The Eastern Sun and a New Day

I 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.

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.

Fast Car, Reckless Arrest

I remember my first high-status car.  I thought it would get me girls, but it didn’t.

What it did get me was arrested.  I received my first moving violation and trip to the L.A. County Jail driving that car at 105 miles per hour on Interstate 5 in California in a 70 mile per hour zone on the mountain pass known as the “Grapevine” that divides Bakersfield from the Greater Los Angeles area.

“Can they really arrest you for driving too fast!?”  I asked as the cop was slapping handcuffs on me.

It was circa 1979, and I owned a bitchin’ 1979 Chevrolet Camaro.  I was very proud indeed of that car and its power.  I dreamed that I would drive to the great nightclubs and discotheques in West Hollywood and meet a beautiful girl and find romance.  One evening, I was on my way to fun and adventure in tinseltown –  Hollywood.  I found the adventure and the cops found the fun.

I didn’t realize that the California Highway Patrol used aircraft to catch speeding motorists until I was unceremoniously arrested after being pulled over for reckless driving. I was taken to the Newhall office of the California Highway Patrol where I was cited and released and told to return a couple of weeks later.

I returned to court, and like an idiot, I represented myself, so I had a fool for a client.  My lawyer advised me to plead guilty to reckless driving on the first court date and was ordered to enjoy the luxury and the services of the LA County Jail for three days.

I returned to Newhall in 1979 and was put into a holding cell where I was transported on a huge black and white Jail Bus that I believe had “Los Angeles County Sheriff” painted on it.  It was an extradition bus, which is kind of like the Greyhound of County Jail transportation, and the stops are the holding cells of all the substation holding facilities of all the LA Police Department from the Grapevine through the valley to the Downtown LA County Jail. The bologna sandwiches were terrible but resembled something I had eaten before; they reminded me of the food in the Kern County Jail.

In the LA County Main Jail, I remembered that the jail cells were several tiers (jail floors are called tiers) tall.  The jail was so big they used an escalator to transfer us from our jail cells to the chow hall where we had five minutes to eat.  When you walked down the hall to chow, you were required to keep one hand in your pocket and the opposite shoulder on the wall as you traveled down the hall, or you would catch a beating.

The jail is so big it literally took three days to book me into the jail.  They take you into a room with glass walls where you were required to be frisked and strip-searched, and you were given a cursory medical exam that included a genital exam, an x ray, a blood test, and a spray down of bug spray for lice.  One guy shook his penis at the doctor who simply told the jailers “I don’t like this guy,” so they put him in the drag-queen tank in the jail. As soon as your batch left the tank, a crew of trustees would squeegee the glass with bleach and a new batch would come in.  The booking process was endless and lasted around the clock.  You were booked, photographed, and issued a mattress and LA County designer clothing to wear during your stay. At night you could hear screaming, moaning, pleading, and fighting.  How I left that jail with my virginity I will never know, but I did.

I don’t know about you, but since then, I always tried to keep it under 80 MPH in California after my visit to LA County Jail.

If your hot car has gotten you into jail, or you're in for something a lot more serious. don't do what I did and represent yourself!  Call me at 415 495-4800 and talk to a specialist in criminal defense, and check out more information on the San Francisco Criminal Defense web site.

What the Jury Needs to Know

In my opening statement to the jury defending a client “Juan” against first-degree murder charges, I said that my had no intention of helping co-defendants “Pedro” and “Miguel” shoot anyone.  I explained that Juan thought he was picking up a couple of guys who he could smoke some dope with after his day at work.  I emphasized that my client was a steady, well-liked laborer with no history of gang involvement or criminal activity.  He was surprised and fearful when the guys he thought he was going to smoke with came running back to his car toting guns.  He drove away from the scene because there was gunfire and the guys with guns in his car told him to keep going. 

The jury is going hear a lot of facts in the trial.  My job is to show the jury how to put the jigsaw-puzzle bits of facts flying at them into a picture that correctly shows what my client did and didn’t do.  The jury needs to know that the picture I give to them is a reasonable one and that what the prosecutor wants them to see just doesn’t exist.

Laying out the narrative of the event – alerting the jury what they should expect to see and not see – is critical.  These 12 citizens are going to be sold a slick story by the District Attorney, police, and a cadre of witnesses who routinely testify at trials.  These folks are skilled – and I have to help the jury to see past the polish and the professionalism and to examine the lack of the actual evidence against my client.

I want the jury to watch for the prosecutor to show them that my client was a gang member –- she cannot.  And, then I want to jury to understand the importance of that missing piece in the prosecutor’s story of the day. 

I want the jury to see if the prosecutor’s theory that my client knew that he was helping gang members kill a person in a rival gang makes sense.  My client worked regularly at a legal job where he was popular – there’s no evidence that he supported himself by criminal acts. There’s no evidence that he was planning anything special that day. In fact, the shooters called my client’s cell phone asking for a ride when he was shopping at a local mall.  There’s no evidence that my client was or is a gang member.  Instead, there is evidence that Juan didn’t and doesn’t participate in gang culture. 

