Category : Firm Articles

D.A. Alters His 3-Strikes Stance

Los Angeles County District Attorney Steve Cooley joins fight to liberalize California’s law, the toughest in the country.

By Bill Ainsworth Copley News Service

SACRAMENTO — In 2004, Los Angeles County District Attorney Steve Cooley was part of a powerful coalition that helped defeat Proposition 66, a measure that would have relaxed the state’s three-strikes sentencing law.

D.A. Cooley Leads Fight to Change California’s Three-Strikes Law

Now Cooley’s back in the middle of the fight. But this time, the Republican prosecutor has broken with his colleagues by leading an effort to liberalize California’s three-strikes law, the nation’s toughest.

Cooley has joined Brian Dunn, an attorney from the late Johnnie Cochran’s law firm, to promote a measure for the November ballot.

The Three-Strikes Law

The three-strikes law, approved in 1994 by voters and the Legislature, doubles the sentence for a defendant convicted of any second felony if the first strike was classified as a “violent” or “serious” crime. A person with two felonies for such crimes faces a sentence of 25 years to life for any third felony.

Since a third strike doesn’t have to be for a violent or serious crime, some criminals have received a sentence of 25 years to life for committing petty theft.

The latest proposal to change the law is more modest than Proposition 66, but is certain to trigger a similar, high-pitched political battle. It would require a third strike to be a violent or serious felony.

But that requirement would not apply to a defendant who had a previous conviction for murder, rape, child molestation or any felony punishable by life imprisonment.

Cooley’s new role has surprised leaders on both sides of the debate.

Going Against Tradition

He’s violating an unwritten rule of California politics, which dictates that elected officials — especially those in law enforcement — avoid any stance that an opponent could possibly label soft on crime. “I’m shocked he would team up with a member of a firm that is so pro-prisoners’ rights,” said Harriet Salarno, president of Crime Victims United of California, which played a key role in passing the law.

Dunn, a criminal defense attorney, said he was stunned when Cooley agreed to join his effort.

“I didn’t believe my ears. I said, ‘What’s the catch?’ ” Dunn said. “Then I realized this is an issue he cares about.”

So far, Cooley stands alone among prosecutors.

Directors of the California District Attorneys Association voted unanimously to oppose the measure at their meeting last month. “Three strikes is working the way it is,” said San Diego County District Attorney Bonnie Dumanis.

The association, Dumanis said, found in a study that third-strikers whose latest crime was neither violent nor serious frequently had an extensive criminal history that justified their long sentences.

“The DAs are using the law effectively and appropriately,” she said. Dave LaBahn, executive director of the California District Attorneys Association, said board members worried about a provision that could allow thousands of third-strikers to be released.

Some prosecutors, LaBahn said, were “very disappointed” that Cooley would lead an effort to change the law.

But Cooley believes voters will support the initiative.

“This proposal is going against the grain of the majority of the rest of the elected DAs, but it’s not going against the grain of the majority of the public,” he said.

Still, the question remains. Why would Cooley, a former reserve Los Angeles police officer and career prosecutor, lead an effort that would take power away from prosecutors?

“He’s an old-fashioned prosecutor who believes the job of the prosecutor isn’t just to get the longest possible sentence, but to do justice,” said Cooley’s Sacramento representative, James Provenza.

Cooley said he wants to change the law to preserve it.

“I think we’re saving the three-strikes law,” he said.

The law, Cooley contends, has barely survived challenges.

Surviving Challenges

In 2003, the U.S. Supreme Court upheld the law against a claim that it was “cruel and unusual” punishment to give a 25-years-to-life sentence to someone convicted of stealing golf clubs. But it was a 5-4 decision from a largely conservative court, Cooley said.

In 2004, polls showed that Proposition 66 had strong public support until a last-minute blitz by Gov. Arnold Schwarzenegger, then at the peak of his popularity, helped turn the tide. The measure lost, 47 percent to 53 percent. “We only defeated it because we had a popular governor who worked his tail off,” Cooley said.

Last year, Cooley said, an early proposal by Dunn would have also put three strikes at risk by making sweeping changes. Cooley said his proposal would ensure proportionality in sentencing and eliminate the high-profile cases cited by critics who want to eviscerate three strikes. Some third-strike prisoners are serving 25-years-to-life terms for property crimes, including stealing videos and a computer printer. In such cases, these criminals serve longer than a prisoner convicted of second-degree murder, which carries a 15-years-to-life sentence. Critics have long complained that prosecutors vary so widely in their application of three strikes that it creates an unfair system of justice. They also say the measure is costly: the Legislative Analyst’s Office estimates that it adds $500 million a year to the state budget. Before it was passed, prosecutors were among the leading critics of three strikes, supporting an alternative version. Yet after it passed, prosecutors have become its most vocal supporters.

Garcetti was Critic, Turned Defender of the Bill

Former Los Angeles County District Attorney Gil Garcetti illustrates the change. A critic during the bill’s trip through the Legislature, Garcetti became a zealous defender.

Cooley developed his views while serving as one of Garcetti’s head deputies. During Cooley’s tenure heading the San Fernando branch office in the early 1990s, he evaluated about 160 three-strikes cases. His conclusion: In most cases, the nature of the latest offense should determine whether a repeat offender gets charged with a third strike. “There has to be a strong sense of proportionality in sentencing,” he said.

In 2000, Cooley defeated Garcetti and promised to use the law more sparingly. His policies form the basis for the new measure. The initiative would do nothing to change sentences for second-strikers, but would allow some third-strikers to ask the court to change their sentence.

