Sex crimes of all nature, especially child sex abuse crimes, are considered very serious crimes in Pennsylvania. Under Pennsylvania Statutes Sections 3121-3130, you could be charged with the most serious felony crimes of rape, involuntary deviate sexual intercourse, sexual assault, institutional sexual assault, aggravated indecent assault, or misdemeanor charges for indecent assault, indecent exposure, sexual intercourse with an animal or conduct relating to sex offenders. Prosecutors vigorously try these cases and courts are harsh on sentencing convicted sex offenders involving sex crimes against children. Prison sentences for the most serious sex felony crime convictions are lengthy ranging from maximum minimum 10 year sentences to 40 years for crimes involving rape and multiple deviate sexual intercourse charges involving minors, especially minors under 13 years of age and fines up to $100,000. Convicted sex offenders must register on the state sex offender registry after serving their sentences, which could affect where you can live and may affect other aspects of your life such as employment. Even if you are not accused of these offenses, you can still be charged with failing to report serious sex crimes to law enforcement and also be subject to perjury charges if you lie under oath about not having knowledge of such crimes.
Case Example
Former Penn State football defensive coordinator and assistant football coach Gerald “Jerry” Sandusky was arrested on November 5, 2011, accused of child sex abuse crimes involving eight boys over a time span of approximately 10 years. He was released on a $100,000 bond after the arraignment on 40 criminal counts according to the Pennsylvania Office of the Attorney General. Charges include seven felony counts of involuntary deviate sexual intercourse, corruption of minors, endangering the welfare of a child, indecent assault, unlawful contact with a minor, single counts of aggravated indecent assault and attempted indecent assault. Sandusky is facing up to 20 years in prison for the seven felony counts of involuntary deviate sexual intercourse alone besides additional sentences for other charges if he is convicted. Mr. Sandusky denies the charges. Penn State athletic director Tim Curley, 57, and the University’s vice president for finance and business as well as having responsibility for overseeing the University Police Department, Gary Schultz, 62, have been charged with perjury and failing to report information they had regarding the sex abuse allegations.
At one time, Mr. Sandusky was considered to be a likely replacement for the legendary Joe Paterno, Penn State’s head coach position, prior to his retirement in 1999. After retiring from Penn State, Mr. Sandusky continued his work with at-risk-children through his non-profit organization Second Mile, which he founded in 1977. All of the victims in the case are alleged to have initially come into contact with Mr. Sandusky through his Second Mile organization. In 1999, Mr. Sandusky was banned from the Clinton County school district after the mother of an approximate 11 or 12 year old boy at the time reported to the high school that her son received expensive gifts and trips to sporting events and reported to her that he had been sexually assaulted by Mr. Sandusky during an overnight stay at his house. These charges triggered the State’s investigation into Mr. Sandusky’s current alleged sexual abuse charges.
Other allegations by a graduate assistant, Mr. Kelly, took place in 2002 when he reported that he saw Mr. Sandusky sexually assaulting a naked boy approximately 10 years old in a locker room of the Lasch Football Building located on the campus. He and his father reported the incident to Mr. Paterno, who then reported it to Mr. Curley, but it was not reported to any law enforcement agencies or Child Protective Service Agencies as required under Pennsylvania Law. Mr. Paterno has not been charged with any wrongdoing in the case according to prosecutors. Mr. Curley testified that he banned Mr. Sandusky from bringing any children onto the campus and that he reported the matter to Penn State President Graham Spanier. Mr. Sandusky was no longer coaching at Penn State during this time.
On November 9, 2011, Joe Paterno announced he was retiring at the end of the season, but the University made the decision to ask Paterno and President Spanier to leave effectively immediately, naming defensive coordinator Tom Bradley as the interim coach and provost Rodney Erickson as interim University President. With such a major scandal for a school that has maintained one of the most pristine images in college sports and one of four major schools that have never been found guilty of any major violations by the NCAA, this is a devastating blow. With the school’s reputation at stake, the University has hired their own investigator, former FBI director Louis Freeh, to conduct an independent investigation regarding the Sandusky child sex abuse allegations.
Hire an Attorney
If you are accused or charged with Pennsylvania sex crimes involving minors or other related sex offenses, these are very serious charges and require the assistance of a Pennsylvania Criminal Sexual Offense Attorney to defend you. The attorney understands the Pennsylvania laws and can aggressively defend you by interviewing witnesses and may be able to convince authorities and prosecutors to drop or dismiss charges against you, or in some cases, avoid charges from being filed against you if were falsely accused. The attorney may also be able to get charges filed against you reduced to a lesser crime such as indecent exposure or get you community service or probation.
Sources
http://www.csmonitor.com/USA/Latest-News-Wires/2011/1121/Penn-State-appoints-ex-FBI-director-to-lead-child-sex-abuse-investigation
http://online.wsj.com/article/SB10001424052970203716204577020001842475304.html
http://www.usatoday.com/sports/college/football/story/2011-11-05/penn-state-abuse-case/51083628/1
http://espn.go.com/college-football/story/_/id/7212054/key-dates-penn-state-nittany-lions-sex-abuse-case
http://deadspin.com/5859426/pa-criminal-attorney-on-sandusky-judge-i-have-never-had-a-client-who-was-charged-with-those-counts-released-on-unsecured-bail
http://www.daytondailynews.com/news/nation-world-news/pa-sex-crime-laws-under-focus-with-abuse-case-1290464.html
http://www.legis.state.pa.us/cfdocs/legis/Search/statuteSearchAction.cfm?maxfiles=10&autoStopLimit=1000&index=cons&request=rape
San Diego (California) – Defense Attorney Shannon Dorvall of the Imhoff & Associates Law Firm, one of the largest multi-jurisdictional criminal defense firms, escorted her client Luis Galicia into the arms of his loving family upon his release after successfully getting her client’s case dismissed by the First District Court of Appeals on November 23, 2011. Luis served four years after a trial court convicted him for sexual molestation of his sister Araceli Galicia. At the original trial, the state’s doctor testified that she believed that Araceli had been forcibly raped, despite the testimony of the doctor for the defense, who stated he disagreed with the state’s evidence. Even though Araceli recanted her testimony and said that the charges were not true, the trial jury convicted Luis Galicia, and the sentence handed down was two 15 to life sentences.
