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.

Can the alleged victim in a Domestic Violence case get the case dropped?

Note: This article is about California law.

The short answer is no, only the prosecution can charge people or dismiss cases.  Once the police get involved, the situation is out of your control.

That said, it frequently happens that in the heat of the moment people call police and give statements that they later regret, usually because they either lied or greatly exaggerated the incident. When the “victim” later decides to tell the truth, they are often threatened with prosecution for filing a false police report or flatly advised that they are a “liar”.  Interestingly, they are only a “liar” if they say that nothing happened, but are never a liar when they say something that the prosecution believes will lead to a conviction. Therefore, I write this information to those who are in the position where they fabricated or exaggerated to police.

As the “victim” in the case (and usually the only eye witness to the events), there is much you can do to later derail the prosecution of your loved one, if you are determined, because you initially misled the police and the prosecutor doesn’t believe the truth.  Domestic violence prosecutors, especially here in Riverside County and the Coachella Valley, are often paternalistic crusaders who think they know what is best for your family better than you do.  They will seek out long prison terms with cold disregard for the consequences to your family.

1) Do I have to testify?

There is no simple answer here. But the process goes something like this:

The first stage the prosecution takes to bring you to court to testify is usually mail service – meaning that they will mail you a document asking to call them to confirm that you got the document and are coming to court.  Don’t call the prosecution.  This will let them know that they have a valid address and responding will technically compel you to go to court.

The next thing the prosecution will do is send an investigator or cop to try and find you and personally serve you the paperwork saying you need to go to court.  Personal service can be avoided – don’t answer your door, if you live in an apartment, consider moving.  If a strange person asks your name, refuse to answer.

If you have been properly served, you must go to court.  The judge will order you to answer questions that the prosecutor is asking.  However, if you refuse to testify, California CCP 1219 protects you – you cannot be jailed for refusing to testify.  The judge may order you to consult with domestic violence counsellor, but it is unclear what the judge can do if you refuse.  There may also be some fines.

Note that if you take this route and refuse to testify, the judge and prosecutor will probably be very angry with you.  This is because they want to put your partner in jail and tear apart your family – and they demand your cooperation.  The anger is all bluster, with little consequence behind it.  Stand your ground.

2) I haven’t been subpoenaed, but I want to go in and testify to just set the record straight.  Will the judge drop the case if I do that?

No, and this is the worst idea possible. You are the only witness and the judge and prosecutor won’t believe you if you say nothing happened. They will use your first statement to police to contradict your second, and only believe the one that aids in conviction.

If you never testify, the prosecution will likely have NO evidence in your partner’s case and will have to drop the charges.  However, if you do testify, the prosecution will be able to have police testify to your other statements you made in the past, allowing the prosecution to proceed.

This is due to a quirk of our constitutional protections for defendants.  The defendant’s attorney has a right to confront any witness in open court.  If the defense is not afforded the right to cross-examine a witness, none of the statements of that witness can be used as evidence (at least those statements made to police when formally investigating the case).

In short, once you open your mouth as a witness, the prosecution can put on police officers to testify about your prior statements and can play audio and video recordings of those statements.

3) How should I deal with the prosecutor? 

You can start nice and go nasty later, but it is harder to start nasty and go nice.  You should nicely explain your position to the prosecutor on the case – it may result in a good deal for your partner.  If the prosecution treats you like a child or ignores you, it probably won’t hurt to get mean.  If the prosecutor hates you they may want to dump the case to avoid contact with you. A colleague had a case where the prosecutor hated the “victim” so much that the prosecutor said “I want to give the defendant a stick to beat her with” – the case later settled very favorably.

One thing you should not do in dealing with the prosecutor is discuss the facts of your case or start weaving out new story lines.  This will not make anything better.  Keep focused on the fact that your partner is being treated unjustly and explain to the prosecutor that the case is hurting you and your family.

4) Effective Recantation

Usually it just looks bad when domestic violence witnesses testify and give a totally different story.  The defense attorney often will argue that the person is just a liar and you can’t believe anything he/she says (this can be very effective).  Technically the prosecution can charge you with filing a false police report if you lied to the cops, or perjury if you lie while testifying, but in practice I have never seen this happen (but I’m sure it must from time to time).

