Do I Need an Attorney on My Misdemeanor Case?

It is becoming much more common that people who are charged with a misdemeanor simply go to court and plead guilty at their arraignment, without ever speaking to an attorney.  The judge will sometimes convey the prosecutor’s offer, or will tell the defendant what the sentence will be if they plead guilty, and the defendant will simply accept the consequences. Any attorney will strongly discourage this practice because ANY criminal conviction can have extraordinary consequences that may not be immediately known without further information.  While pleading guilty may seem easier and more convenient than hiring an attorney, it can later lead to extreme inconvenience and loss of a professional license or a job.

Consider this example – a resident alien is driving under the influence of both alcohol and Vicodin.  A plea to driving under the influence of drugs has severe immigration consequences, whereas a plea to driving under the influence of alcohol does not.  The defense attorney will structure the plea to avoid immigration consequences.  The direct penalties will be the same, but the defendant will not be deported later.  Another example is vandalism – a charge of vandalism will result in a driver’s license suspension if the defendant is under age 25. This is only the beginning of a non-exhaustive list of possible “collateral consequences” of misdemeanor convictions: loss of professional license, loss of driver’s license, bar to military service, loss of right to own or possess guns, deportation, or a bar to receiving student loans.

Good attorneys will be able to talk to you about your job, your background, and your life plans in order to figure out the best result in your case.

Some people go to court and plead guilty because they feel they did the crime and it is best to just face the consequences.  A person should read the charges carefully and at least consult with an attorney (usually office or phone consultations are free) before simply accepting guilt.  Many prosecutors will file cases alleging the most serious possible charges even where there is only a slight possibility that the defendant would be found guilty of the most serious charge.  Take this simple example, a person may be charged with battery where they are only factually guilty of fighting in public.  The person who goes to court and pleads guilty to battery, failing to ask for the lesser charge, will lose the right to own guns.  Another common issue is the per se driving under the influence violations, also known as driving with a blood alcohol content of .08 or higher.  Most non-lawyers will not know how to evaluate evidence that they had .08 blood-alcohol content and that this level could (and should) be challenged at trial. To know how to properly evaluate evidence and the science behind the evidence, the accused needs to have experience reviewing results and familiarity with the (in)accuracy of the science behind it to understand when the results will be upheld as valid.

The issues raised above are simply the most common evidentiary issues that are overlooked by individuals who do not have an attorney.  This list does not include legal errors where accused individuals plead guilty, but otherwise would had charges dismissed because, for example, their speedy trial right or 4th Amendment rights were violated.  When you or someone you love is facing what seem like insignificant charges, consult with an attorney before making a decision that can have extraordinary collateral consequences for you in the future.

The Future of Privacy

This article on privacy was published in the December issue of the La Quinta Gem, a local newspaper:

Privacy rights are becoming a dominant public policy issue in our technology-dominated world.  Americans have long expected privacy in our homes and other intimate areas of our lives.  This right is enshrined in the 4th Amendment to Constitution, which protects all people in the United States from “unreasonable searches and seizures,” and requires probable cause for all warrants.

Government intrusions of the most intimate kind have been highlighted in the news over the last few years. There have been strip searches of children in schools, without parents present, over allegations of theft or drug possession (often no items are found). A recent story, incredibly offensive to civil rights and human dignity, highlights a man who was stopped for a minor traffic issue (rolling stop out of a local grocery store in New Mexico).  The officer believed the was “clenching” his buttocks, indicating that he may be concealing drugs.  A judge signed a warrant allowing anal cavity searches over several hours. After the man was subjected to about 8 types of cavity searches, with no drugs found, he was released. This case is highlighted here because if the authorities will allow such invasive searches, how will the authorities look upon much less invasive drone or “smart” phone surveillance?