Statistics of Third-Strike Offenders

Currently, 7,813 third-strikers are serving 25-years-to-life sentences in state prisons, including 2,399 whose latest felony was a property crime, and 1,292 whose latest conviction was a drug crime, according to the California Department of Corrections and Rehabilitation.

Cooley estimates that about 2,400 third-strikers could ask to have their sentences reduced under his initiative.

Besides support from Cooley, the measure’s proponents need something else: about $1 million. To qualify for the November ballot, they will have to gather about 373,000 valid signatures in about six weeks.

Dunn said backers will have the money to pay for signature gatherers. Dunn said he admired Cooley for risking the wrath of his colleagues. “Steve has shown a lot of courage,” Dunn said.

Sentencing Laws

In January 2007, the United States Supreme Court struck down a California sentencing law that allow judgesrather than juriesto impose longer prison terms based on aggravating circumstances. The ruling, which said that the law violates the Sixth Amendment right to a jury trial, marked the most recent in a series of similar rulings since 2000 and has far reaching implications for state and federal governments as well as for those who have been convicted and/or accused of a crime.

The attorneys of Imhoff & Associates know the law and are committed to safeguarding the constitutional rights of those who have been charged with a crime. If youre facing criminal charges or have been convicted of a crime and feel your rights were violated, please contact us today for a FREE case evaluation with a respected and proven criminal defense attorney.

Cunningham v. California

The Supreme Court ruling was based on a case involving a police officer convicted in 2003 of molesting his young son. California sentencing laws dictate that individuals convicted of sexually abusing a child under the age of 14 automatically receive a prison term of six, 12, or 16 yearsdepending on aggravating facts or circumstances. The judge who ruled in the original criminal case found five aggravating circumstances and consequently sentenced the man to the maximum 16 years.

Right to a Jury Trial

The Sixth Amendment guarantees U.S. citizens the right to a trial by jury, and it is the jury, not the judge, who must determine whether or not to increase penalties based on aggravating facts. Further, juries must carefully weigh those facts to determine whether or not they meet the reasonable doubt standard.

According to the Supreme Court decision, it is not within a judges power to impose stricter sentences based on aggravating circumstances that have not been found by a jury and have not been proven beyond a reasonable doubt.

Legal Help

If you’ve been charged with a crime, the attorneys and legal staff at Imhoff & Associates can help. We can evaluate your case, develop a defense strategy, and work vigorously to ensure that you dont face excessively harsh or undue punishment.

Please contact us today for a no-cost consultation with an aggressive criminal defense attorney who can ensure that your legal rights are protected and help you plan a course of action.

Securities Fraud Lessons From Enron

Edward Martinovich, Attorney at Law and Jay Mykytiuk, Attorney at Law

The collapse of Enron and the federal indictments of many of its executives and directors threw a spotlight on the murky world of securities regulations. Enron wasnt the biggest financial collapse of the decade, but it was arguably the most profound, touching off a criminal investigation that so far has resulted in 16 guilty pleas, and several high-profile criminal trials.  Some of the crimes charged involved the illegal business practices that led to Enrons financial ruin.  But Enrons top executives face criminal charges based, not on what they did to cause the companys collapse, but what they allegedly did with the knowledge that the company was collapsing.

The Case Against Enron

The criminal charges against Enron executives are numerous, but the majority of them fall under the general umbrella of securities fraud. Securities fraud is an intentional misrepresentation made to investors that financially benefits the perpetrator.  The Securities and Exchange Commission (SEC) is the agency charged with overseeing trade of stocks, bonds and other investments that change value with the stock market’s movements.  Formed after the 1929 stock market crash to serve as a corporate watchdog, the SEC is responsible for prosecuting fraud and insider trading, as well as ensuring the accuracy of corporate financial disclosures.  Most securities fraud prosecutions begin with an SEC investigation and a referral to the Department of Justice.

Amidst all of the various criminal charges and convictions that resulted from the Enron scandal, Enrons top two executives, Ken Lay and Jeffrey Skilling, both former CEOs, emerged as the poster boys for corporate malfeasance.  Both Lay and Skilling are charged with two kinds of securities fraud.  First, a corporation and its executives can commit securities fraud when they intentionally mislead the public, usually by failing to disclose information about the health of the corporation, or by deliberately misrepresenting its financial health.  Second, those who have this information, fail to divulge it to the public, and then trade securities based on the knowledge, are guilty of insider trading.  But the prosecutions of Lay and Skilling have demonstrated that securities fraud cases are often based on circumstantial evidence and therefore, can be difficult to prove.

Omissions and Misrepresentations

Material omissions and misrepresentations are the subject of most securities fraud prosecutions.  Every public company is required by securities regulations to maintain detailed financial records and to regularly report this information to the Securities and Exchange Commission (SEC). If these records are found to be false, this constitutes criminal securities fraud.  In essence, the Enron defendants were charged with having knowledge that the financial health of Enron was failing rapidly, but making both public statements and filing financial disclosure forms that indicated just the opposite.

Insider Trading

The second form of criminal securities fraud that Enron executives are charged with is known as insider trading.  The most common variety of securities fraud, insider trading involves buying or selling securities based on knowledge that is not available to the general public.  Whether you are a corporate insider or a private investor, any person who trades on non-public information is subject to insider trading criminal prosecution.  In the three year period leading up to Enrons collapse, 28 Enron executives sold 21 million shares of Enron stock.  Both Lay and Skilling are amongst that number.

