, or trying to do so, in the name of someone else or of a fictional person and forging a signature;
Interfering with mail-in ballots;
Voting despite ineligibility (such as due to citizenship status, felony status, or age);
Casting more than one ballot in the same election;
Voting in the name of someone who has died;
Changing the information on someone else’s registration form or throwing it away because you do not like the party they are associated with;
Buying, threatening, and/or selling votes;
Being paid to vote in a particular way;

Examples of Voter Fraud by Officials

Manipulating voting machines;
Trying to determine who someone has voted for;
Manipulating ballots by throwing them out, changing them, or casting ballots in the name of other voters.

Examples of Fraud by Campaigns or Candidates

Using taxpayer money to campaign;
Secreting the names of those who pay for advertising;
Campaigning within 100 feet of a polling location.

Penalties for Voter Fraud

While voter fraud is extremely rare, when it does occur, offenders can look forward to the possibility of serious penalties, including thousands in fines and years behind bars, depending on the charges. Continue reading

December 1, 2023

Problems With Solitary Confinement

by David M. Boertje

Solitary confinement: while proponents claim it is the only way to control the most violent prisoners, the fact is that in the states that have abridged the use of solitary confinement, the rates of violence have really declined.

Life in Solitary

American prisons are confining tens of thousands of inmates to years, and sometimes decades, in solitary confinement. Oftentimes, these prisoners receive subpar services to address mental health issues that brought them to prison in the first place, so those conditions become markedly worse with their time in solitary. And what groups are disproportionately represented in solitary confinement? Not surprisingly, people of color and trans individuals.

The Cost in Humanity

Long periods of isolation and forced idleness deprive prisoners of the basic human interactions and productive tasks that are needed to sustain mental health, healthy relationships, and pro-social thinking. In solitary confinement, people have no opportunity to use or develop important life skills, such as learning how to take turns, mediate differences, deal with frustrations, and find common ground. Instead, these prisoners’ potential for growth is overshadowed by depression, panic, paranoia, self-mutilation, and a disturbing rate of suicide. These mental conditions are often side-by-side with worsening physical conditions, including hypertension, diabetes, and heart disease.

After Prison Release

When inmates who have spent lengthy stays in solitary confinement are eventually released, they are at a statistically higher risk of a life of crime and substance abuse than their peers, making them at a higher risk of rearrest.

California

Here in California, the governor has vetoed attempts to limit solitary confinement. Lawmakers attempted to create the following limits on the use of solitary:

A limit of 15 consecutive days;
A maximum of 45 days in a six-month time span;
Limited to inmates between the ages of 26 and 60;
Inappropriate for individuals with disabilities.

Despite saying no to these proposed restrictions, Governor Newsom has committed to working with the Department of Corrections to come up with acceptable reforms. Meanwhile, the state lags behind other states in recognizing the dangers of solitary confinement and implementing changes that would benefit both prisoners and society at large. Continue reading

November 24, 2023

Holiday Retail Theft

by David M. Boertje

The holiday season may bring to mind visions of sugarplums and Christmas carols for lots of people, but for retailers, the focus has to be on theft. It is the busiest shopping season of the year, and merchants know that shoplifters are out in full force. Most retail theft—roughly 80%– occurs during the holidays. In fact, shoplifters in 2023. That estimate is up 6 percent from 2022.

Penalties for Shoplifting

When shoplifters are caught and prosecuted, they could face some pretty stiff criminal penalties in California, including fines ranging from $1,000 to $10,000 and imprisonment from a couple of months to as long as 3 years, depending on the value of merchandise stolen and other factors.

November 17, 2023

Vehicular Manslaughter or Homicide Charges

by David M. Boertje

If you have been charged with vehicular manslaughter or vehicular homicide, it means that, as the person charged with the crime, you have been deemed responsible for someone’s death. While you certainly did not intend for things to turn out this way—you were behaving foolishly, and things got out of control—someone is dead, and the state is devoted to making you pay.

What is Vehicular Manslaughter?

Negligence is the underlying principle of vehicular manslaughter charges. It involves drivers who do dumb things behind the wheel when they should know better. Maybe a driver drove too fast through a neighborhood or on a freeway. Perhaps someone juiced the gas in order to get through an intersection even though the light had turned red. Or possibly a driver took just a few seconds to type out a text message while behind the wheel. Drivers who take these kinds of chances can be dangerous on the road, and when their behavior results in a fatality, criminal charges are likely to follow. A misdemeanor conviction could mean up to 12 months behind bars. However, vehicular manslaughter could be charged as a felony if gross negligence is found to have occurred. In that case, the penalties are much stiffer—up to six years in state prison. Your driver’s license could also be revoked for three years.

Vehicular Manslaughter While Intoxicated

When someone is under the influence of alcohol exceeding state limits of 0.08% (or 0.05% for individuals under age 21) or is under the influence of mind-altering drugs, and that person winds up in an accident that kills someone, they could wind up facing misdemeanor or felony charges, depending on the level of negligence associated with the accident. Under the best of circumstances, a guilty verdict could result in anywhere from a year to three years in the county jail. Felony charges could land a suspect in prison for as long as 10 years.