Cell phones, the internet, anything “smart” – from cars, to phones, soon to glasses and clothing, have unimaginable potential to enrich our lives, increase productivity, and amuse us.  But the dark side of these inventions is the real potential for the complete loss of privacy and continuous government and corporate observation of the most intimate details of our lives.  Already we are recorded by private industry in most populated areas; we are soon to be confronted with how the government can gather and use that information.

Appellate courts, comprising legal professionals who likely acquired their training before personal computers were invented, struggle with how to make legal rules crafted largely between 1790 and 1970 apply to the hyper-technological present.

Two cases have recently been accepted to the United States Supreme Court regarding cell phone searches. It is unknown how the cases will conclude, but current law in California allows police to go through a person’s cell phone as part of a minor traffic stop.  That’s right, the cops can read all you text messages, e-mails, and look at the pictures on your phone after you have been stopped for speeding.

What if you encrypt your cell phone or computer to keep the government out of your private information?  Some courts hold that the 5th Amendment right against self-incrimination protects a person from being forced to produce evidence against themselves in the form of a pass code.  However, others find no problem in holding a person in contempt and basically jailing him indefinitely until he gives government agents the encryption key or password.  So an individual can be incarcerated until he provides his private information to police, whether or not he has actually committed a crime.

Civilian law enforcement unmanned aerial drone technology is also rapidly becoming available.  Many states (not California) have passed laws to limit police use of aerial drones.  These devices hold enormous potential to help in emergency situations and help police investigation, but the potential for over-surveillance and violation of privacy is very real.  Current “plain view” doctrines could allow police to use drones to watch people in their yard or even to peer through open windows.

People should be aware of both the risks and benefits of new technology so that we can protect our liberty while we embrace these fantastic devices.

Wrongful Convictions

This article on wrongful convictions was published in the November issue of the La Quinta Gem, a local newspaper:

“Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” – Judge Learned Hand, 1923 (United States v. Garrison, 291 F. 646). Unfortunately, that dream is all too real for too many.

It had long been assumed that our justice system always gets the right result.  The fact that the system has a certain “error rate” was exposed with the advent of DNA testing in the 1990s.  Defense attorneys and journalists starting looking into criminal convictions where the results seemed suspect.  This provided a window into the criminal “justice” system by presenting a new way to review old cases and test the accuracy of the jury verdicts.  At present, DNA exonerations have turned into a nonprofit mini-industry, with the result being several hundred exonerations.  Innocence projects across the country have also started looking into other areas of wrongful convictions.  The University of Michigan Law School maintains a National Registry of Exonerations, which currently lists 1,220 exonerations.

Notably, most exonerations involve death penalty cases, other homicides and serious sexual assault cases.  The nature of exoneration work necessarily involves these types of cases.  The work is very time consuming and the cases will typically take years to investigate and then litigate through the court system.  The vast majority of people convicted of crimes would have completed their probation or prison terms before a challenge to a lower-level criminal conviction would wind through the courts.  Also, there is no right to an appointed attorney after direct appeals in lower-level cases, and the non-profit groups that do this kind of work can only take a small percentage of the cases referred to them, so they will start with the most serious cases and only take cases where there is some scientific evidence, such as DNA, to be tested. Others are likely out of luck.  Accordingly, these 1,220 cases on the registry almost certainly represent only the smallest tip of an enormous iceberg of wrongful convictions, each of which represents an innocent person wrongfully convicted and imprisoned.

Because the exonerations that have received the attention of the innocence projects arise from only that narrow category of cases where an individual is serving life in prison and where there is actual scientific evidence to test, we will never know how many individuals have been wrongly convicted in those lower level cases that never receive this level of scrutiny.  These non-homicide, non-sex cases certainly represent well over 90% of the cases in the system.

Groups have studied the reasons that innocent individuals are convicted, and one of the most significant reasons is that their counsel was ineffective, incompetent or overburdened.  Those attorneys appointed to handle these high level cases are expected to be the attorneys most capable, yet oftentimes resources are too slim or incompetent lawyers are not properly supervised, and innocent people are convicted because their attorney did not investigate, consult experts, or simply was not capable of handling their case.  So these substantial problems of reliability at the most serious and elite levels of the justice system leave serious questions about the reliability of the system to get things right in less conspicuous cases.

