Author Archives: Forest Wilkerson

About Forest Wilkerson

Forest graduated from the University of San Diego in May of 2003, and has had a varied and interesting career. After law school, Forest did an extended internship at the United Nations International Criminal Tribunal for the former Yugoslavia in The Hague, the Netherlands. She was assigned to the lead prosecutor on the team prosecuting Serbian Dictator Slobodan Milosovic for war crimes.

Joshua Mulligan has been certified as a Criminal Law Specialist

Congratulations to Joshua Mulligan for becoming a Certified Legal Specialist in Criminal Law with the State Bar of California Board of Legal Specialization!!! It’s a difficult process, and requires a broad knowledge of many levels of criminal law, including completing trials, appeals, and habeas petitions, as well as passing a test. I couldn’t be prouder of my partner!!!

“Weed” at Coachella Fest

Forest was quoted in an article about “weed” at Coachella Fest:

. . . Attorney Forest Wilkerson gives some insight for having drugs inside the gates. She denounces the notion that asking “Are you a cop?” will force an admission from narcs. Indeed, undercover police can appear in all forms; even a sexy rave kitty could be doing the government’s work. To be safe, only talk about and do drugs with people that you know personally.

If charged, it’s relevant to be aware of different severities. “Simple possession” implies that the drug quantity was for personal use. This charge usually allows for a drug program and eventual dismissal.

“Possession for sales” is a different animal; selling a controlled substance is a non-reducible charge that carries jail time. Law enforcement looks for these things when deciding which charge to make:

– quantity of the drug

– separate versus individual packaging

– large quantities of cash

– multiple cell phones

– written or digital records of sales

If you do get charged, say nothing. Criminal law is the art of manipulating the notion of justice. With such high stakes, always have a lawyer!

Joshua Mulligan Named “Top One Percent” by National Association of Distinguished Counsel

This is from the press release send out by the National Association of Distinguished Counsel:

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Joshua Mulligan, of Wilkerson & Mulligan, has been selected to the 2015 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel.  NADC is an organization dedicated to promoting the highest standards of legal excellence.  Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.

Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law.  Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC.  This elite class of advocates consists of the finest leaders of the legal profession from across the nation.

Forest Wilkerson Gets Child Abuse case Dismissed

After several months of negotiation and litigation over complicated discovery issues, Forest Wilkerson achieved a rare dismissal from the court after preliminary hearing in Blythe.  The case involved accusations the Forest’s client gave his daughter a concussion and a broken nose.  Medical records, photographs, and further investigations showed that the alleged victim had fabricated the incident.

Forest has her partner, Joshua Mulligan, to thank for completing a complicated discovery motion – an 827 petition to get copies of confidential records from the Child Protective Services investigation from the case.  The Blythe prosecutor refused to provide requested discovery showing this defendant was innocent of the charges, but diligent discovery work and investigations won the day.

Prop 47 Resentencing Guidelines

On November 4, 2014 California voters passed an historic ballot initiative that actually lowers criminal penalties in as much as 20% of cases currently charged as felonies.  Furthermore, it is estimated that proposition 47 will allow for the early release of as many as 10,000 inmates from the California prison system. Several thousand more inmates serving long felony sentences in county jail will also be eligible for release.

There are 4 criteria an inmate must meet to be eligible for re-sentencing:

1)      Only theft and drug crimes are eligible for re-sentencing under the new law

The new law applies to dozens of specific law.  But all the changes apply to theft crimes of less than $950 and simple possession of drugs.

As to the theft charges, it is important to remember that this does not apply to residential burglary (going into somebodies home or garage to steal) or to robbery (using violence or threat of violence to take something.

As to drug crimes, simple possession means possession for personal use.  Possession for sales will still remain a felony.

2)      The person requesting resentencing must not have any conviction for a sex crime listed in Penal Code section 290(c)

Most inmates who have a prior conviction for a sex crime will not be eligible for resentencing.

3)      The person requesting resentencing must not have a violent felony prior conviction listed in Penal Code section 667(e)(2)(c)(iv)

It is important to note that not all persons having “strike” convictions will be disqualified.  This list includes “sexually violent” crimes and top level violent crimes such as murder, attempted murder, or assault with a machine gun on a police officer.

4)      The person seeking resentencing must not pose an “unreasonable risk to public safety”

This is the most subjective aspect of resentencing, and the area where having a thorough and creative attorney may well mean the difference between freedom and prison.  The judge may consider the person’s criminal history, the nature of the current offense, and “any other evidence the court, within its discretion, determines to be relevant”.  This leaves the field open for the defense to give information about a person’s background, family, or anything else that may make the person seem more sympathetic or at least not dangerous.