Often a better tactic is to produce evidence of mental illness or witnesses to testify that you are untruthful.  For example, I had a case where the alleged victim’s mother and father were both testifying for the defense that she was a liar and often injures herself when she drinks (the case was dismissed).  Give the defense a list of people that could testify that you are a liar.

Your appearance at the court hearings may also influence the proceeding.  Dress like a crazy, trampy liar and you may help influence the case to your partner’s benefit.  For example, I once observed a recanting witness come to testify carrying a coffin backpack with chains as straps – she set the little coffin on the witness stand so the jury could see it throughout her testimony.  Consider tiny shorts, a tank top, t-shirts advocating drug use, dirty clothing, messy hair, or even shaving your head! For male “victims”, get a tattoo across the back of your shaved head that says, “I rule bitches!” or something similarly demeaning to women. Be creative! But also be yourself – I mean, there must be a little crazy in you if you got this ball rolling….

5) Consult with an Attorney

Unlike a person charged with a crime, an alleged victim has no right to a court appointed attorney.  I am happy to meet with victims at no charge for a initial consultation.  I can provide some good tips for you specific to your case, but if you really want to be effective and show the prosecutor how seriously opposed you are to the prosecution, then hiring an attorney is your best option.

Jurisdictional Note: Please note the the article below applies to California law only.  If you are in a different state or country, they may do things very differently.  Furthermore, my practice is based in Riverside County and the Coachella Valley.  I mostly take cases at the Larson Justice Center in Indio.  Some areas of the state may handle domestic violence cases differently.  

You have the right to an attorney….(a broken promise)

Today, March 18, commemorates 50 years since the United States Supreme Court in Gideon v. Wainwright determined, for the first time, that poor defendants have a right to an attorney in criminal cases. And while most people waive flags and scream about any violation of Second Amendment guarantees, few recognize and fight for Americans’ rights regarding the Sixth Amendment Right to Counsel.

As a background, Clarence Earl Gideon was an uneducated, unsophisticated, poor and homeless man who had grown up without his father. He began getting in trouble as a young boy and eventually was charged with burglary and theft from a pool hall where they alleged he stole a few bottles of beer. As a stroke of luck, Mr. Gideon asked for an attorney for his trial and was denied by the judge who reminded him that only death penalty defendants were entitled to counsel. Mr. Gideon was outmanned and outgunned and lost his trial easily against an experienced prosecutor. The judge sentenced him to the maximum penalty : 5 years in prison.

Mr. Gideon spent his time in prison researching whether he actually had the right to an attorney for his case, and he determined that he did indeed. He hand-wrote, in pencil, a letter to the Supreme Court (after Florida Courts had refused to hear his case) and the Supreme Court decided to review his case. The Court appointed prominent attorney, and later Supreme Court Justice, Abe Fortas to argue Mr. Gideon’s side. In a landmark 9-0 ruling, the Court determined not only did Mr. Gideon have the right to an attorney, but that the States had to provide attorneys for poor defendants.

As a result of the decision, 2000 inmates in Florida alone were freed. Mr. Gideon was not. The State of Florida sought to re-try Mr. Gideon and, with the help of his new attorney, Mr. Gideon was found NOT guilty.

Mr. Gideon’s acquittal at re-trial speaks volumes about the necessity for an attorney. Yet, if you run a simple google search about Gideon’s amazing promise to protect our Constitutional rights, the search results will discuss the failure of this promise. Public defenders are saddled with more cases than any attorney could handle. As a recent attorney at the Riverside County public defender office in Indio, I know this issue firsthand. As a felony trial attorney, I had more cases than I could reasonably take to trial in 4 years, even while I had cases carrying the potential result of life in prison without parole. During my time at the office, felony preliminary hearing attorneys had caseloads ranging from 60-120 at a time. These attorneys spend a majority of their time in court waiting for their cases to be called and have little time to investigate, research the law, or meet with their clients. Misdemeanor attorneys have caseloads ranging from 120-200 cases at a time. That’s 120 people to meet with,120 investigation requests to write, 120 discovery requests to submit, witnesses to interview, etc., etc….and they are assigned new cases every day. With these sheer numbers, it’s easy to see why even the most dedicated, intelligent, and hard-working public defender might not be able to do as much as they would like on a case.