Defenses

There are several defenses to criminal securities fraud, and the cases against Lay and Skilling are far from open and shut.  In order to convict a defendant of criminal securities fraud, the government must prove that the defendant acted with fraudulent intent.  This means that the defendant intentionally committed the acts, or made the statements or omissions that led to violation of the law.  Innocent mistake, negligence, or other innocent conduct, are viable defenses for criminal securities fraud defendants.  Given the complex nature of the securities statutes, it is not a logical leap of faith to believe that they can be inadvertently violated.  Both Lay and Skilling used versions of this defense at trial.  Specifically, Lay argued that he had no knowledge of the true financial situation of Enron.  He trusted his underlings to run the company, and this trust turned out to be misplaced.  If true, Lays actions may certainly constitute negligence, but would not rise to the level of criminal fraud.

Proving insider trading can be equally as difficult.  The law is not absolutely clear about the discretion of executives and directors in determining whether certain information is “material,” or relevant, to investors.  It is actually a fairly common practice for executives to sell stock in advance of bad news.  It happens at scores of blue-chip companies, none of which are currently facing criminal investigations.

The case against Skilling is that he was part of an effort to illegally deceive investors, and that he pocketed millions of dollars in stock-option gains while in possession of troubling, non-public information.  But the problem with the governments case is that Skilling held on to a large percentage of his stock. In the two year period prior to his departure from Enron, Skilling always owned more than one million shares. Throughout that period, he exercised options and sold shares at about the same rate he acquired new ones.  In addition, more than a year before the company went bankrupt, Skilling executed an automatic stock-sale plan, instructing his broker to sell 10,000 shares a week. Under Securities & Exchange Commission rules, this type of program serves as a defense against insider-trading charges for sales executed after it began.

Penalties

Penalties for securities fraud and insider trading can be harsh.  Securities fraud convictions carry a maximum fine of $5,000,000 and a maximum sentence of twenty years imprisonment for each count.  Those convicted of insider trading may face up to a $1,100,000 fine and up to ten years imprisonment.  If convicted on all criminal counts, Lay and Skilling could spend the rest of their lives in prison.

No matter how the Lay/Skilling trial turns out, the lessons of Enron have already been written.  For corporate insiders and even casual investors, one of those lessons is that securities laws have teeth.  Prosecuting securities fraud is a government priority and in this new climate, poor business performance may often trigger SEC investigations.  Anything less than full disclosure of financial information will likely result in criminal charges, and fortuitously timed stock trades will raise red flags.  The lessons from Enron are numerous, and learning some of the important ones may keep you out of court.

How Are Foreign Felony Convictions Applied in Domestic Courts?

By: Collin McKibben, Attorney at Law & Helen Kim

Federal Interpretation

In 1825, the United States Supreme Court stated that courts of no country shall execute the penal laws of another. Today, this principle has been extended to penal judgments as well.  However, while the principle seems to mean that U.S. courts shall not directly enforce foreign penal laws or judgments, U.S. courts may choose to rely on foreign penal laws or judgments where applicable.

In Small v. United States, 544 U.S. 385 (2005), the Supreme Court evaluated the language of 18 U.S.C.S. 922(d)(1) which states: It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.  Specifically, the Court evaluated whether the statutory reference convicted in any court included a conviction entered in a foreign court.  The Court looked to the commonsense notion that Congress generally legislates with domestic concerns in mind,  Id., at 388, and the Supreme Court adopted a presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application.  Id. Although Small did not involve an extraterritorial application of U.S. law, the Court used a similar assumption to evaluate the scope of the statutory reference, convicted in any court.  The Court noted that foreign penal convictions differed from domestic penal convictions in many ways, thereby creating an inconsistency in the American notion of fairness.  Id., at 389.   Hence, the Court held that the phrase convicted in any court referred only to domestic courts and not to foreign courts.  Id., at 394.

California Interpretation

Under California Penal Code Section 12021(a)(1), Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country who owns, purchases, receives or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.  There are exceptions to the rule: a convicted felon who is currently a peace officer may be permitted to carry firearms, or exigent circumstances may allow a convicted felon to temporarily possess firearms.  The question arises when an individual has a conviction entered in a foreign court.  In some instances, an offense would be considered a felony in a foreign jurisdiction, while the same offense would be considered a misdemeanor in California.  Thus, an individual who was convicted of a felony in a foreign jurisdiction would be unable to carry firearms in California, even though the same offense is considered a misdemeanor in California.

For instance, in People v. Shear, 71 Cal.App.4th 278 (1999), the defendant challenged the trial courts conviction of violating CPC 12021 (a)(1) because he was previously convicted of a felony in Arizona but the same act was not punishable as a felony in California.  The court in Shear determined that a conviction of a felony in a foreign jurisdiction was sufficient to satisfy the felony classification of CPC 12021 (a)(1) and thus the statute applied to any person convicted of a felony under the laws of the United States, of the state of California, or any other state, government, or country.  Shear, 71 Cal.App.4th at 282.

The defendant also argued that his right to possess firearms was restored in Arizona and under the Full Faith and Credit Clause of the U.S. Const. Art. IV Section 1 California should honor Arizonas law and he should be able to carry firearms in California.  Shear, 71 Cal.App.4th 278.  In Sun Oil Co. v. Wortman, 486, U.S. 717, 722 (1988), the court stated that the Full Faith and Credit Clause did not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.  The court in Thurman v. Thomas, 27 Cal. 3d 285, 296 (1980), also stated that the classification of a foreign conviction was controlled by foreign law.  Similarly, the court in Shear determined that the Full Faith and Credit Clause did not preclude California from carrying out its public policy of prohibiting convicted felons carry firearms in its state because the defendant was able to possess firearms in another jurisdiction.

