No More Slam Doughnuts AKA The Case of the Magic Cell Phone

        In case that would have ordinarily have been a slam dunk for the prosecution and a one way ticket to the slammer for my Client, a Bay Area Veteran Police Officer had to hire his own lawyer to explain allegations that: Veteran violated Client’s constitutional rights; that Veteran repeatedly lied to the court and to the prosecutor to cover-up the violations, to explain how  Client’s phone made a phantom phone call from his phone after Veteran booked Client into police custody; and to explain why Client’s phone disappeared from the evidence locker for almost two months after Veteran booked it into evidence.
  On July 6, 2014, Veteran was driving on patrol when he noticed a Ford Mustang broadcasting loud music and loud exhaust from “about 70 feet”away. Veteran supposedly saw Client make “multiple lane changes” without signaling.  After Veteran stopped Client, he noticed Client displayed signs of drug intoxication, so Veteran ordered Client out of the car to search it.
        Inside what could only have been Hunter S. Thompson’s car, Veteran found a backpack in the trunk which contained a firearm, a bag of marijuana, and 71 $20.00 bills.  Veteran noticed some loose panels in the dash, so he unscrewed the dash and he found another pistol, cocaine, MDMA powder, MDMA pills, Xanax pills and methamphetamine.  He also found a bullet proof vest and a high capacity magazine containing 13 rounds of ammunition.   Not bad for a traffic stop, but unfortunately, Veteran was not satisfied with the numerous felony gun and dope charges-Veteran still wanted evidence that the drugs were possessed for sales-- so he could increase Client’s punishment even more, and maybe he violated the constitution to get it.
  The plot thickens, Veteran  alleged that while booking the suspect, and without pressing any buttons or activating the phone in any way, Veteran noticed a text message magically appear on Client’s phone which asked simply: “Can I get one”?  This text , was sufficient to convince a judge to issue a search warrant to search Client’s cell phones and his home for more evidence that Client was a dope dealer.  They say timing is everything.  One month earlier, the Supreme Court ruled that Cops could no longer search a cell phone after an arrest without a warrant.  Maybe  Veteran didn’t get the memo; perhaps that’s why Veteran insisted the text magically appeared on Client’s phone without his assistance.  We may never know.
        Veteran’s traffic stop evidence, his “unbiased” expert testimony that the text message proved that the drugs were possessed for sales, and his opinion that the guns were used to protect Client’s dope trade from rogues, thieves and robbers, were all enough to satisfy a judge to issue  a search warrant to search Client’s home and phones.  Veteran’s evidence convinced the prosecution to elevate the charges from simple drug and gun possession to the more serious charges that the drugs in Suspect’s possession were possessed for sales.
        I retained a renown cell phone expert to examine the exact make and model phone as the phone seized from Client and he declared under penalty of perjury that there was no way Veteran could have seen any incriminating text messages without illegally searching the phone.  Once caught red-handed violating Client’s constitutional rights and then lying to cover-up his misconduct,  Veteran  tried to cover his tracks and obtained a grand total of four search warrants.          
        Why Veteran removed the phone from the evidence locker for almost two months after he booked it, we will never know.  The District Attorney hired its own expert who discovered that Client’s phone made a mysterious outgoing call from the Police Department after suspect was booked into custody and had no access to the phone!  Incredible.
        After an aggressive round of pre-trial motions to convince the court that Veteran lied to four different  judges about violating Suspects constitutional rights, the District Attorney dismissed all charges and Suspect went home.  The DA’s investigation of Veteran's misconduct  is ongoing.


When the Police Violated The Sixth Amendment, He Got A Restraining Order

I have a client who is a smart, dedicated private investigator.  His name is Eugene Borghello.  During a murder trial in which Gene was the investigator for the defense, Gene was threatened by the investigating police officer after the cop learned that a woman passed Gene a note during the trial alleging that the cop's ex-wife had an affair with a member of the defendant's family. The cop went ballistic and had a fit and threatened Gene. At one point the cop even said: "You better watch your back."  Given the immense power the police have in general, and Gene's personal knowledge from independent sources of the dangerous acts the particular cop in question has perpetrated in the community, Gene sought a restraining order against the police officer to protect himself against any retaliation from the officer so he could get the court to help him "watch his back" because he felt the cop's threat was credible.