The family hired the Imhoff firm to file an appeal on Luis’ behalf. While awaiting the Judge’s response in the appeal case, the family took Araceli to two doctors who examined her and disagreed with the state’s doctor, both stating that Araceli’s hymen was intact and that she had never had sex. The Imhoff firm also filed a Writ of Habeas Corpus on Luis Galicia’s behalf with the First District Court of Appeals, who agreed to order a hearing, and the Imhoff firm was also successful in obtaining the cooperation of the San Diego District Attorney’s Office to review the new medical evidence. The District Attorney agreed to have the Children’s Hospital also review the trial photos and examine the girl, and they agreed also that she had never had sex. The District Attorney testified at the hearing that the trial evidence was nonsense. The Judge ordered the case dismissed and the release of Mr. Galicia.
The Imhoff firm believes that no family should have to endure the ordeal that the Galicia family has gone through. Unfortunately, innocent people can be accused of all sorts of crimes they have not committed. If a person is arrested or charged with a sex crime, these are serious charges and can ruin a person’s reputation and life as well as destroy their family’s lives. Imhoff & Associates believes in justice and that all persons are innocent until proved otherwise. That is why the Imhoff legal defense team vigorously defends their clients by specializing in the most innovative legal services defense strategies and treats their clients with the utmost dignity and respect. The firm’s outstanding and skilled defense attorneys work diligently and creatively to offer the highest level of service to our clients and uphold the principles and standards upon which this firm was founded by providing service to clients with members of the firm available 24/7.
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Myrtle Beach South Carolina takes bomb threats and making false statements about explosive devices seriously. Under South Carolina Code Statute 16-23-750, you could be charged with a Class D or E felony when such threat constitutes threatening to kill, injure or intimidate individuals or damage and destroy property by using or threatening to use an explosive device or incendiary device. In South Carolina, there is no statute of limitations for any felony offenses. You can be arrested and tried and convicted at any time during or after the incident has occurred. Terrorist threat charges and convictions can result in fines; jail time of not less than 1 year or more than 15 years as well as courts may order anger management and violence prevention classes for individuals convicted of such crimes.
Case Example:
Saturday night, November 12, 2011, police shut down and evacuated Wal-Mart’s in Horry County, including the Wal-Mart in Myrtle Beach when Horry County Police said a caller using a phone booth along 544, told a 911 operator that they had left a bomb in a Wal-Mart store that might go off at 9 p.m., but did not disclose the exact location. Since the threat involved all of the super centers located on the Grand Strand and neighboring Myrtle Beach area police evacuated both the Wal-Mart in Carolina Forest off highway 501 and the Wal-Mart on Seaboard St. in Myrtle Beach. Police reported that they did not find a bomb in either location. It is not the first time that Wal-Mart has had bomb threats made against it. Police are continuing their investigation to find out who made such a prank call. Police consider this type of threat a high felony offense with serious consequences.
Attorney Assistance
If you are charged with making a bomb threat or giving false information about an explosive device, you are facing serious felony charges in South Carolina and require the assistance of an experienced criminal defense attorney. A South Carolina criminal defense attorney can help in presenting all the facts of your case. The attorney will also investigate whether your rights were violated during police interrogation, whether you were given your Miranda Rights, and whether the police conducted any illegal search and seizure during your arrest. The attorney may also be able to help get your charges reduced, dismissed, or obtain probation, community service or attending of anger management or violence prevention classes.
Sources:
http://www.associatedcontent.com/article/9145703/bomb_scare_temporarily_closes_area.html?cat=8
http://www.thetandd.com/news/opinion/article_aaee4316-f8ff-11e0-8baa-001cc4c03286.html#ixzz1dmevlsAp
http://www.judicial.state.sc.us/summaryCourtBenchBook/HTML/OffensesF.htm
http://www.carolinalive.com/news/story.aspx?id=685986
http://statutes.laws.com/south-carolina/title-1
California Domestic Violence
Under California law, domestic violence incidents involve the corporate injury or trauma to a current spouse, former spouse, domestic partner, co-parent of a child, girlfriend, boyfriend, fiancée or someone you are dating by either striking the person violently or causing bruising or swelling. You could either be charged under California Penal Code Section 273.5 with a felony domestic violence or a misdemeanor battery under Penal Code Section 243(e)(1), if there is no visible sign of injuries. Penal Code Section 422 also considers threatening someone with the intent to commit harm against them as a crime as well. California police have the authority to arrest offenders who violate restraining orders under Penal Code 836. However, the district attorneys are not required to prosecute offenders. As a result, victims may be at a higher risk of experiencing repeat incidents of domestic violence by their ex-domestic partner, person they have had an intimidate experience or dating experience with.
Penalties and Fines
If you are convicted of domestic violence charges in California, you could face a minimum of 30 days in the county jail or mandatory attendance of a batter’s class for a first time misdemeanor, or one to four years in the state prison and a fine up to $6,000 or both for a felony domestic violence charge. Immigrants convicted of domestic violence will automatically be deported. Having a domestic violence charge on your record may prevent you from obtaining a job or a government college loan or other financial assistance.