Prior convictions from foreign jurisdictions can also be used to enhance a defendants sentence if the prior conviction contains all of the elements of any serious felony under California law.  Fisher v. Jones, U.S. App. LEXIS 9727 (9th Cir. 1996).  Even a felony conviction for military offense satisfied the felony classification in CPC 12021 (a)(1).   United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993).

In Shear, Thurman, and Fisher, these cases all involved domestic laws.  Hence, although the cases involved conflicting interstate penal laws and judgments, the courts were not concerned with discrepancies that arose to varying notions of fairness.  However, in Small, the Supreme Court recognized that the discrepancies between domestic laws and foreign laws were significant enough so that it would be fundamentally unfair to apply foreign penal laws and judgments in U.S. courts.

Conclusion

Congress has stated that any provision in 18 U.S.C. 921 regarding firearms shall not occupy the field in which such provision operates to the exclusion of law of any State on the same subject matter, unless there is a direct and positive conflict between such provisions and the law of the State so that the two cannot be reconciled or consistently stand together.  Furthermore, the regulation of firearms by felons is within the historic police powers of the state and not pre-empted by federal law.  Helmer v. Miller, 19 Cal. App. 4th 1565 (1993).  Thus California courts have the authority to clarify the statutory language of convicted in any court in CPC 12021(a)(1) and determine whether it encompasses international felony convictions.  While California courts have accepted interstate felony convictions, they may rule differently on international felony convictions in accordance with public policy and the fundamental notion of fairness as perceived by the American people.

Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 Am. J. Comp. L. 559, 577 (2005).

What is a Citizens Arrest?

By: Collin McKibben, Attorney at Law & Ariella Rosenberg

Everyone is familiar with the term citizens arrest: we have seen it on TV, read about it in books, and even heard about it in social circles.  Surprisingly, however, almost nobody really understands what a citizens arrest is, or legally, what it represents.

A citizen’s arrest is an arrest performed by a civilian who lacks official government authority to make an arrest (as opposed to an officer of the law).  An arrest, as defined by Black’s Law Dictionary, is “The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime.” Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).

Although generally the person making a citizens arrest must be a citizen, in certain states, a citizens arrest can be carried out by a civilian who is not a citizen (for example, an alien or illegal immigrant).  A citizens arrest does not necessarily mean an arrest made by a single individual who happens to witness a crime.  For example, a department store may also carry out a citizens arrest in the course of apprehending a shoplifter.

Legal Requirements for Making a Citizens Arrest

The right to making a citizens arrest goes back to our roots in English common law.  Historically, before the modern infrastructure of police departments, citizen’s arrests were an important part of community law enforcement.  Today, citizens arrests are still legal in every state, although state laws pertaining to citizens arrests are not uniform.  In general, all states permit citizens arrests if a criminal felony (defined by the government as a serious crime, usually punishable by at least one year in prison) is witnessed by the citizen carrying out the arrest, or if a citizen is asked to help apprehend a suspect by the police.  Variations of state law arise in cases of misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party.

For example, California Penal Code mandates:
A private person may arrest another: 1. For a public offense committed or attempted in his presence.  2. When the person arrested has committed a felony, although not in his presence.  3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (C.P.C. 837).

In contrast, New York State Consolidated Laws hold that:
Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).

Unlike the California statute, which only permits citizens arrests in cases of felony, New York law extends the possibility for making a citizens arrest to any offense committed in [ones] presence.  Additionally, in cases where the citizen has not necessarily witnessed the crime being committed, California law allows citizens arrests when a citizen has reasonable cause for believing the person arrested to have committed [a felony], whereas New York law applies only to situations in which person has in fact committed a felony. Distinctions such as these are importantunwarranted citizens arrests can result in repercussions (such as law suits) for well-meaning citizens who attempt to make arrests without understanding local laws.  It is important to be familiar with the laws in your particular state should you want to carry out a citizens arrest, or should a citizen try to unlawfully detain you.

Anatomy of a Citizens Arrest

Once a person has committed an offense meriting a citizens arrest (under the applicable state law), the arresting party must follow certain guidelines to detain and deliver to authorities the suspect in question.  Acceptable guidelines for carrying out a citizens arrest also vary by state.  In general, the arresting party must notify the suspect as to why he or she is being arrested, and may enter the building or private residence where the suspect is residing, using a reasonable amount of force to apprehend the suspect.   In California, for example, To make an arrest, a private person, if the offense is a felonymay break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.  (C.P.C., 844).   In New York, A person may arrest another person for an offenseat any hour of any day or night.  2.  Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.  3.  In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.  (N.Y.C.L. 140.35).

Once the suspect has been taken into custody (by the citizen), it is the citizens responsibility to deliver the suspect to the proper authorities in a timely fashion.  In California, A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer.  (C.P.C. 847).  In New York, a citizen must also act without unnecessary delay to deliver a suspect to an officer of the law. (N.Y.C.L. 140).

Dangers of Making an Erroneous Citizens Arrest

Making a citizen’s arrest maliciously or with insufficient evidence of wrongdoing by the arrested individual can lead to civil or criminal penalties. Additionally, it is in violation of a suspects rights for a citizen making an arrest to use unnecessary force, to intentionally harm the suspect, to hold the suspect in unsafe conditions, or to delay in turning the suspect over to authorities.  A citizen making an arrest is acting in the place of an officer of the law, and as such, is required to uphold the same rights and civil liberties as an officer of the law must uphold. 

A citizen who violates a suspects rights, or who violates the applicable state law in detaining the suspect, (for example, arresting a suspect for a misdemeanor when the state statute requires a felony for a citizens arrest), risks being sued or even charged with a crime.  Additionally, if it is found that the arresting party did not meet the pertinent state requirements for a citizens arrest, any contraband found on the suspect will have been found illegally, and charges may be dropped entirely.