When a police officer threatens a member of the defense team during a murder trial, he threatens to undermine the alleged fairness of the criminal courts.  (I don't use the term "criminal justice system" because I think the term is an oxymoron) We have all heard of stories where the police have shot and killed someone, and when the prosecution tries to "prosecute" the officer, the good citizens of this country, like in Ferguson, Missouri who sit on our grand juries, fail to issue an indictment against the cop for murder --even though most grand juries would indict a ham sandwich.  Seriously, according to the most recent accounts of justifiable homicide by police reported to the FBI, a white police officer killed a black person nearly two times a week in the United States during a seven-year period ending in 2012.   That's almost 104 African American human beings a year killed by white cops.  If the police can "justifiably" can kill them, they could kill justifiably kill you or someone you love.

We have heard of cases in the media where the police are seen on video violating the civil rights of citizens in Antioch, CA and San Francisco.  So why would Gene file a petition for a restraining order on a cop when cops as a rule get preferential treatment? Because Gene has a right under the First Amendment to seek protection from the courts--even if the person who threatened him is a police officer.  Gene also knows the system and how cops get away with all types of conduct and he knows from his training and experience (he was a cop too once in San Mateo County) how dangerous cops can be.

So why does a criminal defense attorney represent a PI who seeks protection from the court from a rogue cop?  Because we have a duty under the Sixth Amendment to protect the defendants and their defense team from being intimidated by the police in a criminal case.  In my opinion, if the police can intimidate a PI in a murder case, then they can undermine the integrity of the courts by threatening and intimidating those who have sworn to uphold the constitution and make sure everyone gets a fair trial.  You can't have a fair trial or a fair system if the defendant can't have a private investigator gather facts to tell his side of the story.

The fact is that the police and even the prosecutors in this country enjoy special privileges that the rest of us will never enjoy.  They can lie in open court and in front of the judge and get away with it. The prosecutor who puts the cop on the witness stand ignores the cops perjury, and sometimes I have even seen juries ignore the cop's lies too.  If you don't believe in prosecutorial corruption, watch the You Tube video below. In the video, you will see the Ninth Circuit Court of Appeals ask the state prosecutor why the Riverside County prosecutor, his snitch witness, or the second prosecutor who testified against the defendant were not prosecuted for perjury and suborning perjury. Start this You Tube video at 26: 14 seconds and watch the federal judges slam the California Attorney General's attorney for this egregious case of prosecutorial perjury which was condoned all the way to the state court of appeal: https://www.youtube.com/watch?v=2sCUrhgXjH4.

When it came out that, neither the Riverside county prosecutor who suborned perjury, nor the snitch, nor the lying prosecutor were prosecuted for perjury, Justice Kozinski suggested that the perjury would continue in Riverside County when he said: " They are going to keep doing it because they have state court judges who are willing to look the other way." These are not my observations but the observations of a federal judge about corrupt prosecutors who are protected by state court elected judges.  Most Police Departments pay campaign contributions to help elect some state judges and prosecutors.

By the way, if you are interested, here is a link about Gene's case: http://www.dailyrepublic.com/news/crimecourts/judge-delays-hearing-on-restraining-order-bid-against-police-detective/

We can only hope the judge in Gene's case listens to the evidence and "watches Gene's back" so he can continue to investigate cases of people who are tried for murder without fear of retaliation.  Sometimes even innocent people are prosecuted.  I know of four of my own clients who were acquitted of murder, one client was acquitted of attempted murder, and one client was acquitted of torture, mayhem, and felony assault with gang enhancements (this case was all on video) in Solano County alone in the last 15 years and I couldn't have gotten acquittals without a good investigator like Gene.

I'm not anti-police, I'm just saying, "Watch your back" and let them see your hands at all times.


