Los Angeles Criminal Defense Lawyer Blog

In a new ruling in an Arizona case, the U.S. Supreme Court has called a halt to what some justices called 28 years of unconstitutional police search and seizure practices in the U.S. In a 5-4 ruling, the court ruled that once a suspect has been handcuffed or placed in a police cruiser, police cannot search the passenger compartments of the suspect's vehicle without a warrant. The court ruled that the only instances in which a vehicle can be searched without a warrant are:

• If the officer has reason to believe that the suspect might destroy evidence or reach for a weapon.


• If the officer has reason to suspect that the vehicle contains evidence of the offense that precipitated the arrest.


• If there is probable cause for a search, such as the smell of marijuana or alcohol or visible contraband.

Law enforcement officers have termed the Supreme Court's decision one of the biggest legal turnarounds in years. Police officers in Los Angeles and across the country will no longer be able to stop a motorist for a misdemeanor driving offense such as license suspension, arrest the motorist briefly and then search his vehicle, and then release him with a court summons. The Supreme Court ruling does not prevent police officers from searching a vehicle for weapons if police believe the suspect to be dangerous, nor does the new ruling apply to vehicles impounded after a driver's arrest.

The American Civil Liberties Union said the Supreme Court's 1981 landmark vehicle search ruling had for years been abused by law enforcement officers well beyond the limits placed by the Fourth Amendment. The majority of Supreme Court justices agreed, saying that the new ruling was needed to rein in unjust searches and seizures and remind law enforcement officers of privacy rights that limit searches. There is some concern within the law enforcement community that the new ruling will impede drug arrests made during traffic stops.

If you are stopped by Los Angeles Police Department or California law enforcement officers and feel that your vehicle has been unjustly searched or your property unjustly seized, contact the expert criminal defense attorneys at Rodriguez, Lewis & Kahn to arrange a free consultation to review the facts of your case. The new Supreme Court ruling reinstates the Constitutional rights of individual citizens to be free of unjust police search and seizure. You can count on the experienced criminal defense lawyers at Rodriguez, Lewis & Kahn to protect your rights.

Victims' rights are a hot political issue in California this election. Proponents of California Proposition 9, also called Marsy's Law and the Crime Victims' Bill of Rights, say it will give crime victims the same rights as accused and convicted criminals (see our Sept. 24 post). But crime victims in California already have most of these rights. Most of measures listed in the Prop. 9 Crime Victims' Bill of Rights were adopted into California law 26 years ago when voters approved a similar measure.

What Prop. 9 does is move these measures from statute to constitutional law. It's an important difference and one that concerns many in the legal community. Statutes that don't work correctly or are found to have unexpected and unintended consequences can be fairly easily changed by the passing of new laws. Changes to the constitution, however, can only be effected by a three-quarters vote of the state legislature or another ballot initiative, making it extremely difficult to correct errors or update the law.

Equally important is Prop. 9's expansion of victims' rights to the families of crime victims. Of particular concern is the impact this could have on sentencing and parole hearings. Prop. 9 would not only give victims' families a voice in parole decisions but could decrease the frequency of hearings, overriding the rights of criminals. Critics fear that rather than "leveling the playing field," Prop. 9 could result in vigilante law. By allowing emotional victims and families, rather than impartial jurists to define sentences, Prop. 9 could result in a gross miscarrying of justice, in effect denying both the accused and convicted criminals due process.

A Los Angeles Times editorial explained it this way: "The American legal system intentionally and properly distances families from prosecutions; the goal is evenhanded justice. The level of punishment a criminal receives should not depend on how persistent a particular family is in pleading for punishment or blocking parole. Civilized justice rejects vendetta and instead places retribution in the hands of the entire society. It may seem depersonalizing, but that's a goal, not a defect, of our system."

Crime victims advocates, law enforcement leaders and numerous politicians have united in support of California Proposition 9, also called Marsy's Law. If approved by voters on the November ballot, the "Crime Victims' Bill of Rights Act of 2008" will provide crime victims with the same constitutional rights as accused and convicted criminals.