Filming Police

New technology has dramatically increased the availability of digital video for law enforcement.  The news is filled with information about the government’s increasing surveillance of the population, through the increased use of cameras in public places, audio equipment to record conversations, and warrantless searches of cell phones.  Police agencies nationwide are even working to acquire “drones” to amplify their surveillance abilities.

As hungry as the government is to use these new technologies to watch and listen to citizens, law enforcement has fought public demands for greater transparency via audio and video technology.  In 2007, the California legislature passed a bill aimed at preventing false confessions (identified as present in 30% of DNA exonerations by the Innocence Project).  It would have required police to record all statements from suspects in cases of violent crimes. Considering the ubiquity of recording devices, one would think this was a simple request. However, law enforcement opposed the bill and Governor Schwarzenegger vetoed the legislation.

Due to pressure from law enforcement, some states prohibit filming police while performing their duties.  It is difficult to see the rationale for such laws, other than protecting officers who engage in wrongdoing.  In California, it is legal to film police, with some caveats.  First, stay out of their way.  If a person taking video is very close to the police, or blocking police in some way, that individual will be charged with interfering with a police officer.  If you are filming an officer and he complains that your actions are interfering with him, just back up and put some space between yourself and the situation (but keep recording because there is probably a reason don’t want you to!).  Second, the recording should be conducted openly.  There are some rather ambiguous “wiretapping” laws that make secret recordings illegal if the party being recorded is unaware. As long as it is obvious and clear to the officer that you are recording, the recording should be considered legal.

The filming of officers is having a positive effect.  Filming by the public and increased use of cameras in patrol vehicles and police stations has exposed thousands of instances of police wrongdoing.  A search for “police brutality” on youtube.com yielded “about 305,000 results”.  There is no doubt that starring in such a video is a career ending move for bad cops nationwide.

From the police perspective, they, too should want video evidence. What better evidence that a confession is not coerced or involuntary than a recording of that statement? And consider if an officer is accused of excessive force or abuse of authority, a video of an incident could save an officer’s career under these circumstances.  A video or audio recording of an entire incident (not just selective recording) usually leaves no question as to what occurred during a confrontation. While we should be wary of over-surveillance of innocent citizens, police and the public alike should support a policy favoring transparency.

Jury Nullification

“It is not only [a juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

– John Adams, Founding Father and second President of the United States

Jury nullification refers to the power a jury has to find a defendant “not guilty” even where the the evidence presented would support a verdict of “guilty” under the law.  Supporters of jury nullification view the role of a juror broadly, as judge of both the law and the facts, and of the morality of prosecuting that particular crime in that community.  Accordingly, if a juror finds the law unjust, or unjust as applied to a particular case, the juror may acquit the defendant.

Jury nullification, despite its mixed reputation in modern times, has a long and noble history.  In the Colonial Era, juries frequently acquitted those accused of speaking against the king or who engaged in unlawful assembly.  In the days leading up to the Civil War, northern juries would often acquit defendants accused of helping runaway slaves, even where evidence of guilt was clear.  Juries frequently acquitted defendants facing alcohol-related charges in the prohibition era.  In more recent times, juries have nullified on cases involving trumped up charges on political protesters and drug charges, such as possession of medicinal marijuana.

At the time of the founding of the country, the principle of jury nullification was firmly rooted in the jury trial process. Toward the end of the 19th Century the courts started to reign in the rights of attorneys to argue for jury nullification.  It also became illegal for courts to instruct juries about their right to make an independent moral judgment as to the inherent justice of a conviction.  Prosecutors sought to reduce the role of the jury to simply finding facts and disregarding the morality of their decision.  In our courts now, prosecutors expressly tell jurors that there is no moral aspect to their role and encourage jurors to find defendants guilty even where the juror is morally uncomfortable with a conviction.  Jurors are also told to not consider what kind of sentence or punishment the defendant might receive, even though punishment is the core mission of our justice system.

Over the last several years, there has been growing interest in restoring the right of a jury to exercise its independent moral judgment of both the law and the facts.   Critics see the role of the jury as a crucial check on government power. The removal of this power has resulted in consolidated power in government prosecutors and has extinguished moral judgment from decision making. Constitutional scholars who have advocated an “originalist” perspective on the Constitution and Bill of Rights (that is, trying to understand and enforce those documents from the viewpoint of the men who wrote them) see the attempts by the courts and prosecution to restrict the role of the jury as an illegal and unauthorized power grab. When jurors lose the power to use independent moral judgment, it can lead to immoral and unjust results in some cases.

As the law stands now in California, the jury always retains the power to acquit, and the constitution still protects an individual against “double jeopardy” so nobody can be retried after a jury has acquitted.  However, no judge may instruct a jury as to its inherent power to acquit based on an independent moral judgment of the case.  And defense attorneys are not permitted to argue for nullification.