Case Example
Nick Oliveri, the bassist and singer with Queens of the Stone Age, was arrested on Tuesday July 12, 2011, at his Hollywood, California home for domestic violence after a five hour standoff with the LAPD SWAT team. According to the police, Oliveri and his girlfriend got into an argument on Monday. Oliveri left the scene before police arrived and returned to his home on Tuesday. Police were afraid that he might have taken his girlfriend hostage, but she left the home around 8:30 p.m. on Tuesday evening. Oliveri was taken into police custody around 10:30 p.m. on Tuesday evening after LAPD knocked on his door. Investigators are checking into what went on at the house and whether Oliver was under the influence of narcotics.
California domestic violence/domestic battery charges are serious. If you are arrested for either, you should contact a California criminal defense attorney immediately to represent you. The attorney can argue defenses such as self-defense, defense of others or accident in order to get your charges reduced to a lesser crime, get you probation or attendance of a batter’s class or get the charges dismissed.
California Penal Code Sections 548-551 make it a crime for anyone to willfully injure, destroy, secrete, abandon, or dispose of property insured against loss, damage from theft, embezzlement or casualty (excluding fire, which is not included under the definition of casualty in this regard) with the sole intent to defraud the insurer, whether the property belongs to you or another person. You can be charged with a misdemeanor or a felony depending on the circumstances of the insurance fraud crime and the amount of money involved.
It is illegal to aid, abet, solicit or conspire with anyone to commit the following acts which constitute insurance fraud under California Penal Code Sections 548-551:
· Knowingly presenting a false or fraudulent insurance claim for payment for
loss of injury.
· Knowingly presenting multiple claims for the same loss or injury to more
than one insurance company with the intent to defraud them.
· Knowingly participate in a vehicular accident with the intent to present a false claim.
· Knowingly present a false or fraudulent claim for payments for loss
for theft, destruction, damage or conversion of any vehicle or vehicle part or the contents of a motor vehicle.
· Knowingly make a false or fraudulent claim for a health care benefit or
payment including worker’s compensation health benefits.
· Knowingly presenting any false or misleading statements to an insurance
company or to fail to disclose an occurrence or event
· Intentionally burning property (act of arson) to collect an insurance payment
or assist the owner of the property to collect a payment from their insurance company.
If found guilty of any of these offenses and the claim amount is more than $950.00, you face imprisonment in the county jail not to exceed one year and a fine not extending $10,000, or imprisonment in the state prison for two to five years and a fine not to exceed $50,000 fine, or double the amount of the fraud, whichever is greater. For a claim amount under $950.00, you face imprison in the county jail not to exceed six months and a fine of $1,000. You may also have to pay restitution in an amount determined by the court for medical evaluations or treatment services. If you have been previously convicted under the California insurance statute of insurance fraud, you will not be eligible for probation or a suspended sentence. You may receive an enhanced sentence ranging from two years to five years sentence for each prior conviction. A subsequent conviction is punishable by imprisonment in a California state prison and a fine of $50,000. Fines are doubled if the fraud involves an automobile claim.
Case Example:
Jeweler Lior Bitton, 36 of Los Angeles, owner of Pacific Diamonds and Gems jewelry store located in Westminster, CA was arrested for fraudulently collecting over $99,000 from his insurance company after filing a false claim to his insurance company reporting that a 4.21 carat diamond had been stolen when one of his employees had been robbed of 20 diamonds. Meanwhile, in September of 2009, Bitton had registered the same diamond with the GIA (Gemological Institute of America). The unique properties of the diamond act as a fingerprint in which to identify the stone. In March 2010, Bitton went to Israel and met with a diamond wholesaler. The wholesaler presented the diamond to the GIA. The GIA identified the diamond as the same diamond that Bitton had registered with them previously. He was arrested by Westminster Police and charged with one felony count of insurance fraud. He faces a maximum five year prison sentence in state prison if convicted. The Westminster police recovered the diamond and have it in their custody.
If you are charged with insurance fraud in California and you are convicted, you would not be able to obtain insurance in the future or you may not be able to find employment. It is recommended you hire an experienced California criminal defense attorney to defend you. The attorney will review all the evidence to make sure that the prosecutors have a case against you. The attorney may be able to get you a reduced sentence and penalties or get the charges dismissed based on lack of evidence or other defenses such as you were unaware of the fraudulent activity of another person.
By: Vince Imhoff, Attorney at Law and Ariella Rosenberg
It is common knowledge that defendants in the United States have the right to a trial by jury, as is clearly stated in the Sixth Amendment of the United States Constitution: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. However, what many defendants dont realize is that there is the possibility of waiving the right to a jury and having a trial that is only before a judge. Although perhaps not intuitive, this type of trial, known as a bench trial, can in some situations be preferable to a trial by jury.
In July of 2005, Richard Hawkins, a former executive facing fraud charges in San Francisco, saw the benefits of waiving his right to a jury when U.S. District Judge Martin Jenkins acquitted him of all charges. Amid the growing public resentment of white-collar criminals, Mr. Hawkins may not have fared so well had he been tried by a jury of his peers.
A bench trial is a trial before a judge instead of an entire jury. The general provisions for a trial by bench are laid out in the Federal Rules of Criminal Procedure: In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (Fed. R. Crim. P. 23(c)). In a bench trial, a judge must determine all questions of law and be the trier of fact, whereas in a jury trial the judge is responsible for questions of law and the jury is the trier of fact.