If you feel that you have been unfairly arrested by a citizen, or if you have been charged with illegally detaining a suspect during an illegitimate citizens arrest, it is important to seek the counsel of an experienced attorney.  A good attorney will demonstrate familiarity with state laws, and as such will help you to ensure the best possible outcome of your case.

Use of Lies to Obtain the Truth: The Police Can Lie to You

By: Colin McKibben, Attorney at Law

In his closing argument in State of California v. O.J. Simpson, Johnnie Cochran told the jury how they should view Detective Vannaters testimony: You cant trust him.  You cant believe anything he says because it goes to the core of this case.  When you are lying at the beginning, you will be lying at the end.  The book of Luke talks about thatif you are untruthful in small things, you should be disbelieved in big things. Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425 (1996).

Police Officers Only Required to Tell Truth in Court

Nevertheless, the United States Supreme Court has ruled that the Police can lie to you in order to extract a confession, Frazier v. Cupp, 394 U.S. 731, 739 (1969).  The only place an officer cannot lie is while testifying under oath in court, and criminal defense attorneys occasionally catch an officer lying, even on the witness stand.  Police are only required to advise you of your Constitutional rights under Miranda v. Arizona, 384 U.S. 436, if you are in custody and being interrogated about the offense for which you are being confined.  This point is usually determined to be the point in which the suspect is placed under arrest, or the suspect would reasonably conclude that he or she is under arrest and not free to leave.  Detectives are very good at creating the illusion that you are free to go, when actually, you are not.  For example, the detective may tell you that you are free to go at any time, but that it would benefit you to provide your side of the story as the evidence does not look to be in your favor, therefore you can be pursuaded into continuing the interrogation.

Lies To Obtain Evidence

During interrogations, police who use this tactic may lie about the facts of a case.  For example, where you have an 18 year old male who has a 15 year old girlfriend, the officer will tell him that they have evidence that he raped her, when in fact, they do not.  The 18 year old tells the officer that they had consensual sex and that there was no rape involved; now the officer has a confession as to Statutory Rape that came straight from the mouth of the suspect.  In trying to exonerate himself from the charge of Rape, the 18 year old legally confessed to the lesser crime of Statutory Rape.  In Frazier v. Cupp, 394 U.S. 731, 739 (1969), the officer was able to extract a confession from the criminal defendant by lying about the strength of the case.  During interrogation, the officer lied to the criminal defendant and told him that his cousin, had confessed to the possession of cocaine with intent to distribute, also implicating the criminal defendant in the crime.  The criminal defendant then also confessed to the crime in reliance of the officers false statement.  The Court determined that the criminal defendants confession was voluntary and the fact that he was given his Miranda rights prior to making the confession was relevant to a finding of waiver and voluntariness.  Id.

Evidence Can Be Fabricated to Obtain Information

Police officers are also allowed to fabricate evidence to support a deception.  In re D.A.S., 391 A.2d 255, (D.C. App. 1978) the police pretended to compare the defendants fingerprints to a fingerprint on the victims checkbook and pronounced them a match when in truth, no fingerprints were recovered from the checkbook.  The defendant confessed to the robbery and the Court held that the police deception did not by itself invalidate a voluntary confession.  Id. at 258.  Confessions are not invalid or inadmissible, even if they are obtained by deception or trickery, as long as the means employed are not calculated to produce an untrue statement.  Only if the deception, combined with other factors, coerces the suspect or defendant to confess, will the court deem the confession inadmissible.  Id., at 259.

Police May Leverage Victims to Obtain Confession

In order to extract confessions, police may also attempt to persuade the suspect or defendant that her conduct was less blameworthy than anticipated.  Deborah Young, Unnecessary Evil, 28 Conn. L. Rev. 425, 433 (1996).  Police may lie about the victim to diminish the suspects fear of confessing.  In People v. Jordan, 597 N.Y.2d 807 (N.Y. App. Div. 1993), the police told the defendant that he may be able to save the victim if he told the police exactly what happened.  The police falsely told the defendant that the victim had just received eighteen stitches for her knife wound and would soon be out of the hospital, when in actuality, the victim had died. The defendant confessed to stabbing the victim believing that he would be charged with assault and not murder. The court affirmed the murder conviction, holding that, “mere deception by the police is not alone sufficient to render a confession inadmissible unless accompanied by a promise or threat that could induce a false confession.” Id. at 808.

In Massiah v. United States, 377 U.S. 201 (1964), federal agents used an informant as a secret conspirator to listen in on the criminal defendants conversations.  He made incriminating statements to the informant, not knowing that the informant was secretly working with the federal agents.  At the time the statement was made, the criminal defendant was out on bail and had already secured an attorney.  The Court held that because the criminal defendant had secured an attorney and had already been indicted, federal agents could not attempt to elicit a confession without the presence of the criminal defendants retained counsel.  Id., at 204.

Why Are Police Tactics Permissible by the Court?