The Tale of Three Monkeys and the Government's Attempt to Transform a Real Estate Agent, His Wife,the Broker, and Two Successful Real Estate Investors into Convicted Criminals

On August 22, 2014, a Sacramento federal jury returned a verdict of not guilty to all counts against all four defendants in a bogus mail fraud and money laundering prosecution. See the news story in the Sacramento Bee.    

Here is how my three colleagues, Toni White, John Balazas, and Daniel Koukol, and I viewed the evidence presented at trial. Each of our defendants had material defenses on the various elements of fraud.   We also presented a broader challenge to the prosecutions through the testimony of our expert, Professor William Black, professor of economics and law, white-collar criminologist, and former financial regulator. This federal prosecution against four Russian Americans was nothing more than the government’s attempt to punish our clients instead of the real crooks, the bankrupt lenders who designed the system that pumped out millions of phony mortgages that destroyed the global financial system.

Literally back in 2006, all one needed to get 100% financing on a home, was for the loan application to state any income desired and the banks would lend the money. These loans were called stated income loans, or “liar loans.” During trial, the lender’s underwriters’ testimony was that the lenders were forbidden to verify income or employment.

How could this be you ask? Well, as the GreenPoint Mortgage flyer with the three monkeys suggests, the officers controlling GreenPoint, and the other lender in the case, Aegis Mortgage, ordered their underwriters not to verify the borrower’s willingness to repay the loan. The underwriters were ordered by their bosses not to conduct essential underwriting.

Astounding that my client, who could have submitted any income amount on the application she wished,was prosecuted when she instead submitted an application with the income and employment sections left blank pursuant to the bank’s lending program which called for the income and employment section to be left blank – for the express purpose of making it impossible for the underwriter to even “guess” at the borrower’s income. The loan was funded, and my client was still prosecuted even though she had nothing to do with the decision to fund the loan.

The federal government was and still is aggressively prosecuting the little people in the mortgage crisis: the real estate agents, brokers’ representatives, and the borrowers who thought they were going to get rich flipping houses in a modern day Gold Rush. The government refuses to prosecute the the fat cats who brought this country and much of the global economy to its knees walked away with millions of dollars in bonuses made possible by leading the “sure thing” of “accounting control fraud.”

Professor Black, whose credentials would take up this whole blog, explains how during the trial, the government tried to defend the crooked lenders who he exposed during his testimony in their scheme to defraud the people of the United States of America through what he called “control fraud:” “The [government] tried to become the defense counsel for the ‘worst of the worst’ lenders as innocent victims, but the evidence from the agents at trial was that they never investigated the banks in this case because they assumed that they were innocent victims -- and that in eight years of ‘investigations’ of ‘mortgage fraud’ they had never investigated the banks or any bank officer. [Chief Assistant United States Attorney of the Eastern District of California Benjamin] Wagner has given interviews published in the WSJ revealing that he believes he has a valid fraud case against [JP Morgan] based on it conspiring with senior GreenPoint officers to restructure their secondary market sales to JPM to try to hide the toxic nature of GreenPoint's loans. The ‘three monkeys’ ad makes it clear that GreenPoint's ‘decision-makers’ invited toxic loans as their regular course of business.”

The bottom line folks is that these crooked lenders created these “toxic” loan programs so they could get rich reselling these loans to willing buyers at Wall Street Banks and they left the borrower out to dry. Now the government is prosecuting the borrowers for taking advantage of the crooked loan programs instead prosecuting the real crooks who created the loans. For more information, read the updated version of Professor Black’s book: The Best Way to Rob a Bank is to Own One (published in 2014). It explains how the banksters’ frauds caused the financial crisis and the Great Recession.


Jailhouse Etiquette 200 -- Checking into Prison

I had the privilege of defending a young man convicted of two very very serious felonies because the jury said he used a gun to commit an ultimate sin on two different people for no good reason.   Sadly for my client and his family, he will enjoy the services of the State of California for the rest of his natural life.