In general, bench trials are governed by the same rules as jury trialsthe rules of evidence and procedural methods are the same in both. Specific procedure is determined by the applicable state code. New York State Consolidated Law specifies, for example: The provisions governing motion practice and general procedure with respect to a jury trial are, wherever appropriate, applicable to a non-jury trial. (N.Y.C.L. 320.10).
Despite similar procedural guidelines, however, bench trials are often less formal that jury trials. For example, the court may allow the admission of provisional evidence in a bench trial, as this evidence could always be struck in the future without fear of misleading a jury. Additionally, bench trials can often be faster than jury trials, as time is not spent selecting, sequestering, and instructing a jury.
Under the rules of Federal Criminal Procedure: If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. (Fed. R. Crim. P. 23(b)). Although this is the general rule, specific criminal procedure varies by state. In New York, for instance, Except where the indictment charges the crime of murder in the first degree, the defendant may at any time before trial waive a jury trial. (N.Y.C.L. 320.10).
Even if a defendant is eligible for a bench trial, it is important to recognize that both the defendant and the prosecution have the right to present the case to a jury . Therefore, the prosecutor assigned to the case must approve the waiver of the jury trial. Thus, a defendant going before a judge who is known to be more likely to acquit may not receive the prosecutions approval of a bench trial, if the prosecution thinks that the judge would be inclined to rule in a defendants favor.
Finally, it should be noted that in certain situations, such where the charge is for a petty offense (such as an infraction in California, or any crime where the maximum sentence is less than six months in a federal prosecution), or the defendant is a juvenile, the right to a trial by jury may not apply, and the defendant will be subject to a mandatory bench trial. Persons accused of violating probation in most jurisdictions are entitled only to a court trial. In the event that the probation violation is also charged as a new criminal offense, the court may, on the prosecutors motion, simultaneously hear a bench trial on the probation violation while the jury hears the evidence and delivers a verdict on the new charge. Thus, even if the jury acquits the defendant of the charge, the judge may be convinced that the defendant violated her probation, and impose punishment for that violation. In general, however, defendants charged with offenses for which they face significant jail or prison time may have the opportunity to choose whether or not to waive the right to be tried before a jury, making it important to seek the advice of a trained, legal professional when considering ones options.
An experienced attorney will weigh the pros and cons of a trial by bench with a client to determine if this type of trial would be to a clients advantage. Generally, defense attorneys view juries as the safer option. This is in part due to the fact in the event the jury cannot reach a verdict, the defendant may be let free, or offered a highly advantageous plea bargain if the prosecutor does not wish to retry the case, and at the very least, will have a chance to fight the case again. Out of a jury of 12, it is more likely to find at least one sympathetic ear than when going before a single judge. Furthermore, unlike judges, jurors do not see hundreds of identical cases in any given year and are may be more sensitive to the particular circumstances of a defendants case than a judge might be. In some jurisdictions and in some cases, however, a jury may be composed of less than 12 people, and not all jurisdictions require a unanimous verdict from a jury. For example, Colorados Constitution, Article 2, Section 23, provides that The right of trial by jury shall remain inviolate in criminal cases; but in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Floridas Rules of Criminal Procedure only guarantee a 12-member jury in capital casesother cases may have as few as six jurors
In certain instances, however, a bench trial could prove to be to a defendants advantage. This type of situation might arise if the legal question in the case is based on technical arguments requiring the type of legal distinctions that only a judge is likely to understand. Also, a defendant who faces a weak case, but has an extensive prior record, may fear that if he testifies, a jury would tune out the facts of the case and focus on the prior record.
In some jurisdictions, bench trials are common, and judges appear more willing to truly weigh the evidence and acquit a defendant in the event the prosecutor cannot prove the case beyond a reasonable doubt. In other jurisdictions, bench trials are quite rare, and it is possible that judges are not entirely used to the ramifications of acquitting a defendant. In the local slang of some courthouses, a bench trial is known as a slow plea, meaning that the local culture understands that the purpose of a bench trial is to find the defendant guilty, and present details of the case to the judge for purposes of sentencing. In such a jurisdiction, a defendant who believes in her innocence would be ill-advised to waive a jury.
Even if you ultimately choose the more common option of invoking your right to trial by jury, it is important to know your right to request that the prosecution consent to a trial by bench, and to work with an attorney who can advise you on the nuances of your particular situation to ensure the best possible outcome.
Our great nation was founded upon our forefathers refusing to be abused by an oppressive British government any longer. They were prepared to lay down their very lives and many did during the war that ensued to claim our independence. They believed that many of our rights were being ignored or taken away and in some cases never recognized in the first place
Those rights are precious to every American and in many cases left to criminal defense attorneys to preserve. In June of 2008, the United States Supreme Court made a ruling that interpreted this very simple but controversial sentence.
In The Bill of Rights, the 2nd amendment reads:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.
Firearm owners in this country are tired of being considered criminals, gun nuts or simply paranoid and a threat to society. After over 100 years of silence, the Supreme Court finally made a ruling on the meaning of this extremely important right.
The Supreme Court felt that Americans do not need to be members of a “well regulated militia” to ‘keep” and “bear arms”. The rights of the people to possess firearms (arms) “SHALL NOT BE INFRINGED”
They further went on to say that Americans possessing arms was and still is necessary to remain a free nation. When governments remove all of the weapons from its citizens it is free to abuse them in any way it sees fit without resistance. This was the same reason we declared our independence from British rule in the first place.
Firearm owners are being harassed and imprisoned in several area’s of our nation for simply possessing legally obtained firearms. Defense attorneys are sometimes all that stands between an individual and the government who is attempting to ignore our most basic rights.