The Court is reluctant to bar such police tactics and confessions because of the assumption that an innocent person of normal intelligence will not admit to a crime she did not commit.  Patrick M. McMullen, Questioning the Questions: The Impermissibility of Police Deception in Interrogations of Juveniles, 99 Nw. U.L. Rev. 971, 974 (2005). However, the Court has recognized the inherently coercive nature of police interrogations, thereby mandating the police to provide Miranda warnings to suspects and defendants to lessen such coercion.  The intimidation is even greater on juveniles.  The power of police to deceive juvenile suspects during interrogations is significant since kids may be even more impressionable and confused. Juveniles are more likely than adults to defer to the wishes of adult authority figures and are more susceptible to suggestions of guilt.  Id., at 975.  Juveniles are more likely to believe things that adults, especially powerful authority figures, tell them.  Many kids are taught to trust police officers and to have faith in them as enforcers of law.  They are not raised to believe that officers will resort to deception in order to carry out the law.  Id., at 997.  Thus juveniles are easily pressured into admitting guilt or agreeing to false information.   Unfortunately, the interrogation room is one of the few places where the Court has been unwilling to protect juveniles from their own bad or premature decisions.  In Fare v. Michael C., 442 U.S. 707 (1979) the Supreme Court decided that juvenile confessions were to be assessed under the totality of circumstances standard and thus age was only one of many factors that come into play when assessing the admissibility of juvenile confessions.

Police deception may be helpful in eliciting confessions from guilty suspects.  However, such manipulation also extracts false confessions, especially from juveniles.  Placing false hope in young suspects by promises of leniency and misrepresentation of evidence are effective in inducing such false confessions.  Patrick M. McMullen, Questioning the Questions, 99 Nw. U.L. Rev. 971, 988 (2005).  The vast majority of evidence that prosecutors obtain against defendants comes straight from their own mouths because of the Police interrogation methods discussed.

How To Avoid Police Interrogation Tactics

For these reasons, it is best to obtain the services of a skilled criminal defense attorney before an opportunity for questioning arises, or any charges are filed.  After discussing with the client what is known about the scope of the investigation, the attorney should start by advising the detective that the defendant is represented by counsel, and not to talk to his client without that counsel present.  If you have no inkling that you might be investigated or charged with a crime prior to being contacted by law enforcement, it is very important that you consult an attorney before speaking to authorities.  While an officer may imply that failure to speak immediately will result in arrest, a person cannot be arrested for exercising the right to remain silent. Police can only arrest a person if probable cause exists, and the choice to remain silent cannot be part of that analysis. If the officers already have probable cause, they would not need to question you. If they do not, the statement you make could well supply it.

Does Victory for the Little Guys Equal Defeat for Justice?

By Vince Imhoff, Attorney at Law and Jay Mykytiuk, Attorney at Law

After voting to convict Martha Stewart on obstruction of justice charges, one juror told reporters that he believed the decision was a victory for the little guys.  In denying Stewarts subsequent request for a new trial, the court expressed doubt that the jurors statement revealed an agenda to punish the wealthy.  But was the judge too quick to dismiss the possibility that jurors convicted Stewart, a wealthy and successful CEO, at least partially on the basis of her wealth and success?  Might it be possible that in the seemingly endless wake of highly publicized corporate scandalsEnron, Worldcom, Adelphijurors have become predisposed to punish wealthy defendants, regardless of actual guilt?  To deny the possibility is to deny both human nature and a potential flaw in the American jury system.

Are Jury’s Truly Impartial?

The Sixth Amendment to the Constitution guarantees the accused in federal criminal trials a right to a speedy public trial in front of an impartial jury.  Contrary to common belief, however, this right does not include a trial by a jury of ones peers.  Historically, a defendants jury was composed of persons of his own social and economic class.  In pre-Revolution England for example, trials involving titled nobility took place in the House of Lords.  But consistent with American ideals of equality, our jury system operates as if we are all peers of one another, regardless of sex, race, religion, and wealth.  For wealthy white-collar defendants, the practical effect of this egalitarianism is to place their fates in the hands of 12 jurors with whom they may share little in the way of common experience.

Do Wealthy Defendants Have an Advantage at Trial?

The common presumption is that wealthy defendants, by virtue of their ability to hire the best legal counsel, have an advantage at trial.  While that argument may have some merit, wealth can be a double-edged sword.  Resentment against wealthy corporate defendantsespecially those accused of crimes that resulted in financial loss to regular peoplemay outweigh any advantage gained by their wealth.

Public sentiment surrounding a Topeka, Kansas case of alleged corporate malfeasance illustrates the bias that wealthy corporate defendants may face in the post-Enron-era, and the uphill battle they face in finding an impartial jury.  There, in what some called the Kansas-Enron, David Wittig was accused of looting a local utility.  A local citizen expressed her frustration that “people at the top” get away with stripping a company and leaving the “little people” to pay the price.  [Chicago Tribune, June 19, 2005] As a  Topeka defense attorney aptly pointed out:  “The tougher the economic times, the easier it is to dislike these guysYou put these guys making millions in front of a jury and the feeling becomes, Well, obviously they are not doing this legally.

Defense Attorneys for Wealthy Face Obstacles

This attitude is not isolated, and it indicates that attorneys of wealthy corporate defendants face an uphill battle at trial before the first piece of evidence is even presented.

Although the court has a duty to assure the accused a fair trial, the challenge falls to defense attorneys to identify potential jurors who are open to hearing the evidence and willing to hold the state to the burden of proving the case beyond a reasonable doubt. In cases where communities are saturated with pre-trial press coverage, the challenge is far more difficult.  By the time Enron corporate executives faced trial, given the extensive news coverage, and investigative reports in magazines, newspapers, and many different television networks, many potential jurors may have already decided the defendants were guilty.

Process of Removing Jurors During Selection Process

Voir Dire is the process of questioning potential jurors so that the attorneys for the State and the accused can challenge and remove jurors in the selection process. There is a risk, particularly in high profile cases, that jurors who have a particular agenda may shape their answers to avoid challenges for cause.  Even if potential jurors assure the judge and attorneys that they are not already biased against wealthy defendants, there is no guarantee of their honesty. There is always a risk that some potential jurors in high-profile cases have sufficient social motives, or even mere desire to seek attention to know what to say to pass muster.  Even social pressure in the selection process can stifle potential jurors from admitting their biases to the rest of the venire panelit is a common belief that many people hide secret judgmental beliefs, but few people will publicly admit to harboring such views.