"California's constitution guarantees rights for the most heinous of offenders who commit deplorable acts against citizens of this State," said Harriet Salarno, President of Crime Victims United of California. "Prop. 9 levels the playing field by guaranteeing rights for crime victims, ending further victimization of innocent people by a system that frequently neglects, ignores and repeatedly punishes them. Further more, the provisions specifically related to parole will only affect 10% of the prison population -- lifers, the most heinous offender sin our prisons."

Proponents of the measure say California law makes victims' rights secondary to the rights of those accused and convicted of committing crimes. They argue that victim rights are statutory while the rights afforded criminals are constitutional.

"Too often in our criminal justice system, criminals accused and convicted of horrible crimes are provided more rights and respect than the victims of the crimes, said LaWanda Hawkins, who founded Justice for Murdered Children after the murder of her son Reggie in 1995. "Crime victims deserve better."

Prop. 9 will provide victims with rights to justice and due process through creation of a constitutional Crime Victims' Bill of Rights. The measure would require judges to consider the safety of the crime victim and his family when making bail decisions and notify victims when their offender is released. Victims would have to be given advance notification of parole hearings and would have the right to be heard. Victims would have to be notified and allowed to participate in certain criminal proceedings, including bail, plea bargaining, sentencing, appeals and parole. Victims would receive the constitutional right to prevent release of personal confidential information or records to criminal defendants.

"Marsy's Law will ensure no other crime victim will have to endure the pain that I have experienced when I came face to face with my daughter's killer at the grocery store when I thought he was behind bars because it requires victims to be informed at all times during the criminal justice process," said Marcella Leach, co-founder of Justice for Homicide Victims and mother of murder victim Marsy Nicholas for whom Prop. 9 is named.

On Friday: Will Marsy's Law Destroy Criminal Due Process?

In California, adolescents under the age of 18 are generally processed under the juvenile justice system. Juvenile crimes differ from adult crimes in the type of offenders and the manner in which they are processed. Juvenile courts handle individuals between the ages of 10 and 17 who have violated criminal statutes or committed what are called status offenses like curfew violations, truancy, running away or incorrigibility. Status offenses apply only to juveniles and would not be considered a legal issue if committed by an individual over the age of 18.

In a 2006 report issued by the California Department of Justice's Criminal Justice Statistics Center, more than half (56.3%) of the juveniles arrested in California were arrested for misdemeanor offenses, just over a quarter (28%) were charged with a felony offense, and the rest (15.7%) were arrested for status offenses. More than four times as many blacks and Asians than whites were processed under the juvenile justice system.

Eight out of 10 of those arrested were referred to county probation departments where approximately 50% were formally processed through juvenile court. Just over one-third (35.2%) of the cases referred to county probation departments were closed during intake with no further action taken. About a quarter (24.4%) of the juveniles referred were actually detained while awaiting disposition by juvenile court. In court, 20% of the juvenile court cases were dismissed. A majority of the individuals processed through juvenile court (61.9%) were made wards of the court and allowed to return home under supervision by the probation department.

Not all juveniles are tried in juvenile court. Juveniles can be transferred to the adult criminal justice system either directly by the District Attorney because of the seriousness of their crime or prior criminal history or by failing a fitness hearing in juvenile court. Of the juvenile dispositions filed in adult court, 77.6% resulted in convictions.

The focus in juvenile court is to rehabilitate the child, not to punish. In California juvenile court proceedings are very different from their adult counterparts. The prosecutor has the power to charge a crime as a misdemeanor or felony. Minors are not entitled to jury trials or bail. Dismissal of charges is permissible at any stage of the proceedings. In fact, intake and detention officers have the authority to completely close a child's case and mandate informal probation before the case goes to court.

If your minor child is charged with a juvenile crime, an experienced and knowledgeable juvenile defense attorney may be able to get the case dismissed in its early stages. If contacted early enough, a criminal defense attorney may be able to minimize the charges and ensure that your child does not end up in juvenile boot camp, at a detention ranch or in the California Youth Authority, the state prison for juveniles.

The best witness for a prosecutor is an unbiased eye witness. For certain types of crime this is rare. A witness of value may be involved in the commission of the very crime a prosecutor wants to convict someone of.

How can a prosecutor make a case with this type of witness when the witness may have to incriminate himself in order to be of any value? The right to not incriminate one's self is enshrined in our constitution, so the prosecutor must offer incentive to get witnesses to testify. For a witness involved in a crime the prospect of immunity is a powerful incentive. Immunity would protect the witness from being charged with a crime in exchange for them testifying.

