Expungements Important Even After 40 Years

Posted on May 9, 2012 by Fred Thiagarajah

If you’ve been convicted of a crime in the past, it’s important to have your conviction expunged as soon as possible.  It doesn’t matter if you currently have a job — you never know when your current company may choose to do a background check.  Yolanda Quesada was fired from Wells Fargo for a shoplifting conviction that was over 40 years ago.  Ms. Quesada, who is 58 years old, had been working at Wells Fargo but the company decided to do background checks on their current employees and discovered a 1972 conviction for petty theft that Ms. Quesada had acquired just after high-school.  Clearly, what happened when she was 18 is not reflective of what kind of person Ms. Quesada is today.  Nevertheless, Wells Fargo terminated her because of her criminal history.  This is why it is so important to get your criminal record cleared as soon as possible, no matter how old your convictions are.  Call our offices today for assistance on an expungement.  As Ms. Quesada will tell you, it’s not worth it to just let sleeping dogs lie.

For the full article of Ms. Quesada’s unfortunate story, click here.

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Prosecutorial Misconduct Still Around

Posted on May 5, 2012 by Fred Thiagarajah

The job of the District Attorney’s office is to promote justice, not get convictions at all costs.  And yet there are some Deputy District Attorneys that still don’t get this basic principle.  The vast majority of the prosecutors that I associated with when I was a Deputy District Attorney and the vast majority of the prosecutors that I oppose now are ethical attorneys.  Unfortunately, there are still some “bad apples” in every bunch.  This week, Alameda County Deputy District Attorney Danielle London was placed on administrative leave after it was discovered she ordered sheriff deputies to secretly record a conversation between an in-custody homicide defendant and the defense investigator.  This is absolutely crazy!  For those of you who don’t practice criminal law, this may not seem like a big deal but this type of conduct is not only a violation of a basic tenet of criminal law — the attorney-client privilege — it is also a felony!

The Sheriff’s Office is allowed to record conversations of in-custody defendants when they speak to anyone other than their attorney.  In fact, conversations are routinely recorded and used against defendants in trial.  And defendants know, or should know, that their conversations can be recorded.  Most jails have signs that indicate conversations can be recorded.  However, the police and the prosecution are not allowed to record, or even eavesdrop, on a conversation between a defendant and his/her attorney or the attorney’s team.  And the defense investigator is part of the attorney’s team.  So, law enforcement cannot purposely listen to conversations between a defendant and a defense investigator.  This is criminal law 101.

Now perhaps this type of mistake might be made by a rookie prosecutor.  But Deputy DA London had been a prosecutor for 10 years!  How could she not have known this was against the rules?  And then on top of that, the Sheriff Deputies should have known better.  They should have told the prosecutor that this was illegal — not acquiesce to illegal conduct simply because a prosecutor ordered them to do so.  The Alameda County Sheriff’s Office said they thought it was ok because a prosecutor ordered them to do it.  That’s preposterous.  If a prosecutor ordered them to plant evidence or lie on the stand, would they have done that as well?

Not only was it against the rules, but it’s a felony to record the conversation of an inmate and a member of the attorney’s team.  It’s not often that prosecutors are the ones committing felonies, but when they do, I hope that they are themselves prosecuted to the full extent of the law.  It will be interesting to see whether Ms. London is actually prosecuted.  To not do so would be to hold prosectors to a lower standard of conduct as everyone else.  If she is prosecuted, it will probably be the Attorney General’s office that conducts the investigation and the prosecution.

On a side note, the homicide defendant in Ms. London’s case accepted new plea bargain for manslaughter with seven years in prison, after Deputy DA London was removed from the case.

To read the San Jose Mercury News article on this matter, click here.

 

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Kindergartner Charged with Battery

Posted on May 1, 2012 by Fred Thiagarajah

In Indiana, Pat Lumbley, the principal of an elementary school called the police when a six-year old child kicked him.  Admittedly, the boy had exhibited prior behavioral problems, including kicking and biting another school official.  But arresting a six-year old?  Clearly, this administrator has a distorted sense of reality if he thinks that arresting a six-year old child will serve any legitimate purpose whatsoever.  Unfortunately, he’s not the only one.  The local police lieutenant defended the decision to arrest the child.  If a principal can’t deal with a six-year old child kicking him, then he’s got no business being a principal.

I understand that there’s an increased risk of violence in our schools and that some young adults are more prone to offenses involving guns or drugs or internet crimes.  But these problems are more for junior high-school and high-school.  We should be spending court resources on targeting people who should know better.  There’s no magic age when a child becomes a young adult, but everyone should know that a six-year old shouldn’t be held to the same standards as a 17-year old.