Imhoff and Associates has defended and protected the rights of thousands of clients. The individual states and local governments are still allowed to make rules and regulations about the type of firearms, requirements to purchase and own one and other types of regulations but they are prohibited from preventing law abiding citizens from possessing firearms in their homes and businesses. These complex issues can often lead an otherwise law abiding person to be jailed or fined for what may amount to an unconstitutional action by the police or government.
Don’t let your rights be taken from you. We will fight for you so justice will prevail in your case as well as protect all of the rights of the citizens of our nation.
LOS ANGELES DAILY JOURNAL
By Claudia Rosenbaum
Recently, the Due Process Clause guarantees afforded by the constitution have been treated as mere discretionary guidelines. Earlier this month in New York City hundreds of protestors were held for close to three days denied their due process rights. Three days would seem like a short time to one citizen who was held in North Carolina without his due process rights for close to two years. While the situations and circumstances of arrest were much different, the refusal of law enforcement in both cases to grant fundamental constitutional rights was the same. The denial of due process meant no access to an attorney, no opportunity to post bail and no arraignment to face charges before an impartial judge.
Later this month, the New York Supreme Court will decide whether to make a permanent contempt holding and fine the New York City administration for denying protestors their fundamental due process rights during the Republican National Convention. Instead of abiding by New York law, which requires individuals to be charged within 24 hours of arrest, more than 600 protestors languished in holding pens for days. They were denied access to an attorney. They were denied an opportunity to post bail. And they were denied their legal right to an arraignment. The protestors were released only after acting New York Supreme Court Justice John Cataldo held the city in contempt and threatened the city with $1,000 fine per individual held past his ruling. By the time they were freed, the convention they had come to protest was over.
New York City officials denied purposefully detaining the protestors unnecessarily. Officials said the city was overwhelmed with the influx of civil disobedient protestors. In total, 1,821 people were arrested during the convention, the largest number of arrested from any political convention. But New York Police Commissioner Raymond W. Kelly had planned ahead for such numbers. His department, he said, spent 18 months planning and studying the opposition and deployed 10,000 NYPD officers for the convention. Kelly even helped oversee the creation of a multi-agency command center, which served as the nerve center where 66 separate city, state and federal agencies coordinated their work. Due to security considerations protestors had already agreed before the start of the convention to have their rights to free speech curtailed and limited to free speech zones.
Yet, for all the advance preparations there were no efforts being taken to process the protestors after their arrest. Instead of charging and arraigning individuals within 24 hours as required by New York law, many of the protestors languished in holding areas for days denied their fundamental right to due process. This occurred even though the courts calendar had been cleared for the week and additional personnel were standing by to handle the influx.
Inexplicably, this flagrant violation of the Fifth and Fourteenth Amendments only a month after the US Supreme Court emphasized the importance of ensuring that citizen is allotted their right to due process. In that case, Hamdi v. Rumsfeld, the Supreme Court held that every US citizen has the right to due process even an alleged enemy combatant. In the Hamdi case, the singular undisputed fact was that Yaser Esam Hamdi was apprehended on the battlefield of Afghanistan. A declaration from a Defense Department official alleged various details regarding Hamdi’s trip to Afghanistan, including his suspected affiliation with a Taliban unit during the time when the Taliban was battling U.S. forces. His father, however, contends he was working as an aid worker in Afghanistan. Neither party proffered any evidence to back up their assertions as any requests for an in-camera review, a closed showing of evidence before the judge, were denied.
Justice Sandra Day OConnor, who wrote the decision for the majority, said that [d]ue process demands that a citizen held in the United States should be given an opportunity to legally contest the factual basis for that detention. History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat, she added. The Hamdi decision reaffirmed the fundamental nature of a citizens right to be free from involuntary confinement by his own government without due process of law.
As a criminal defense attorney, it is frustrating to practice in a climate which permits civil infringements and a denial of due process. In todays age of terror warnings and threats that there has already been an unprecedented encroachment on not only our constitutional rights but also on our civil liberties. Under the fog of war, these infringements have gone unchallenged. And while for a majority of Americans, the concerns of an enemy combatant or even of the protestors seem far removed, the encroaching losses of liberties that the Supreme Court addressed are closer to home than most realize.
Allowing the police to sidestep the constitution at their discretion is an affront to our democratic principles. The framers of the Constitution, specifically through the Fifth Amendment, sought to ensure our nations citizens are not deprived of life, liberty or property without due process of law. Yet, somehow, civil liberties are being brushed aside. The government, playing on the nations fears has used this period to justify forgoing civil liberties which they reasoned was a small price to pay for national security. We, as a nation, must keep alert, not only from terrorists, but from those who would threaten and deny us our constitutional rights.
Claudia Rosenbaum is an associate with Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.
By Vince Imhoff, Esq. and Sapana Shah
From Wild West heroes, to shows like Miami Vice and the A-Team, and to big-budget action movies like Lethal Weapon, Rambo and Die Hard, the visual media has not only glamorized the gun, but also shown exactly how pervasive weapons are in our culture and society. Though we frequently see guns in cartoons and television dramas and can readily find fake weapons in toy stores, the reality of weapons possession is nonetheless, a very serious and complicated matter.
The issue of weapons rights is one of the most controversial debates in the United States. The central point of contention behind the debate is the interpretation of the Second Amendment of the United States Constitution: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The Amendment originally referred to the right of organized militia to possess firearms; while gun control advocates, today, endorse this original intention, gun rights groups, particularly those led by the National Rifle Association believe that such rights enshrined in the Amendment are inherently granted to all law-abiding citizens. As a result, weapons possession rights have become a matter of federal, state, and local legislation. To complicate matters further, there is little uniformity among states regarding weapons possession laws, particularly as it applies to the primary regulatory issues of weapon type, and the age and criminal record of those in possession of weapons.