DUI Murder

California law gets even more punitive when repeating DUI offenders are involved in fatal accidents or when previous DUI offenders have been advised as to the dangers of driving while drunk (the Watson Advisement). The law is based on a case involving a drunk driver–Watson– who killed two people as a repeat DUI offender. It has set a precedent in California that means individuals in circumstances similar to Watson’s can be charged with second-degree murder, which could put offenders in prison for 25 years to life.

What a Conviction Could Mean for You

How does life change for someone charged with these kinds of crimes? Despite feeling overwhelming angst at having had a part in someone’s death, the courts will further punish offenders found guilty. Imprisonment for any length of time could change life forever, impacting family relationships, current and future employment, and quality of life for you and your family. Without question, a strong defense is essential going forward. Continue reading

November 10, 2023

The Crime of Resisting Arrest in California

by David M. Boertje

Just because you disagree with the police about whether or not you deserve to go to jail, it does not mean you have an equal say in the matter. As officers attempt to handcuff you, your first instinct may be to resist their efforts. Maybe you can think of 20 excellent reasons that cops are out of line or have the wrong guy, but none of those reasons give you the right to fight back against officers who are trying to cuff, transport, or book you into jail. You are much better off cooperating and getting your comeuppance in court—because if you get charged with resisting arrest, the consequences may not be very pleasant.

What Does Resisting Arrest Look Like?

Every scenario is different, so drawing a picture of resisting arrest is a little bit complicated. The legal definition refers to willfully delaying, resisting, or obstructing a peace officer, public officer, or EMT as they are attempting to do their duty. It can include disrupting or impeding communications over a public safety radio frequency and certainly includes any attempts to disarm an officer of the law. Now, some of this could be interpreted differently by various stakeholders in different situations. Does heckling and name-calling fall under the statute? What about running or hiding from an officer? What if you are a bystander who argues with the cops? The shades of gray involved could make a prosecution a challenge when an adept defense is launched.

Defending the Charges

Depending on the circumstances, it may be possible to demonstrate that a defendant had no intention of interfering with an officer’s duties. Another tact might be asserting that there were no legal grounds for your arrest or that there was an unlawful use of force against a suspect who simply tried to mount a reasonable defense. Finally, it is possible the allegations of resisting arrest were concocted to begin with.

Penalties for Resisting Arrest

The penalties for resisting arrest are pretty consequential: a guilty verdict could land you in jail for a year in addition to $1,000 in fines. If a weapon is involved, penalties increase substantially. That could have significant implications for family relations, employment, and your future in general. Continue reading

November 3, 2023

Was the Wrong Person Charged With Domestic Violence?

by David M. Boertje

Are you facing domestic violence charges even though you are the real victim of abuse? If so, you are looking at some serious legal penalties. If prosecutors have it backward, and the violence in your relationship is directed at you, proving otherwise could be a tough job. But oftentimes, when heterosexual couples have violent relationships, men are often assumed to be the aggressor. But is that always accurate? The truth is that men do wind up on the receiving end of family violence more often than some people realize.

DV Charges

Spousal abuse is a crime, and if you have been wrongly accused, you should absolutely fight the charges. Otherwise, the consequences could be life-changing, including:

Impacting your ability to secure employment;
Destroying your right to own a gun;
Paying substantial fines (as much as $6000 for a first offense);
Going to jail (up to four years, depending on charges).

Bias Against Men in DV Cases

When we hear about domestic violence, women are usually thought of as the victims, which is accurate in many instances—but not always. As unlikely as it may sound, men are victims of DV, too. They often fear they will not be believed if they report it or try to get help. Unlike women, men know many people will think of them as pathetic and feeble, if not as a liar. Especially when a man is physically larger and stronger than his intimate partner, some will find it difficult to believe he is being abused. Even so, men do experience violence from domestic partners with alarming frequency, and they often cannot get the help they need because of societal bias:

There are hundreds of studies substantiating that when relationships are violent, women are equally likely to be the aggressors. Studies reveal that roughly 40% of reports of serious violence involving former or current partners are filed by men, usually involving an attack by women.
In spite of these facts, when police are called to intervene in a domestic dispute, they are more likely to arrest both individuals only if it involves same-sex couples. When police are called to cases involving heterosexual couples results in men being arrested.
Women are much more successful than men in securing protective orders.
Mock juries who witness DV scenarios are more likely to assign blame to men than to women when presented with violent scenarios, regardless of which partner is the perpetrator of that violence in the scenario.

Violence Against Men is Real

Any violence in a relationship is very serious. The Centers for Disease Control reports that between 10% and 15% of males surveyed say they have experienced serious violence at the hands of an intimate partner. What kind of violence are we talking about?

Hair pulling;
Punches and/or kicks;
Being burned;
Being slammed against a hard surface;
Being struck with a heavy object;
Suffocation and choking;
Being beaten;
Being threatened with a knife or gun.