Juan was a young man who wanted to relax by smoking marijuana after a hard day at work. All of the jigsaw-puzzle pieces fit that picture.  It is a human and normal picture. And, the picture the DA wants the jury to see has missing piece after missing piece.

My opening statement was designed to spotlight the pieces missing from the DA’s story.  I want the jury to start watching for those missing pieces from the moment the trial opens. Because, if  those pieces are still missing at the end of the trial, the jury will find my client not guilty.

The real-life trial which sparked this entry was still in progress when I wrote this post.  I have changed some of the facts (names, etc.). But, if you would like to discuss your case with a criminal defense attorney, please contact me.

I'd Rather Go to Jail than Prevent You from Getting a Fair Trial

As I write this I am preparing to go to jail for five days for contempt of court because I could not agree to start a trial next Monday in Alameda County. I don’t want to go to jail (who does?). But, I cannot comply with the judge’s order and still give my client the effective defense he is guaranteed by the Sixth Amendment to the US Constitution.

My client is on trial for murder and facing possible life imprisonment without the possibility of parole. The prosecution recently disclosed some potential evidence which our investigator needs to check out – that may take until mid June. Other experts for the defense are also not ready to testify on Monday.

We cannot mount an effective defense in Alameda County court next week, regardless of how angry or annoyed the judge is. My oath as a lawyer and the ethical standards of the American Bar Association, California Business and Professional Code, and plain morality won’t let me put my own comfort ahead of my duty to my client. I cannot lie and tell the judge we are ready for trial.

I cannot ignore my client’s right to effective counsel himself simply to keep my own ass out of County Jail.

Don’t get me wrong. I take scheduling seriously and try to move forward responsibly with all my cases. In this instance, I did not foresee that there would be a problem.

My Alameda client had waived his right to a speedy trial, and I expected that his case would proceed after the conclusion of another murder case – this one is in Solano County – that is scheduled to start April 30th. The Solano case involves three defendants, which would make rescheduling that case more difficult. More importantly, in Solano County the defense will be ready when the trial starts.

Alameda Judge Carrie Panetta said that the case in her courtroom was older than the one in Solano so she thought I should be ready to try the one in her court first. I meant no disrespect to Judge Panetta when I explained that the defense could not be ready on the timeline she laid out.

Unfortunately, evidence and witnesses and experts are not always ready in the same order as the DA’s filed the cases. I do not honor the Solano Courts more than the ones in Alameda, and I don’t take Alameda judges less seriously than the Solano County jurists. It is just that the defense is ready in one case and not ready in the other.

The lawyer representing me in the contempt cases (I follow my own advice and never represent myself) is Daniel Russo. Dan says that the contempt finding against me is unfair and he is going to appeal Judge Panetta’s actions to the California Court of Appeals.

I hope Dan is successful and that I don’t have to go to jail this weekend. But, even if the appeal fails, I have no choice. I rather go to jail than to give my client a second-rate defense. His future depends on an effective defense, and I will give him the best defense possible… when we are ready.

UPDATE, 4/19/12 —
My attorney, Dan Russo, has filed an appeal which resulted in a postponement of the sentence. The Alameda Courts have until May 30th to respond to the appeal.
Read the news story.

Trayvon Martin's Death and Highlights of California's Law on Self Defense

Given the uproar over the shooting of the unarmed Trayvon Martin in Sanford, Florida -- well he was holding a bag of Skittles wasn’t he? -- I thought I would try to explain why everyone, including President Obama, is so outraged that the shooter was not arrested for murder, and why his claim of self defense is regarded as absurd.

In California, you have a right to use a reasonable amount of force to protect yourself from an assault, which can amount to deadly force if needed. Unlike other jurisdictions, in California and apparently Florida, you can stand your ground and defend yourself. Remember, you cannot use deadly force on an unarmed man, unless you honestly and reasonably believe that the person you shoot is about to use deadly force against you. If the jury believes that your self-defense claim is honest and reasonable, you are not guilty. If the jury believes that your fear that the dead guy was about to use deadly force against you was genuine, but that your fear was unreasonable, you are guilty of voluntary manslaughter. If the jury believes that you committed an unlawful death without the intent to kill, you are guilty of involuntary manslaughter-- like the Bart Police Officer Oscar Grant. A great example on the law of self-defense comes from my mom in Bakersfield, CA.

It was always a rough and tumble hard-scrabble existence in the early 70s inside the honky tonk bars in those tin buildings along Edison Highway just outside Bakersfield. Mom loved the excitement of the Edison highway bars where one could always count on a night of dancing to country music, or an occasional good old bar-room brawl in the sultry summer night heat. One day, mom was trying to help a barfly find work as a fry cook in one of the greasy-spoon diners, so she drove over to his half-way house to give him a ride. When she picked him up, he was already drunk and acting surly, so mom turned the car around to drive him home. On the way back to the half-way house, he pulled a knife on her. Big mistake.

When the gentleman pulled the knife out, she elbowed the drunken savage in the throat, took his knife away from him, and in her own words, “slashed on him.” He immediately jumped out of the car and dove under the porch of the half-way house and cowered there like a wounded animal until the police arrived to rescue him.