Obtaining a Fair Jury

Defusing resentment against the a perception that a client is privileged or believed her wealth placed her above the law both in the media and before thejury is essential to obtaining a fair trial in corporate malfeasance trials. A skilled attorney learns to probe potential jurors for their willingness to set aside considerations of wealth and privilege, and to see the clients humanity. Such attorneys also encourage jurors to picture the charge as something that could happen to them. For example, focusing a jury in a tax-fraud trial on the fact that everyone finds tax forms ambiguous and confusing, can help them relate to questionable deductions they may also have claimed in the past. Strategies such as these are essential to offering a client perceived as wealthy or privileged to receive a fair trial.

Plea-bargaining and Guilty Pleas: A Curse or an Answer to a Defendants Prayer?

By: Vince Imhoff, Attorney at Law & Helen O. Kim

Plea-bargaining and guilty pleas are a critical element of the criminal legal system.  Plea-bargaining is a process in which a defendant negotiates the terms of punishment in exchange for a guilty plea or a no contest plea. Many times the prosecutor will offer to dismiss some criminal counts or reduce the maximum punishment. There are different reasons why defendants decide to plead guilty or plead no contest and avoid going to trial. Some of the reasons include lower sentencing, lack of evidence to support their case, less costly, and personal desire to confess guilt.  Whatever the reasons are, the practice of plea-bargaining is very common.  Ninety-four percent of felony convictions nationwide are obtained by guilty pleas.  Even convictions for more serious crimes are also commonly obtained by guilty pleas.  The criminal court system is dependant on the practice of plea-bargaining. Under the current structure of the criminal court system it would be impossible to try every case that is filed This raises fundamental concerns to ensure procedures that are necessary to make pleas sufficiently fair and accurate to justify dispensing with the trial process.

Is a Plea Agreement in Your Best Interest?

Unfortunately, while some defendants are making a wise choice to agree to a plea bargain to limit their punishment, many defendants decide to enter plea agreements out of frustration, delays, pressure and lack of faith in the trial system. Therefore, it is the duty of a defense lawyer to make certain that a plea agreement is truly in the best interests of a client and carries out the best wishes of a client.

Guilty Pleas in State Courts

Rule 11 of the Federal Rules of Criminal Procedure defines the basic shape of the guilty plea process in federal courts.  Although most guilty pleas take place in state courts, most states have similar rules to Rule 11.  The purpose of Rule 11 is to establish a predicate for valid pleas.  A guilty plea is valid if it is 1) voluntary 2) intelligent, and 3) has a factual basis.  When a defendant pleads guilty under Rule 11, the defendant gives up certain rights such as the right to a jury trial, the right to be represented by counsel, and any mandatory minimum penalty.  Sentencing is left to the judges discretion.  Furthermore, the defendant gives up the right to appeal or to attack the sentencing.  Guilty pleas are almost never challenged on direct appeals because guilty pleas are consensual.  For the same reason, defendants and their attorneys rarely object to errors in a guilty plea proceeding.  All jurisdictions require that claims or challenges to criminal proceedings be raised in a timely fashion.  If timely objections are not made, the claims are deemed procedurally defaulted and they cannot be raised later.  However, when the defendants object to errors in guilty plea proceedings, they almost always raise their claims on habeas corpus many years later.  Habeas corpus (you may have the body) is a writ requiring the production of the prisoner so that the judge may inquire into the fundamental justice of the detention.  Habeas corpus preserves individual liberty and vindicates the rule of law.  It has certain claims you can raise; one is why the defendant did not raise a certain issue until on appeal.  In this situation, the defendant must show 1) cause as to why the defendant did not raise the issue before the appeal and 2) prejudice the defendant experienced because of failure to raise the certain issue.  If the defendant wins the habeas corpus, a new trial is granted.

Guilty Plea to Avoid Death Penalty

In Brady v. United States, 397 U.S. 742 (1970), Brady sought relief under the habeas provision claiming his guilty plea was involuntarily given.  The petitioner claimed that his guilty plea was coerced by the threat of a death penalty, his counsel exerted impermissible pressure upon him, and his plea was induced by representations with respect to reduction of sentence and clemency.  The Supreme Court held that the petitioners plea was not extracted by any sort of threat or violence, or any improper influence, thus the defendants guilty plea was voluntary and valid.  The petitioner was competently counseled, properly advised, and informed of the plea bargain, and thus the Court found that the petitioner acted voluntarily and made an intelligent choice.  The Court noted that just because there are incentives within the criminal system to induce defendants to participate in plea-bargaining and guilty pleas, such incentives do not function as coercion or threats that result in involuntary pleas.  However, the Court is merely concerned with physical coercion and states that there was no physical harm or mental coercion overbearing the will of the petitioner.  Yet, in reality, it is very possible that an individuals will is overborne by the threat of a death penalty, making the plea involuntary.  An innocent defendant, in fear of the threat of a death penalty, may plea guilty to escape such a risk.

In North Carolina v. Alford, 400 U.S. 25 (1970), the defendant alleged that he pled guilty to second degree murder in order to avoid a possible death penalty although he was innocent of the charges.  The Supreme Court found that the defendant clearly expressed his desire to enter into a guilty plea despite his professed innocence.  The Supreme Court stated that the defendant voluntary pled guilty and the lower court did not coerce or force the defendant to plead guilty.  Rather, the Supreme Court stated that the defendant was not deprived of his free choice to evaluate the situation and determine for himself, whether to go to trial and risk the possibility of a death penalty or waive the trial and plead guilty.