This is the story at public defender offices across the country. To be fair, California has come a long way in providing the resources for indigent defense, but as you can judge by the numbers above, it’s still not enough. And other state public defender offices are even more overwhelmed.

As you read this, you may be asking why you should care about this issue. First, consider that in Riverside County alone over a year (this is a few years back), the Prosecution had a guilty verdict rate on all charges of around 45% in the cases tried that year (this is from memory and taken from a local judge’s statistics). That means that 55% of people were judged to have been wrongfully held in jail, had their freedom denied, lost their jobs, and spent a lot of time fighting unjust charges. That wrongfully accused person could be you. Remember Mr. Gideon? He was only guilty of leaving a pool hall at the wrong time.

Second, attorneys keep the police in check. Do you know if you were legally stopped? You might question the validity of the police stopping and searching you, or of the police busting down your door and searching your house, but do you truly know if the stop was legal? Do you know how to find out? A good attorney will know almost at first glance if the stop or search was valid. A good attorney will further know how to suppress the evidence or statements that you gave due to the unlawful stop or search. In my practice, I have been told by police officers multiple times after questioning them that they will never do a practice again because I had evidence or statements thrown out of court. Good attorneys change the way the police treat you – for the better.

Finally, attorneys may be the only one on your side. Many clients have told me that I am the only person who believed in their innocence and fought for them. The prosecution is always well-funded and has the benefit of the local police, the sheriff’s department, their own investigators, the Department of Justice, and sometimes even the FBI and ICE to aid them. Add these overwhelming resources to the judge in your case, who most likely recently left the prosecutor’s office, and the jurors who stare at you and overwhelmingly believe that if you’re sitting in that defendant’s chair, “you must have done something.” Can you imagine the weight of all this on you, an innocent man or woman? Your attorney is the only thing that stands between you and this overwhelming show of governmental power. It can happen to you. Believe me.

I get teary whenever I read any individual story of a man exonerated after being wrongfully convicted (over 200 individuals from death row alone!). Let’s just hope that people begin to take the 6th Amendment as seriously as the 2nd and finally fulfill Gideon’s broken promise.

Doing drugs at the Coachella Music Festival

If you are determined to do drugs at Coachella, here are some tips to be smart about it.  Coachella is crawling with undercover cops, and a felony arrest is the worst way to end your vacation.  The law is very different for marijuana and other drugs, so I will address the issues relating to their use and sales separately:

1) Medical Marijuana

Marijuana is not legal in California.  If you are a California resident with a valid prescription  you may possess an amount of marijuana appropriate to your medical needs (don’t expect to get caught will a pound of bud in your backpack and avoid arrest because you have a card).  Prescriptions from other states are also probably not valid.

2) Strictly Recreational Marijuana

Possession of less than one ounce of marijuana is an infraction, not a criminal offense.  This means that if you are caught with less than an ounce, the police will just take your bud and issue you a ticket – similar to j-walking.  A fine of a few hundred dollars is the highest penalty, and the ticket can be contested in traffic court, but there is no right to a jury trial.  Possession of more than one ounce is a misdemeanor and can result in arrest, jail, and expensive fines.

Most troubling marijuana cases involve sales, possession for sales, or furnishing.  A guy who shares his marijuana with another person is furnishing drugs, and is technically guilty of a felony.  A person who gives his last joint to an undercover cop who repeatedly asks, even begs, for the joint will be arrested and charged with sales, especially if the person reluctantly accepts a $10 “donation” for the joint.

 3) Meth, Cocaine, Ecstasy, and LSD

Possession of any of these drugs will result in arrest and a felony charge, including possible jail time.  That said, there is a vast difference between simple possession (for personal use only) and possession for sale or actual sales.

When a person is charged with simple possession (personal use), they will typically be permitted to complete a drug program and have their case dismissed.  People with extensive criminal records, especially “strikes” are sometimes excluded.  Also, be warned that such charges may result in ineligibility for student financial aid and deportation for non-citizens.

Sales and possession for sales are completely different.  Sales charges are non-reducible felonies and will typically involve real jail time.  Police will look for a combination of factors when determining whether to charge for possession for sales or simple possession: 1) larger quantities of the drug; 2) separate or individual packaging; 3) large quantities of cash indicate sales; 4) multiple cell phones; and 5) written notes keeping track of drug sales.  If you don’t want to be charged with sales, avoid any of these indicators.