Among US historys most glamorized outlaws are the 1930s gangsters of Bonnie and Clyde, John Dillinger, etc., whose crimes led the federal government to expand gun control measures to the federal level. Since then, Congress began passing initiatives regulating the sale of fully automatic firearms like machine guns, mandating that gun sellers be licensed, and prohibiting persons convicted of violent felonies from purchasing guns. With the assassinations of President John F. Kennedy, Martin Luther King, and Bobby Kennedy in the 1960s Congress enacted the Gun Control Act of 1968 which regulated imported guns, expanded gun?dealer licensing requirements, and expanded the list of persons not eligible to purchase guns to include persons convicted of any non?business related felony, minors, or persons found to be mentally incompetent, and users of illegal drugs. In 1990, legislation was passed which banned the manufacturing and importation of semi?automatic assault weapons. In 1994, the Clinton Administration imposed the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103?322) also known as the 1994 Assault Weapons Ban, which prohibited 19 different types of military assault weapons; although this ban expired in September 2004, some states, including California and New York, have instituted similar provisions to maintain proscription of assault weapons.
Each state defines specific regulations for the sale and possession of weapons, including those specific to concealed and assault weapons, the background and criminal history of the owner, as well as licensing and purchasing requirements. Generally, about seven states prohibit concealed weapons; in over half the states, all non-felons are able to obtain licenses to carry concealed weapons. Only one state, Vermont, has no licensing or permit requirement. Currently, twenty-one states either prohibit or substantially regulate this secondary market for minors; more than twenty states regulate all secondary sales through registration or licensing requirements. Because minors and criminals can easily obtain weapons through the secondary market in those states that do not have such regulationa phenomenon known as the “gun show” loophole many states, including California, New Jersey, Hawaii, Connecticut and Maryland have enacted bans on certain types of automatic weapons. Four statesSouth Carolina, Virginia, Maryland, and Californiahave laws that limit legal purchases of handguns to one a month per buyer. (David L. Raybin, Stick to Your Guns: Restoration of Tennessee Firearms Rights, Tennessee Bar Association Quarterly, March 2003).
California law, in particular, restricts the sale of all semiautomatic assault weapons that have specific military features such as pistol grips and folding stocks as well as a list of assault weapons and their copies such as the AK47 and Uzi. People who owned such assault weapons prior to the law are required to register the weapons and may not sell or give them to anyone else in the state. State law also restricts the sale of rapid-fire ammunition magazines in excess of 10 rounds. A minor may not possess a handgun, except with written permission or under the supervision of a parent or guardian. Furthermore, it is a misdemeanor to manufacture or cause to be manufactured, import into California for sale, keep for sale, offer or expose for sale, give, or lend any “unsafe handgun. (California Penal Code Section 12020).
Where a person is under indictment for a felony ? even before they are convicted ? it is unlawful to acquire firearms. (18 U.S.C. 922(n)). Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally, it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms (18 U.S.C. 922 (g)(9)). Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended (18 U.S.C. 922(g)(1)).
California prohibits anyone convicted of a felony, or who is a drug addict, present or former mental patient, ever committed for mental observation, or acquitted by reason of insanity to own or possess any firearm. People with certain misdemeanor convictions involving force or violence may not possess or own any firearm within 10 years of the conviction. A person who has been adjudicated as a juvenile offender or delinquent for any offense, which would be classified as a felony or misdemeanor involving force or violence if committed by an adult, may not own or possess any firearm until age 30.
While federal legislation and legislation in many states prohibits anyone convicted of a felony from possessing a firearm, a restoration of civil rights, or an expungement or pardon of a convictionas a matter of State lawmay allow a felon to regain weapons possession rights (18 U.S.C. 921(a)(20)). Generally, a state restoration of rights may still impose restrictions on possessing certain types of weapons or may even retain federal mandates notwithstanding a state restoration or rights. In California, if a felon meets proper requirements, he or she may apply for the Certificate of Rehabilitation and Pardon or the Direct Application for Pardon, the latter made directly to the Governor. Under California Penal Code Section 12021, the person granted a full and unconditional pardon by the governor may lawfully own and possess any type of weapon that may be lawfully owned and possessed by other citizens in California.
Federal, state and local legislation governing various regulatory weapons issues consistently undergo significant changes. Particularly important is reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon US citizen as well as a person with a criminal conviction. Clearly, the right to own and possess weapons that is embedded in the Second Amendment is susceptible to narrow interpretation, thereby increasing the importance of other forms of relief in order to retain fundamental weapons possession rights. A person with a criminal conviction may very well restore these rights by obtaining a Certificate or a Direct Pardon by the governor of the jurisdiction. Additionally, if a person is found with an unlawful possession of weapons, it is possible that the situation and method in which the evidence was procured is illegal; in order to protect oneself from the serious penalties that include lengthy prison or jail time and fines, an understanding of federal and state search and seizure laws becomes particularly imperative.
Due to the constantly evolving laws, maintaining weapons possession rights now requires a thorough understanding of both fundamental Constitutional protections and civil forms of relief. Thus, while the likes of Billy the Kid and Elliot Ness have fashioned the glorification and desensitization of weapons in nearly all aspects of popular culture, the reality of possessing weapons is the possibility of facing severe penalties for illegal usage and the necessity for understanding all legal protections to prevent unwarranted convictions.
LOS ANGELES DAILY JOURNAL
By Vince Imhoff and Claudia Rosenbaum
Leondro Andrade took nine videotapes from Kmart, intended as Christmas presents for his niece, and quietly slipped them into his waistband. His crime, however did not go unnoticed, and he was apprehended shortly afterward by security guards.