This kid was arrested because the principal Pat Lumbley doesn’t know how to properly discipline a child.  Even if the principal was so much of an idiot that he doesn’t know how to deal with a child, there are a whole range of less severe alternatives — time outs, parental involvement, counseling, suspension, expulsion.  Although I think suspension or expulsion is actually too severe a punishment, it would certainly be better than arresting this boy.  Does Mr. Lumbley have children of his own?  Has he called the police when they don’t behave?    My 5-month old daughter struck my chest with her tiny fist today. Fortunately, she wasn’t being held by Principal Lumbley, or she might have wound up in handcuffs.

What kind of message is our society sending when we allow kindergartners to be arrested?  It’s ridiculous that this boy is being charged with a crime, but since he has been — I would have loved to have been the attorney for this child.  I would tear that principal up on cross-examination.  Hopefully this case will get dismissed or the child will be acquitted.  Anything else would not only be an injustice, it would be ridiculous.

You can check out the article here.

Posted in Child Abuse / Endangerment, Prominent Cases | Comments Off

Oklahoma County DA fires prosecutors for withholding evidence

Posted on April 17, 2012 by Fred Thiagarajah

Oklahoma County District Attorney David Prater fired two assistant district attorneys for withholding evidence in a murder trial.  Prosecutors Kimbrough and Miller failed to reveal exculpatory evidence to attorneys for Billy Thompson when a prosecution witness made a statement to them that was inconsistent with the witness’ statement to the police.  Only the statement to the police was revealed and ultimately, Mr. Thompson was convicted of murder.

It’s shocking that even in this day and age, prosecutors can still withhold evidence in a criminal case.  Many prosecutors are decent attorneys who are ethically trying to perform their job, which is to ensure justice — not simply to obtain a conviction.  Some prosecutors, however, have lost their way and to them, a conviction is more important than seeing justice done.

Posted in Criminal Procedure | Comments Off

Ignition Interlock Devices for All Cars

Posted on April 17, 2012 by Fred Thiagarajah

The government is toying with the idea of requiring car manufacturers to install ignition interlock devices on all cars.  Opponents to the law are claiming that these devices may prevent people from driving even if they under the legal limit and in a few cases, equipment malfunctions may prevent people from driving even if they have no alcohol in their system.  However, the benefits far outweigh the risks if these devices will lead to a reduction in DUIs and DUI-related traffic accidents.  Needless to say, such devices will definitely lead to a reduction in business for me since DUIs are 50% of my practice.  But I’m ok with having fewer clients if it means that I’m living in safer society, and this safety device doesn’t infringe on any of our Constitutional rights.  Frankly, even though the law calls for a .08% blood alcohol limit, I’m perfectly content to have the device prevent people from driving at .05%  or more.  In other countries, like Australia, the limit is .05%.  Why the limit is .08% in California doesn’t really make sense.  Regardless, such devices should be installed on all vehicles.  Unfortunately, people who want to drive drunk are still going to find a way to drive drunk, either by uninstalling the device somehow, or getting another person to blow into their breathalyzer or by some other creative method I haven’t even figured out.  And of course, there will still be drug-related DUIs.  So, I think my business will be safe after all.

For more details, you can check out the article in the LA Times.

 

Posted in DUI / DWI | Comments Off

Installing and Using GPS Device on Car Without Warrant Violates Fourth Amendment

Posted on January 29, 2012 by Fred Thiagarajah

In People v. Jones, decided by the US Supreme Court in January 2012, the Court unanimously declares that placing a GPS device on a car without a warrant is a violation of the 4th Amendment.  In this particular case, the FBI placed the GPS tracking device on the defendant’s car while the car was on public property.  The police followed the defendant using the GPS device for a month and based on the data from the GPS device, they obtained a warrant, which then led to the seizure of cocaine.  However, it is the initial placement of the GPS device that was illegal and therefore everything that followed from that was “fruit of the poisonous tree”.  The Supreme Court held that the placement of the device and the use of the device constitute a search under the Fourth Amendment.

 

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Life in Prison for Cutting Off Husband’s Penis

Posted on January 7, 2012 by Fred Thiagarajah

On July 11, 2011, Catherie Kieu drugged her husband to make him fall asleep and then cut off his penis and threw it down the garbage disposal.  In mitigation, she did call 911 as her husband was tied up and bleeding from his crotch.  Her case is still pending in Orange County Superior Court, with a preliminary hearing scheduled for April 2012, and with charges of torture and aggravated mayhem with enhancements for inflicting great bodily harm and using a deadly weapon, she faces a maximum sentence of life in prison.

Two things jump up in this case — and the poor victim’s manhood isn’t one of them.  First, there’s obviously more to this story than what’s being reported in the media.  Wives don’t normally cut off their husband’s penises, even if the husband was threatening divorce.  Either the husband was severely mistreating his wife and/or the defendant is absolutely off her rocker.  Probably both.