There are two types of immunity, "use" and "transactional."

Use immunity, the more narrow of the two, mean that a witnesses statements about a crime cannot be used to charge them with a crime. This is no guarantee that the witness cannot be prosecuted for that crime, it just means that the prosecutor would have to find evidence somewhere else. In practice this is rare.

Transactional immunity is broader than use immunity and gives a witness a pass on any crimes he is forced to testify about. For instance, Salvatore "Sammy the Bull" Gravano was given immunity for committing 19 murders in exchange for his testimony against John Gotti.

Immunity does not have to be cooperative, it can be put in place by court order and then the witness would be compelled to testify. A prosecutor may wish to have this setup in place for reasons of perception even if the witness is cooperative. The idea being that the witness had no choice in the matter which could make a better impression on the jury than someone who was just cutting a deal.

This is a special post from a friend and retired lawyer with insights, opinions, and tips for preparing a case. If you are unsatifisfied with your lawyer or you are in trouble with the law, contact Stephen G. Rodriguez and Associates for help.

When a client comes to us with a problem, we tend to look at the facts are client brings to us in terms of the legal issues that they present. This is how we were trained, and mastering that skill got us through the bar exam. But, my friends, that's not the way we try a case. Trying a case means that we have to get the facts before a jury or court in order to argue at some point in the case about how the law is to be applied to those facts. Identifying and organizing the facts of a case is perhaps the most important skill set a litigator must have if he is to be an effective trial advocate.

I am retired from law practice now, but during my career as a litigator, I focused my attention on developing ways using my personal computer to identify relevant facts, and what I needed to do to get those facts into evidence, and to counter any objection is that I might encounter. The organizing principle is creating a database that lists all of the facts I will need to bring to the jury or the court as the case may be. Large law firms do this as a matter of routine, and use of computerized databases is labor intensive and expensive, and solo practitioners like me are always at a disadvantage. The techniques that I describe below, allowed me to use computers for more than 20 years, as my principal organizing tool for trial preparation. The technique I'm about to demonstrate is useful in both civil and criminal trials.

The first thing we do is to create a matrix that identifies legally significant facts and the way or ways in which we can get those facts into evidence. As we know facts come from various sources, documents, witness statements, from our clients, from public records, and elsewhere. Making lists of the relevant facts as often is the easy part of the job. It's linking those facts with specific documents, witness statements, and other sources of evidence that that makes the job more difficult or where errors where gaps in the record can put us at seriousness advantage.

In the past, I use what are called flat file databases to create my matrix. These are relatively simple, are searchable, and can display selected search results as views to establish particular facts. Next, I would begin to organize the facts that I knew at the outset, assigning each significant fact a number. Each number would be the beginning of a series of two perhaps three digits so that the series would look as follows: 100, 200, 300, 400, 500, and so on. If a cardinal fact lies within the 100 series range subsidiary facts related to that cardinal fact might be numbered 110, 120, 130, 140, and so forth. The idea is that we fill in facts as we discover them during our investigation. What we want is the ability to cross-index each significant fact with its supporting document, witness statement, deposition testimony, or public record that will establish that fact in the court or tribunal in which we are trying the case.

In any particular case, there may be several dozen records up to several thousand or more. Notice that I place the Fact and its corresponding number at the top of the matrix. Legal issues are at this point entirely subordinate to establishing facts; in many cases, legal issues are not even assigned to a matrix until the case is close to trial, and then primarily to sift the facts for those that are legally relevant to the case; however, and this is a big exception, evidentiary requirements such as proving chain of custody, document authentication, foundation testimony, or expert witness testimony may be required, and the record matrix is designed to identify those requirements, and how they will be met. Beyond that, we proceed in this manner so that our focus is on establishing the facts into evidence, and saving legal analysis for argument later.