The best way for a person accused of a crime to avoid a wrongful conviction is to hire a good criminal defense attorney.  There is no safety net in the system, so you need the tools necessary to get through, which only begins with a good attorney.

Forest Wilkerson is a partner at Wilkerson & Mulligan, a criminal defense law firm located in Old Town La Quinta.  She handles felony and misdemeanor cases, and will take cases from pre-arrest through appeal.  For more information call her at 760-777-4322 or visit her website at www.forestwilkersonlaw.com.

Forest Wilkerson gets Attempted Murder Case Dismissed!

Forest won a hard-fought victory this morning. Her client was charged with 3 counts of attempted murder, with allegations that he discharged a firearm and caused great bodily injury to the three victims. The client’s exposure was 96 years to LIFE.

The case arose out of a shooting at a house party around two years ago. Three individuals were shot and seriously injured. From day one, Forest believed that her client was wrongly ID’d and that he was innocent. Unfortunately, he just wore the wrong clothes to the wrong place that day because he was wearing the same “gangster style” clothing as the actual shooters, who also were invitees to the same party. Because he was wearing a black hoodie, he was wrongly identified as the shooter. The prosecution presented 5 hours of testimony by 8 witnesses, and each was successfully discredited.

Forest and her investigator, Enrique Tira, helped “solve” the case for this wrongly accused client. He investigated and she presented an alibi defense that convinced the judge of her client’s innocence. Forest’s presentation of the case was especially skilled and she presented her defense perfectly. She really showed her brilliance when she qualified the prosecution’s investigating officer as an expert in suspect identification and then asked him to list the problems with the identification in this case – the officer gave her about 10 reasons the ID of her client had been problematic.

Great job Forest!

Drug Addiction in the Justice System

Unfortunately, drug and alcohol addiction touches the lives of almost everybody at some point.  Drug abuse and addiction is one of the main factors that gets people in legal trouble and destroys family relationships.

Fortunately, the California legislature, the voters, and the courts have made good progress in the last decade at recognizing the link between crime and drug use and now offer some programs for people struggling with addiction.  People arrested for possession of drugs for personal use will generally be allowed to complete a basic drug program for their first couple cases.

More complicated situations arise where an addict has been stealing or selling drugs to support the habit.  Depending on the individual, they may be sentenced to complete a drug rehabilitation program that will often include 90 days to 1 year of intensive work examining their life, accepting that their drug use is a problem, talking about the pain they have caused others, and getting to the root of the cause of their reliance on drugs.  Rehabilitation is not a “free lunch”, which can be the public perception, but is incredibly difficult.

An even more difficult issue is where a person has attempted to hide or deal with mental health issues by using drugs. Many families are torn apart by family members who have this “dual-diagnosis” because the addict family member can lack insight into their addiction due to their mental illness. Alternatively, the addiction can keep the individual from having insight into their mental illness. Sadly, individuals in this position are often rejected from both mental health courts and drug courts because the players in those courts believe that they can not treat both issues at once, and feel the individual will not be successful. So these most needy people are rejected from the very treatment that they need the most.

If you have a family member who is addicted to drugs, get them help immediately before they end up in legal trouble. Beginning with AA or NA meetings, or an intervention (there are amazing interventionists available to help) is the beginning of the road to success. Rehabilitation centers are also amazing in helping people to overcome addiction and place the addict in a place where they are helped in their recovery by professionals. The best rehab centers are expensive, but there are several competent local rehab facilities that have charity beds and provide essentially the same service in much more humble surroundings.