4) Urban Legends (“Are you a cop?” and Entrapment)

It seems to be a typical piece of street wisdom among drug dealers and prostitutes that cops cannot lie to you if you ask directly before selling to them, “are you a cop?”  This is complete nonsense.  If you ask the undercover cop if he is a cop, he will tell you “no”, then buy drugs from you and arrest you.  Police can and do lie to suspects.  It is part of typical police technique and training.

Entrapment is also another common complaint coming from people who inadvertently sold drugs at the Coachella Music Festival.  Suppose an undercover cop in tiny shorts and a bikini top flirts with you and asks ten times for a hit of X, so you go score some X for her from a friend of a friend you know is also at the concert.  You will be charged with sales.  You may possibly have an entrapment defense at trial, and it could work.  But that won’t prevent you arrest, charging, and being brought to trial.  Entrapment really amounts to a complicated legal defense at trial.  The police can and will entrap you.  Be prepared for a large investment of time and money getting your case in front of a jury.

5) How to Spot an Undercover Cop or Police Informant

Don’t even try, you can’t.  The informant may be a sexy girl in a bikini (this is documented and very true) or a convincing stoner.  Don’t give drugs to anybody you don’t know!

6) What do I do if I am Arrested?

Don’t make any statements to the police.  Tell them you need to speak with an attorney first.  Contact an experienced criminal defense attorney.

Check out this article if you are looking for tips on have a safe, legal, and fun time at Coachella!

What do I do if I am Pulled Over for DUI?

It depends.  If you have not been drinking or only had one or two drinks, just do everything the officer says and be on your way.  The more problematic situation arises when you know you have had a bit too much or are not sure.  If you do what is described below you may anger the officer, but stick to this if you want to beat a potential case – if the officer is getting frustrated it is only because you are lawfully hampering his efforts to collect evidence that will be used to prosecute and convict you.

1) Do not look at the officer any more than necessary.  DUI drivers are inevitably described as having “red and watery eyes”.  If it is daytime, keep sunglasses on.  Do not take them off it the officer asks you to remove them – just tell the officer “no”.

2) Only crack your window slightly when speaking with the officer.  They will attempt to smell your breath.  Do not give them the chance.

3) Refuse to perform field sobriety tests (FSTs).  If chemical test results later show sufficient BAC, the officer will ALWAYS write that you failed the tests.  You are under no obligation to do FSTs, simply refuse.  This may anger the officer, but only because he is trying to get evidence to prosecute and convict you, it is perfectly legal to refuse to do these tests.

4) Do not make any statements to the officer.  Only give your name.  In response to questioning, tell the officer you do not wish to make statements or you do not wish to speak with him.  Do not talk about how much you have had to drink, where you are going, or make any small talk.  The officer will write in his report that you had slurred speech.  Only talk the absolute minimum necessary so he cannot make that observation.

5) Refuse PAS test.  The officer will ask you to blow into a machine during the stop.  You have no obligation to blow into this device.  Simply refuse to do this test.  (Note, you MUST complete the later chemical test after arrest – the blow machine or blood test at the police station).

6) Make the right choice about chemical testing.  If you do not take a chemical test after arrest, you will lose your driver’s license.  However, you do get to choose between breath and blood tests.  If you choose blood, the test time may be delayed somewhat as the police must call a phlebotomist (person who draws blood) to the police station.  This may result in a lower blood alcohol level at the time of the draw.  However, there is a serious drawback – if there are any other substances other than alcohol, the blood test will reveal them (marijuana, Vicodin, etc.) – this will make the DUI much worse.  Breath testing only tests alcohol.

Follow the above rules and you will have an excellent chance at beating your DUI!

Overflowing Jails, Police Budget Cuts, and Declining Crime Rates

The Desert Sun recently did a long article that essentially provided various desert police departments a forum to whine about scaling back and budget cuts during recent years of recession and overall scaling back of government services.  Of course, there was almost no discussion of the value that police are providing for our tax dollars.  The fact that the crime rate continues to fall was briefly discussed and quickly dismissed.  The important message, as usual, is that unless public safety starts getting much more of our tax dollars, we will all be subject to an unbearable and horrific crime wave.  Is this fear-mongering?