The drunk was bleeding profusely when the police showed up and found mom holding the man’s bloody knife in her hand. Seeing him hiding under the porch in mortal fear, the police believed the drunk was the victim and placed my mom in the back of the police car while they asked the bleeding guy about the whole sordid affair.

Luckily for mom, the drunk told the truth and demanded she return his knife. Since he admitted to the officers that he had pulled his knife on my poor defenseless mother, they let her go. Given that he looked like he had picked up a feral cat and mom was not interested in pressing charges, they let the drunk go too. Clearly mom was tough as nails, but she could have been in serious legal trouble if that guy had the wits to act like a real victim. Remember one should only use that amount of force legally necessary to defend oneself. Don’t over-do it, or the police could get the wrong idea and confuse the perpetrator with the victim.

SOMETIMES THE JURY REALLY HONORS THE DEFENDANT’S RIGHT TO REMAIN SILENT AND THE PROSECUTION’S BURDEN OF PROOF BEYOND A REASONABLE DOUBT

I just concluded a month-long homicide jury trial and the jury acquitted the defendant of murder, two counts of attempted murder, and shooting into an inhabited dwelling. (For more information click on the attached link: http://www.dailyrepublic.com/?p=124187) This blog is about an instance where the jury actually followed the laws of the presumption of innocence, the prosecution’s burden to prove its case beyond a reasonable doubt, and most importantly, the defendant’s right to remain silent and to not testify on his own behalf.

What most people don’t actually realize is that the defendant’s defense case begins the minute the defense attorney gets up and cross-examines the witness. In fact, cross-examination has been said to be the “greatest legal engine ever invented for the discovery of truth.” A skilled defense attorney can actually destroy the prosecution’s case merely by careful cross-examination. In fact, some legal scholars contend that if you strongly believe that the prosecution has failed to prove its case, you lose credibility with the jury by putting on a weak defense, or for that matter any defense at all.

In the above-noted murder case, the jury had heard over a month of testimony and I selectively cross-examined the witnesses that pertained to my client’s defense -- including the uncharged accomplice who lied to the jury when she falsely identified my client as the second gunman. This witness was the only witness who placed my client at the scene of the crime. She received a free pass from the cops even though she drove the two gunmen to the crime scene with the knowledge they had guns and were gonna shoot the place up when she dropped them off. In addition to not being charged with any crime, they let her designate herself a victim. After that, they gave her $16,000.00 in cash and valuable prizes for her “cooperation.”

During cross-examination, I played several dozen excerpts of her audio recorded statement to the police which flatly contradicted her trial testimony. In addition, I played excerpts of her best friend’s statement to the police that the driver/snitch told him minutes before the shooting that the person the driver/snitch really dropped off with guns blazing was someone other than my client.

Because I believed that the testimony of the uncharged accomplice, and by extension, the prosecution’s case was discredited, my client elected to exercise his right to remain silent, and we put on no defense testimony. The jury acquitted.

Sometimes less is more.

Big Brother is Watching, So Text Me if You Can

Back in the day, and I mean way back, when I was I pot smoking, bud swillin’ moron who couldn’t be trusted around a coffee pot, there were no cell phones, internet, social networking cites, or any other media in which I could mindlessly cast my stupid ideas into cyberspace like I can today. Thank goodness. Today’s topic is very simple: do not text, blog, e-mail, chirp, twitter, or do anything, and I mean anything you wouldn’t want your mother or the police department to read or listen to and you will probably save yourself from a lifetime of regret and grief. It’s not just the cops. Spouses, girlfriends, boyfriends, parents, and even prospective employers all know how to Google your name and telephone number and you would be surprised what they come up with. I once Googled a prosecution witness’s phone number and it took me to a face book photo of the guy holding an assault weapon tryin’ to look like Dillinger. Boy was he surprised when I showed him that photo while he was on the witness stand.

When the cops suspect you, the first thing they do is Google you and search on face book my space, twitter, and they start looking at your stupid photographs of you doin’ dope, flashing gang signs, or bragging about your relationship with your underage girlfriend. . . the list goes on and on.

The cops have these computers they can hook up your cell phone to and they can download photos of you standing in your marijuana garden grinning like a jack ass; they can also down load your text messages, your phone contacts, and of course a complete record of all of the phone calls you have sent and received for as long as the memory in your phone will permit. The cops can even get cell phone tower information so they can figure out where you were when you made the call from so they can more easily place you at the scene of your dumb crime. The technology that cell phone providers have is so sophisticated that you can get placed near a cell site location if your phone rings but you don’t even answer it.

You would be surprised how many of my clients get nailed for sending text messages that contain their plans to commit crimes or they are boasting about crimes they have just committed to their knuckle head friends. Every major crime I work on contains cell phone information.

Cell phone records can also provide very powerful alibi evidence because, if by some miracle you are truly not at the scene of the crime like the police claim, you can get your cell phone tower data and it will show you were actually somewhere else-- probably talking on the phone while driving. Be sure to request cell site location information immediately because most providers only keep this information for a couple of weeks. By the way, the American Medical Association has done a study in which they have concluded that driving with a cell phone in your face is just as dangerous as driving drunk, so don’t do it.