Second, if this case goes to trial, the defense better hope for all female jury.  There’s no way any man will sit on this case and listen impartially to the evidence.  If you have a penis, you’re going to vote guilty, as soon as you’ve heard opening statements.  This might be one of those few cases where the defense may not want a jury trial.  In criminal cases, a defendant can give up the right to a jury and have a bench trial instead.  A bench trial is a trial where only the judge listens to the evidence and makes a decision.  You might want a bench trial if the defense is that she’s crazy.  On the other hand, the defense might try for a hung jury.  If they can prove that the defendant suffered severe abuse at the hands of the victim over the course of the relationship, then you just need a few female sympathizers on the jury that might empathize with the defendant.  As I said before, any man — regardless of race, sexual orientation or religion — is already voting guilty.

I do not envy her public defender.  And if her public defender is a guy … well I hope he can keep his spirits up, because not much else is going to be standing in her case.

Posted in Prominent Cases, Sex Crimes | Comments Off

Dr. Conrad Murray given maximum sentence

Posted on November 29, 2011 by Fred Thiagarajah

Dr. Conrad Murray, who had been convicted of involuntary manslaughter for his participation in Michael Jackson’s death, was sentenced to four years imprisonment, which is the maximum punishment for involuntary manslaughter.  Restitution has also been ordered in this case and although the exact figure remains to be determined, the court will be ordering close to $100 million in restitution.  This restitution amount includes funeral expenses and lost wages that the pop singer would’ve earned but didn’t because of his untimely death.

Before the passage of AB109, Dr. Murray would have served his sentence in state prison.  Now, however, because of prison overcrowding, certain low priority felons serve their penalties in county jail.  Since Dr. Murray does not have a strike conviction, and since his current crime is neither a strike nor a sex crime, he will be serving his sentence in county jail.  Furthermore, because of AB109, the judge has the capability of reducing his sentence to two years custody and two years probation.  Finally, because LA County jails are notoriously overcrowded as well, there’s a chance that Dr. Murray will be released early.

It is highly doubtful Dr. Murray has the capability of paying the total restitution amount, or even close to that amount.  Dr. Murray certainly has the right to challenge the restitution amount, but restitution hearings are skewed heavily in favor of the victims.  If Dr. Murray cannot pay the total restitution amount by the time his sentence and/or probation ends, then the restitution is converted into a civil judgment.  One thing to note is that bankruptcy cannot erase criminal restitution.  This civil judgment will follow Dr. Murray for the rest of his life.

 

Posted in Homicide, Prominent Cases, Restitution | Comments Off

Riverside County Will Make Inmates Pay for Jail

Posted on November 20, 2011 by Fred Thiagarajah

Riverside County has passed legislation that will require inmates in county jails to pay up to $142 per day for their incarceration.  The legislation was passed in response to AB109 which now requires that all newly convicted non-serious, non-violent, non-sex offender felons be incarcerated in county jails as opposed to state prisons.  This new state law will decrease the amount of inmates in state prisons and increase the number of inmates in county jails.  Many counties are looking for innovative methods to defray the increased costs of more inmates.  Riverside County decided to charge the inmates themselves.  Judges are required to evaluate an inmate’s financial situation to determine whether the inmate has the ability to pay .  Also, the fees charged can only be collected after an inmates pays off restitution, court fines and probation costs.  Furthermore, the fees are civil in nature — this means that failure to pay does not lead to more jail time.  The County will attempt to collect the money through civil means — garnished wages and tax returns, liens on homes and vehicles.  Parents can be assessed fees for incarcerated juveniles.  Most inmates are indigent and don’t have the money to reimburse the county, but the county may recover some money from a few inmates who are more financially solvent.  Neither Los Angeles nor Orange Counties currently make the inmates pay to stay at county jails, although both counties do allow private jails where inmates can pay to stay.

Posted in Uncategorized | Comments Off

San Diego County man arrested for taking thousands of “upskirt” photos

Posted on November 11, 2011 by Fred Thiagarajah

On November 2, 2011, Julio Cesar Garcia was arrested for taking thousands of “upskirt” photos.  Mr. Garcia would use his mobile phone to take pictures and videos up women’s skirts, without their permission.  Garcia has been charged with more than 20 misdemeanor counts including secretly filming a person, annoying / molesting a child and loitering near a child.  There are photos depicting about 100 different victims, with the ages mostly ranging between 14 and 30, although at least one victim appears to be in her 60s.  The one misdemeanor count of loitering near a child stems from him secretly filming girls at a school bus stop.

Penal Code section 647.6, which prohibits annoying / molesting a child, is usually a misdemeanor but a conviction requires mandatory sex offender registration pursuant to Penal Code section 290.

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