Anyway, the crime rate is still falling (locally and nationwide), despite the horrible recession, decline prison populations, and declining police “protection”.  None of the smart people in charge of thinking about these things really knows why – check out discussions of this topic here and here.  This article even links inflation and crime rates!

And despite the misleading commentary in this “investigative” piece, even in this new (supposedly more dangerous) environment of reduced policing, law enforcement is not among the 10 most dangerous jobs. 

Why Exonerations are so Difficult

Check out this article in the New York Times.  Joseph A. Buffey has been in prison now for more than a decade for a brutal rape he did not commit.  The post-conviction proceedings have taken more than 18 months, and  although his defense team has succeeded in getting DNA testing that excluded Buffey as the rapist done in May 2011, Buffey still remains in prison.  Furthermore, when DNA was run through a government database, it matched another individual who has a history of assaulting women.

The Innocence Project is doing an incredible job with this case.

The National Registry of Exonerations

The National Registry of Exonerations is an amazing website providing detailed information on over 1,050 known exonerations since 1989.  This is an incredible number.

Imagine the work necessary to get even one exoneration – many hundreds of hours pouring over old transcripts, retesting evidence (sometimes decades old), and fighting these convictions in a systems inherently biased towards finality.  And nearly all the work on these cases was done pro bono publico (for free)!

Great work on this sad monument to injustice.  No doubt these 1,050 individuals represent only a small fraction of the wrongful convictions that happen daily.  Nearly all the documented wrongful convictions come from the tiny minority of cases where the defendant was sentenced to the death or life imprisonment.  The vast majority of cases in the system are simple thefts, domestic violence, and drug crimes.  Given the limited resources of the various innocence projects across the country, and the length of the exoneration court process itself (usually years of court hearings), lower-level crimes are almost never given this treatment.  Most wrongfully convicted individuals serve their sentences – usually a few weeks to a few years – and then try to get on with their lives as best they can.

This website exists to help effect change – to help scholars look for patterns of injustice so that the system might reform.  This defense attorney remains hopeful that some reforms will come, but sadly, the news of exonerations and systemic flaws has been widely reported for many years, and reforms to stop wrongful convictions have been few and feeble.

Plead Guilty or Go to Prison for Life

Jacob Sullum makes a strong case in Reason magazine against ridiculous Federal prosecutions of medical marijuana growers:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it.

Of more than two dozen Montana medical marijuana providers who were arrested following federal raids in March 2011, Williams is the only one who insisted on his right to a trial. For that he paid a steep price.

Tom Daubert, one of Williams’ partners in Montana Cannabis, which had dispensaries in four cities, pleaded guilty to maintaining drug-involved premises and got five years of probation. Another partner, Chris Lindsey, took a similar deal and is expected to receive similar treatment. Both testified against Williams at his trial last September.

Williams’ third partner, Richard Flor, pleaded guilty to the same charge but did not testify against anyone. Flor, a sickly 68-year-old suffering from multiple ailments, died four months into a five-year prison term.

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana’s medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams’ sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor’s home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we’ll drop enough charges so that you might serve “as little as 10 years.” No dice, said Williams, still determined to challenge the Obama administration’s assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

“I think everyone in the federal system realizes that these mandatory minimum sentences are unjust,” Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: “They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal.” Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

Of course, even the 5-year-sentence is insane and unfair.  It’s pathetic and sad to see so much government money going into this pointless prosecution and imprisonment in these times of supposed fiscal crisis.

Pettit on the Prison Population, Survey Data and African-American Progress

I just listened to an excellent podcast:

Becky Pettit of the University of Washington and author of Invisible Men talks with EconTalk host Russ Roberts about the growth of the prison population in the United States in recent decades. Pettit describes the magnitude of the increase particularly among demographic groups. She then discusses the implications of this increase for interpreting social statistics. Because the prison population isn’t included in the main government surveys used by social scientists, data drawn from those surveys can be misleading as to what is actually happening among demographic groups, particularly the African-American population.

Everybody basically expects to see statistical racism in the “justice” system, but some of the stats Pettit presents are still shocking – a young black high school drop-out is more likely to be imprisoned than employed!

Pettits ultimate conclusion is more chilling – prison inmates are typically uncounted in statistics measuring things like health, income, employment, etc.  The fact that so many young black men are imprisoned radically skews the statistics measuring the well-being of this demographic.