While the theft of the videotapes is defined as a misdemeanor petty theft, it is also labeled a wobbler, which gives the prosecutor the discretion to charge the offense as a felony. Unfortunately for Andrade, the prosecution used that discretion. He was fond guilty, and with two prior strikes on his record, unlucky Andrade was sentenced to 50 years to life.
As a practicing criminal defense attorney for seven years, Ive had to explain to distraught clients this disproportionate sentencing scheme: how a minor misdemeanor charge could, in fact, transform into a felony and result in a permanent strike, and if there are any prior felony convictions bring an even more severe penalty.
While the decision as how to prosecute a wobbler is at the discretion of the prosecutor, the trial court, at the times of sentencing, has the authority to reduce a felony charge to a misdemeanor. Under the states three-strikes law, any felony can constitute a third strike and thus may subject a defendant to a term of 25 years to life in prison. After a second felony conviction, and offenders sentence is double what a single felony conviction would demand. Three-strikes is applied after the third conviction, with an uncommonly severe penalty of 25 years to life.
While the cost to an individual defendant is great, this practice of getting tough on crime also places a great burden on the state.
One year of jail for each criminal costs the state $33,152. If you jail an individual for life, the costs reach upward of $1 million dollars per inmate.
As the state Legislature and Gov. Arnold Schwarzenegger work to hammer out a budget agreement that would enable the state to climb out of its current fiscal crisis, now is the correct time to look seriously at cutting wasteful government spending in corrections.
The state allots $5.3 billion a year to the Department of Corrections, or 6 percent of the states budget. But even this is not enough. The Corrections Department consistently runs a deficit and this year alone ran $330 million over budget. Eliminating unduly prohibitive sentencing not only would be a way to stop the questionable practice of saddling petty criminals with life sentences but also would help the state save money.
For the second time in two years, state Sen. Byron Sher, D-Standord, proposed eliminating the prosecutions discretion to treat petty offenses as felonies and strike offenses.
This proposal would save the state $30 million a year. While a $30 million savings is perhaps but a small dent in working toward a balanced budget, it is a move in the right direction.
Besides the added expenditure this overzealous form of prosecution and incarceration is causing the inevitable overpopulation pressure on our overburdened Corrections Department. The states prison population has been increasing steadily over the past five years.
Currently, 162,307 people are incarcerated, compared to 120,000 in 1999.
A Recent study by the Sentencing Project, a prison advocacy group, found the increase was not caused by a growth in crime, which fell 35 percent from 1992 to 2002. It was, instead, a direct result of the more punitive laws adopted by Congress and state legislatures as a part of the movement to get tough on crime.
A November 2003 report on the three-strikes law found that, while 35 percent of second-and third-strikers were serving time for crimes against people, 65 percent were imprisoned for nonviolent property and drug crimes.
Overall, 57.5 percent of the states three-strikes cases involved a nonviolent offense as the third strike, according to a report from the Sentencing Project. The report also found that 20 percent of inmates in the state are serving life sentences.
Jailing petty offenders for life also means that the state institutions will be saddled with an ageing prison population. By 2026, 30,000 three-strikes prisoners will be serving sentences of 25 years to life, according to a projections by the Sentencing Project. And with the average third-striker 36.1 years old, state prisons are going to have to learn how to cope with issues involving the care of elderly inmates.
The states beleaguered prisons are not equipped to handle this type of volume. Most correctional institutions in the state are forced to triple-bunk inmates in small cells. In addition, the correctional guards are demanding an 11.3 percent pay raise, $200 million, for the additional work involved in monitoring and securing overcapacity institutions. With prison costs skyrocketing, locking up petty thieves for life only serves to exacerbate these institutional problems.
Shers proposal to eliminate state prison as a sentencing option for those people convicted of PC Section 666, petty theft with a prior, was originally tacked onto the budget after the budgets revision in May, it did not make it out of committee. This was not Shers first attempt to pass such a proposal; he introduced it in the previous legislative session. Ultimately, the proposal died on the Senate floor.
It is time for the Legislature to revamp the three-strikes law to ensure that injustices like Andrades dont continue. At a time when the states finances are stretched thin and the Department of Corrections spending is out of control, this would be badly chosen policy. While those convicted may be petty thieves, can we really afford to fill up our overburdened prisons with petty offenders?
Sentences such as 25 years to life should be reserved for habitual violent criminals, not videotape thieves.
Claudia Rosenbaum is an associate with Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense. Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.