The hypothetical record showing in Figure 1 is similar to a case that I handled it a federal criminal appeal. My client had been convicted of conspiracy to commit money laundering and the principal evidence against him consisted of business records recording wire transfers of money from Providence, Rhode Island, to a location in Texas. Western Union's records of these transactions consisted of the name of the sender and the name of the intended receiver, the receiver's name and address, and other pertinent data that would enable Western Union's employees in Texas to verify that the person named in the record was the intended recipient. No such information identifying the sender was including those records, nor was it required at that time. Some of Western Union's record slips at handwritten signatures purporting to be that of my client, but there was no expert testimony offered at trial that the signatures on the send slips were consistent with my client's handwriting. In short, the jury was allowed to speculate as to whether the signatures on the send slips were actually those of my client, and that was a principal basis for his appeal.

Figure 1
Fact	Signature on Wire Transfer record (300 series)
Document Number	1005
Document Type	Business record
Document Name	Wire Transfer Send Slip
Date	20070728 - July 28, 2007
Author	Western Union
Recipient	Robinson
Distribution List	NA
Names in Document	Smith; Jones
Summary	Records wire transfer of $1000 from Robinson to Smith
Notes	· Jones is wire transfer clerk · Smith's personal information included and required by company policy. · Robinson 's personal information not included, and not required by company policy. · Handwritten signature: Ben Robinson · Document is a business record proving a signature, but not directly linking Robinson to this document
Issue Code	201, 301
--------------------------
Evidentiary Purpose	Absence of personal information showing that Robinson ’s signature was authentic
Foundation testimony	Custodian of Records must testify that (1) company records are accurately maintained; and (2) the wire transfer clerk has a business duty to record personal identification information to group recipients like Smith
Authentication	Custodian of Records may testify as to the authenticity of a business record and Chain of Custody, but not to the truthfulness or accuracy of its contents
Rebuttal Testimony	Wire transfer clerk had no business duty to record personal information regarding senders like Robinson
Privilege	No
Basis of Admission	Business Records
Objection	Hearsay; fails to conform to business records requirements No expert testimony or other evidence available to link handwritten signature to author, Robinson
Federal Evidence Rule	803 (6), (7)

This is one of many records that a lawyer will make in preparing his case for trial. Here we have a fact, the existence of a business record that may be used for one evidentiary purpose. But this fact is rebutted by another fact, albeit a negative fact, which is the absence of the necessary quality required to make that fact legally significant.

If there is a principle that I would apply in identifying factual groupings, it would be to keep the process as simple as possible. Even complex factual situations should be simplified to the greatest extent possible. Each fact must tell its own story and point in the direction of the total narrative that the lawyer wants to create in the jury's mind.

Experience suggests the following data categories to litigation databases: (i) document number; (ii) document type; (iii) document name or title; (iv) date; (v) author; (vi) recipient; (vii) distribution list; (viii) names in document; (ix) summary; (x) notes; and (xi) issue codes. These classifications are self-explanatory, but one or more are often overlooked because they record essentially background information that is overshadowed by issues-oriented information contained within the data. Name, date, author, recipient, distribution and names in document allow cross reference searches to be conducted on unique identifiers for which subsets of other data can be extracted. The summary block should contain a short, concise statements about document contents while notes provide a place for annotations (I distinguish between describing document contents and the evidentiary use of the document or statement to prove a factor propositioned later at trial. See below.) Issue coding is reserved for last because that will be added when the data is complete and trial reparation is under way. Other categories may be added as needed.

As part of my databases I also include additional fields specifically keyed to trial preparation: (i) evidentiary purpose; (ii) foundation testimony; (iii) authentication/chain of custody; (iv) privilege; (v) basis of admission into evidence; (vi) potential objections; (vii) Federal Rule of Evidence; (viii) other authorities (statutes, case law, etc.). The idea behind the evidentiary data fields is to create evidentiary checklists and to anticipate and counter potential objections to introducing that evidence at trial.

As the case develops, and more facts are developed, these new facts need to be accounted for and linked to other facts that we already know about. The database will allow new facts to be grouped with known facts so that nothing will be missed either during trial reparation or trial. When the database is queried to produce views of specific facts, paper and digital copies of those views may be saved. And earlier versions discarded.

As the database is created, individual records can be hyperlinked to copies of witness statements, and extracts taken from deposition testimony, copies of documents, lines of inquiry and anticipated testimony, and other pretrial memoranda that litigators may prepare in anticipation of trial. It is even possible to access this data at trial, from a notebook computer, and I have done so in the past.