If your loved one does end up in legal trouble, it is imperative to get an attorney to help through the process. There are many collateral consequences to a drug conviction, and even drug diversion, that are not generally known, such as the denial of federal student loans or deportation. Getting a dedicated and knowledgeable attorney involved early in the process can help you to find proper rehabilitation services to present the best case possible when appearing in court. In addition to helping address the addiction problems immediately, when a person is pursuing rehabilitation, most judges will be at least hesitant to hand down a prison sentence that pulls him or her out of the program.

If you or somebody you love is an addict facing charges, treat this event as a wake-up call, get into treatment, and use it as an opportunity to turn a troubled life around.

Forensic Scientist Claims to Map Bigfoot Genome

Smalfut

DNA testing is almost certainly the forensic evidence most trusted by jurors and most feared by defense attorneys.  Unlike the majority of forensic tests and “science” presented in criminal trials, DNA is real science and is spot-on accurate when done properly.  But DNA testing is no simple thing, and the results will only be as good as the forensic scientist doing the test.

So I found it both amusing and bit scary when I read about forensic scientist Dr. Melba Ketchum’s claim to have sequenced the Sasquatch (Bigfoot) genome.  I thought her claim to be a real expert witness was a bit dubious, but she was named as a DNA expert in a published sexual assault case.

A simple google search reveals that an army of debunkers have examined her results and technique and come to the simple conclusion that she really doesn’t know what she is doing.  For example, there was a long a sophisticated discussion about the problems in her technique on arstechnica.  Sadly, Dr. Ketchum’s Bigfoot work has probably received far more scrutiny than any of her more mundane work testifying as a DNA expert  . . .

Scary Crime Lab News

The ABA Journal just published a chilling article about shoddy and incompetent crime labs. Shockingly, the reports detailed in the article relate to some of the most supposedly sophisticated and civilized corners of the country, including New York City, Boston, and Minneapolis.  Here are some highlights of the article:

In January, the New York City medical examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician who resigned in 2011 after an internal review uncovered problems with her work.

The review, then about half complete, had already turned up 26 cases in which the former technician failed to detect the presence of DNA evidence, including one in which the evidence has since led to an arrest in a 10-year-old rape case. The review uncovered 19 cases in which DNA evidence was commingled with DNA evidence from other cases.

. . . .

[T]he St. Paul, Minn., police department’s crime lab suspended its drug analysis and fingerprint examination operations after two assistant public defenders raised serious concerns about the reliability of its testing practices. A subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles.

Assistant public defender Lauri Traub stumbled onto the lab’s problems when she asked to meet with the analyst who tested suspected drugs one of her clients was accused of possessing. Traub says she was horrified by what she found: The lab, an old-fashioned “cop shop,” was run by a police sergeant with no scientific background, had no written operating procedures, didn’t clean instruments between testing, allowed technicians unlimited access to the drug vault, and didn’t have anyone checking anyone else’s work. Analysts didn’t know what a validity study was, used Wikipedia as a technical reference, and in their lab reports referred to “white junk” clogging an instrument.

5 Men Falsely Accused of Human Trafficking

Five defendants were set free in Riverside on September 5, after the complaining witness admitted during preliminary hearing that she had fabricated the entire story because her pimp was mad at her.  All the men were locked up in county jail and had faced charges that carried potential life sentences.

. . . .Stallion admitted on the stand that she lied. Under questioning from another defense attorney, according to Rodriguez, she had gotten into an argument with her pimp and walked away onto Long Beach Boulevard, which Rodriguez said is known as “Ho’s Row.”

Stallion met the five people and decided to hang out with them, traveling to Moreno Valley willingly. Stallion’s pimp apparently became enraged, Rodriguez said, and the next day Stallion regretted getting together with the new friends and wanted to go back to her pimp.

In an attempt to placate him, Stallion made up the story about being kidnapped and forced into prostitution.

It is rare that a witness cracks like this, and fortunate for the defendants.  If the witness had been a little more invested in her lie or wanted to stick with her initial story for whatever reason, these men might have gotten a life sentence.  Scary.