<h2>Background on Weapons Rights</h2>
<p>The issue of weapons rights is one of the most controversial debates in the United States. The central point of contention behind the debate is the interpretation of the Second Amendment of the United States Constitution: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The Amendment originally referred to the right of organized militia to possess firearms; while gun control advocates, today, endorse this original intention, gun rights groups, particularly those led by the National Rifle Association believe that such rights enshrined in the Amendment are inherently granted to all law-abiding citizens. As a result, weapons possession rights have become a matter of federal, state, and local legislation. To complicate matters further, there is little uniformity among states regarding weapons possession laws, particularly as it applies to the primary regulatory issues of weapon type, and the age and criminal record of those in possession of weapons.</p>
<h2>Federal Gun Control Legislation</h2>
<p>Among US historys most glamorized outlaws are the 1930s gangsters of Bonnie and Clyde, John Dillinger, etc., whose crimes led the federal government to expand <strong>gun control measures to the federal level</strong>. Since then, Congress began passing initiatives regulating the sale of fully automatic firearms like machine guns, mandating that gun sellers be licensed, and prohibiting persons convicted of violent felonies from purchasing guns. With the assassinations of President John F. Kennedy, Martin Luther King, and Bobby Kennedy in the 1960s Congress enacted the Gun Control Act of 1968 which regulated imported guns, expanded gun?dealer licensing requirements, and expanded the list of persons not eligible to purchase guns to include persons convicted of any non?business related felony, minors, or persons found to be mentally incompetent, and users of illegal drugs. In 1990, legislation was passed which banned the manufacturing and importation of semi?automatic assault weapons. In 1994, the Clinton Administration imposed the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103?322) also known as the 1994 <strong>Assault Weapons Ban</strong>, which prohibited 19 different types of military assault weapons; although this ban expired in September 2004, some states, including California and New York, have instituted similar provisions to maintain proscription of assault weapons.</p>
<h2>State Legislation on Possession of Weapons</h2>
<p>Each state defines specific regulations for the sale and possession of weapons, including those specific to concealed and assault weapons, the background and criminal history of the owner, as well as licensing and purchasing requirements. Generally, about seven states prohibit concealed weapons; in over half the states, all non-felons are able to obtain licenses to carry concealed weapons. Only one state, Vermont, has no licensing or permit requirement. Currently, twenty-one states either prohibit or substantially regulate this secondary market for minors; more than twenty states regulate all secondary sales through registration or licensing requirements. Because minors and criminals can easily obtain weapons through the secondary market in those states that do not have such regulationa phenomenon known as the “gun show” loophole many states, including California, New Jersey, Hawaii, Connecticut and Maryland have enacted bans on certain types of automatic weapons. Four statesSouth Carolina, Virginia, Maryland, and Californiahave laws that limit legal purchases of handguns to one a month per buyer. (David L. Raybin, Stick to Your Guns: Restoration of Tennessee Firearms Rights, Tennessee Bar Association Quarterly, March 2003).</p>
<p>California law, in particular, restricts the sale of all semiautomatic assault weapons that have specific military features such as pistol grips and folding stocks as well as a list of assault weapons and their copies such as the AK47 and Uzi. People who owned such assault weapons prior to the law are required to register the weapons and may not sell or give them to anyone else in the state. State law also restricts the sale of rapid-fire ammunition magazines in excess of 10 rounds. A minor may not possess a handgun, except with written permission or under the supervision of a parent or guardian. Furthermore, it is a misdemeanor to manufacture or cause to be manufactured, import into California for sale, keep for sale, offer or expose for sale, give, or lend any “unsafe handgun. (California Penal Code Section 12020).</p>
<h2>Prior Criminal Record and Weapons Rights</h2>
<h2>Federal Legislation</h2>
<p>Where a person is under indictment for a felony ? even before they are convicted ? it is unlawful to acquire firearms. (18 U.S.C. 922(n)). Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally, it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms (18 U.S.C. 922 (g)(9)). Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended (18 U.S.C. 922(g)(1)).</p>
<h2>State Legislation</h2>
<p>California prohibits anyone convicted of a felony, or who is a drug addict, present or former mental patient, ever committed for mental observation, or acquitted by reason of insanity to own or possess any firearm. People with certain misdemeanor convictions involving force or violence may not possess or own any firearm within 10 years of the conviction. A person who has been adjudicated as a juvenile offender or delinquent for any offense, which would be classified as a felony or misdemeanor involving force or violence if committed by an adult, may not own or possess any firearm until age 30.</p>
<h2>Restoration of Civil Rights</h2>
<p>While federal legislation and legislation in many states prohibits anyone convicted of a felony from possessing a firearm, a restoration of civil rights, or an expungement or pardon of a convictionas a matter of State lawmay allow a felon to regain weapons possession rights (18 U.S.C. 921(a)(20)). Generally, a state restoration of rights may still impose restrictions on possessing certain types of weapons or may even retain federal mandates notwithstanding a state restoration or rights. In California, if a felon meets proper requirements, he or she may apply for the Certificate of Rehabilitation and Pardon or the Direct Application for Pardon, the latter made directly to the Governor. Under California Penal Code Section 12021, the person granted a full and unconditional pardon by the governor may lawfully own and possess any type of weapon that may be lawfully owned and possessed by other citizens in California.</p>
<h2>Defending Your Rights and Possession of Weapons</h2>
<p>Federal, state and local legislation governing various regulatory weapons issues consistently undergo significant changes. Particularly important is reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon US citizen as well as a person with a criminal conviction. Clearly, the right to own and possess weapons that is embedded in the Second Amendment is susceptible to narrow interpretation, thereby increasing the importance of other forms of relief in order to retain fundamental weapons possession rights. A person with a criminal conviction may very well restore these rights by obtaining a Certificate or a Direct Pardon by the governor of the jurisdiction. Additionally, if a person is found with an <a title=”unlawful possession of weapons” href=”http://www.criminalattorney.com/pages/crimes/illegal_possession.htm” target=”_self”>unlawful possession of weapons</a>, it is possible that the situation and method in which the evidence was procured is illegal; in order to protect oneself from the serious penalties that include lengthy prison or jail time and fines, an understanding of federal and state search and seizure laws becomes particularly imperative.</p>
<p>Due to the constantly evolving laws, maintaining weapons possession rights now requires a thorough understanding of both fundamental Constitutional protections and civil forms of relief. Thus, while the likes of Billy the Kid and Elliot Ness have fashioned the glorification and desensitization of weapons in nearly all aspects of popular culture, the reality of possessing weapons is the possibility of facing severe penalties for illegal usage and the necessity for understanding all legal protections to prevent unwarranted convictions.</p>