San Quentin Prision
San Quentin's Welcoming Look
San Quentin is the receiving center for the Bay area for those convicted of felonies.  As of December 2008 the “Q” was one of the largest prisons in the United States with a population of 5,222 inmates.  Upon your arrival at your smelly new home, they make you throw everything you are wearing as you enter the hallway of the hallowed institution into a trash container. What ever personal property they let you keep depends upon the guard who goes through your stuff.  You are then ordered to dress in prison blues.  Hopefully they give you a shower, then they spray you with some kind of bug killer in case the county jail you came from had a lice or bed bug problem.  It should be no surprise that most county jails are not very clean. You are given underwear, socks, shoes, or boots and the clothing –including the underwear-- is probably used but washed in the prison laundry.

If you arrive at approximately 7-8 am, you are then given a series of medical check-ups and that can take up to twelve hours to complete.  Some receiving centers have you line up en masse and they check your penis and testicles while you are in the company of large groups of naked men and then they have you bend over and cough so they can make sure that you have not tried to smuggle money or other contraband into the institution in your anal cavity.

After your very intimate physical examination, you are then sent to a “counselor” who asks you a series of intimate question of a psychological nature, questions about the nature of your offense ad whether you are suicidal, among others.  Just a word, if you are convicted of murder, you are going to a maximum prison no matter how sorry you tell them you are about your offense.  The term of imprisonment largely dictates the number of points you will get.

You are then given a numerical value which reflects the level of the security of the institution to which you will be sent after your brief visit at the “Q.” There are four levels of institutions in California. Level 1 is for housing the least dangerous inmates and Level 4 housing is for the most dangerous. The Inmates Classification Score is used as a primary factor to determine the level of institutional placement.

Inmates can get points for commitment offense, unfavorable behavior, background factors, prior prison or jail behavior and special case factors. The new arrival can also have points taken off for favorable behavior.  If you are convicted for a crime of murder for example, you will most assuredly be sent to a level 4 institution until your “points drop“ which can take years to accomplish.  The good news for a lever 4 inmate is that he (or she, yes women are murders too) gets to spend their time in a two man cell rather than on four man bunk beds in some gym somewhere.

I’m told that the food in prison is better than in the county jail and that meals showers and the yard are the best events in prison.  You also get to visit the law library once a week to work on your appeal.

In short, prison has its advantages and if you have to do a long sentence you are better in prison than in the county jail.  At least the food is better.

If you are faced with a prosecution that would give you a trip to the San Quentin, make sure you present an excellent defense.  Visit the criminal defense attorney's website and contact Tim for help!


Sometimes the Jury Gets it Wrong

Trial by jury is the most democratic way to decide a case. But, as every ad agency and marketing person knows, people can be manipulated by skilled story teller.  A jury is made up of 12 humans, and sometimes they get it wrong.

I am known for fighting police officers in court, pointing out when they have violated his client’s rights.  But, I defended Officer Stephen Tanabe against 7 Federal charges that allege that Tanabe committed fraud while acting as a peace officer.  I thought he deserved a jury trial that would clear his name from the false charges made by a former “friend”.

In my opening statement at trial, I said that during the trial I would attack the credibility of the prosecution’s witnesses.

I felt that the government was believing the word of people who testified in the hopes that they would receive favorable treatment in cases against them. “These are people who built their careers on lies, deception and destroying people," I told the jury.

I think I did a decent job pointing out inconsistencies in the witnesses’ statements and getting the witnesses to describe their not-so-savory behavior.  The San Jose Mercury News went even further.  It reported that I hammered the main prosecution witness with my questions.

Dr. Phil on the PI Mom's Scandal
Dr. Phil was so upset that he believed Butler's story
that he ran this second segment about Butler's fall.
Unfortunately, the witness, convicted felon Chris Butler, is a great manipulator.  In the past, he convinced Dr. Phil, People magazine, the Today Show, Lifetime Television, and the Contra Costa Times to feature him doing fake investigations, according to Peter Crooks in Diablo magazine.  In fact, read all of Peter’s story called “The Setup” to find out how many normally suspicious people – including cops and journalists – were successfully and completely deceived by Butler.

In court, Butler was a good witness.  Despite the facts of his past criminal activity, his pattern of lying, his pattern of setting up others for a fall to protect himself, in person he seemed honest.

In my opinion, Butler manipulated the government prosecutor and the jury. He got them to believe events that I don’t think happened.  I pointed out what was wrong with Butler’s stories to the jury, but it didn’t matter.  He is that good!

My client was convicted of six counts of conspiracy, extortion, and multiple counts of wire fraud.  I think the people on the jury were the most recent victims of Butler’s manipulation of reality. He and his family were devastated.  Now Stephen Tanabe, a respected police officer, has been taken down by a friend who is looking for time to be shaved off his own prison time.

Going to trial is always risky, no matter how strong the facts are in your favor.  A good story in the hands of a skillful manipulator is powerful.  Innocent people often plead guilty to lesser charges to avoid facing the uncertainty of a jury.

I recommend that my clients go to trial only when the prosecution is being unreasonable and I think I have a good chance of convincing a jury to vote Not Guilty.  Given the facts as I know them, Officer Tanabe should have won in court.  However,  as every trial attorney knows, sadly, sometimes the jury gets it wrong.


The Eastern Sun and a New Day

San Francisco Defense criminal defense attorney remembers his hippie phaseI remember the eastern sun streaming through the dirty sliding glass door on the East Side of our home on Fleetwood Way in Bakersfield, California, after a long night of dropping LSD and drinking Budweiser.

I would awaken with the pounding sensation in my addled and disoriented brain and the feeling of extreme nausea which would well up into a cascade of vomit of yellow bile which would produce a fountain of a multi-colored stomach contents.  We used to call it “the technicolor yawn,” “praying to the porcelain god,” “yacking,” or just plain puking your guts out.  This unpleasant side effect wasn’t from the acid, but from the beer that followed the acid that made me so sick.  But I loved beer, so I drank it anyway.

For me, it was a necessary price to pay for what we regarded as partying, tripping, or getting high, which usually included copious amounts of LSD in different forms: blotter paper or microdots (small saccharin tablets coated in LSD).  Sometimes we would get liquid acid on a sugar cube or crystal acid in its raw form, which was the most powerful.  My record was 22 hits of yellow microdot.

San Francisco criminal defense attorney had fantasies about police and can-can girls
That shit had me hallucinating: a parade of police officers dancing into my room with circa 1920's police uniforms carrying nightsticks followed by girls doing the can-can.  I loved acid during my formative teenage years.  On my very first trip, I saw a spaceship shooting red and white lights into the sky – it was one of the most beautiful, colorful sights I had ever seen.  There is something about hallucinogens that I can barely explain except that it produces mind and body experiences that a dummy like me would risk suffering a felony conviction – or even a gunshot – just to get high.

When I was about 16 years old, I was in Boulder, Colorado, smoking marijuana, but before I lit up, I stuffed about 100 hits of LSD that I had in a baggie into a Marlboro cigarette box.  I’m glad I did.

I was smoking away that night in the bushes, and when I looked up, I saw a Boulder Police Officer shining a flashlight on me.

Like any intelligent 16-year-old would, I started to run when I saw him, but by the time I reached the other side of the bushes, he had his gun pointed at me, and he threatened to shoot me.  I stopped dead in my tracks.

He searched me and found and subsequently seized the pot I had, but he never found the LSD I had stuffed in the cigarette box, which I had dropped somewhere along the way. I never went back for it either.

By the way, the Supreme court regards a police shooting as a seizure under the Fourth Amendment to the U.S. Constitution, so if the police shoot you unlawfully, your relatives can sue the police for killing you even though you are dead, but I wouldn't recommended getting shot for running from the police.  It’s simply just a bad idea.

If you need help (before you're dead) because you've been accused of drug possession or other crimes, check out my criminal defense website and give me a call at 415.495.4800.