However, in Henderson v. Morgan, 426 U.S. 637 (1976), the defendant pled guilty to a second-degree murder where the trial judge failed to describe the intent term of that crime.  The Supreme Court held that this error denied the defendant his due process rights, regardless of whether the state was able to prove that the killing was intentional, because the defendant did not waive his rights voluntarily.  The failure to inform the defendant of the terms of the crime rendered the defendants plea invalid because he was not informed of all the necessary facts.  Similarly, in United States v. Bushert, 997 F.2d 1434 (11th Cir. 1993), the Court of Appeals found that because the district court failed to specifically question the defendant concerning the waiver of sentence appeal provision, the defendant was not deemed to have knowingly and voluntarily made the waiver, and withdrew the provision from the defendants guilty plea.

Both the prosecution and defense are encouraged to participate in plea-bargaining and avoid going to trial for the interest of the overall justice system. A guilty plea may result in a lighter sentence and avoid costly litigation.  However, at the same time, a defendant waives many important rights when she chooses to plea guilty.  It is strongly encouraged that a defendant contemplating a guilty plea consults an attorney immediately

No Contest Plea

A no contest plea is a plea where the defendant does not admit that he/she committed the crime, but does concede that the government has evidence against her that could result in a guilty verdict. The court treats a no contest plea identically to a guilty plea in terms of finding the defendant guilty of the crime. In some jurisdictions a no contest plea may limit civil exposure to the defendant based on solely on the plea.

Health Care Fraud Through Identity Theft and Impersonation

By Brian Barrido, Attorney at Law and Jay Mykytiuk

Health care fraud is committed when someone intentionally submits, or causes someone else to submit, false or misleading information for use in determining the amount of health care benefits payable.  One of the most common varieties of health care fraud is perpetrated through medical identity theft.  Medical identity theft occurs when someone uses another person’s health insurance card or identification with or without her permission to obtain medical services.  An insured person commits fraud when he lends his health insurance card to another, who then impersonates the insured in order to receive free care.  An uninsured person commits fraud when she impersonates the insured to receive benefits she is not entitled to.  Sometimes the imposter has permission from the insured.  Other times, the imposter has stolen the insureds insurance information and used it without permission.  Each activity is a crime.

Consequences of Health Care Fraud

Health care fraud is not a victimless crime.  Medical identity theft can have dire consequences for the individual whose identity is fraudulently used.  It sometimes results in erroneous entries on that persons current medical records or the creation of brand new, fictitious medical records in the victims name.  For the victim, this may mean that a false medical and financial history that follows them around for years.  Imagine failing a physical required for employment due to a disease in your records that does not belong to you, or receiving a co-pay bill for a surgery that you never underwent.  These are only a sample of the personal consequences of medical identity theft.

Beyond the personal effects, health care fraud, including medical identity theft, also has a negative impact on the healthcare system as a whole.  It is estimated that losses due to fraud add $100 billion to the annual cost of health care in the United States. For most employers, fraud increases the cost of providing benefits to their employees and, therefore, their overall cost of doing business. That translates into higher premiums, taxes, and out-of-pocket expenses as well as reduced benefits and diminished quality of care.

Allowing Others To Use Your Health Care Information Could Lead to Prosecution

Whether you allow someone to use your health care information, or you wrongfully use some elses information, you can be prosecuted for fraud.  Health care providers and law enforcement have begun to aggressively pursue those who commit health care fraud. Health care fraud can be prosecuted both civilly and criminally under a variety of statutes and regulations.  The nations largest healthcare network, Blue Cross/Blue Shield estimates that they pursued more than 20,000 cases of health care fraud last year, with 606 cases referred to law enforcement agencies. Of the referrals, 206 resulted in criminal convictions (see http://www.bcbs.com/antifraud).

Too many people do not realize the cost to individuals and the health care industry, which are incurred through health care fraud. For this reason many people do not believe health care fraud to be a serious crime. Penalties for health care fraud can be severe.  Depending upon which statute an offender is prosecuted under, each count could carry a maximum penalty of 10 years.  Fraud resulting in bodily injury to the insured carries a penalty of up to 20 years.  If authorities or a private insurer wants to investigate you for health care fraud, you should immediately contact an attorney.

Breathtaking – Uncertainty and the Breathalyzer

By Vince Imhoff, Esq. & Dan Rhoads

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

Breathalyzer Less Accurate Than Blood Test

The Breathalyzer is less accurate than a blood test. Whereas a blood test actually measures blood alcohol concentration (BAC), the Breathalyzer merely estimates it. In recognition of this fact, South Dakota relies entirely on blood tests.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Causes of False Positive Breathalyzer Tests

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for twenty minutes before its administration. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

Breath Test Ruled Inadmissible in Court

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Non-alcoholic substances that people commonly ingest can register on the Breathalyzer. Smokers are often told to wait after consuming a cigarette because chemicals in the smoke can trick the machine. See, e.g., Ind. Admin. Code, tit. 260, r. 1.1-4-8 (providing that the subject of a Breathalyzer test must not smoke within 20 minutes prior to the time a breath sample is taken.) Some non-intoxicating, over-the-counter medications can do the same thing. Even various types of breads can account for BAC levels up to 0.05.

The Breathalyzer is also susceptible to error caused by environmental factors. If a driver has recently pumped gasoline, the alcohol in the fuel can remain on the drivers hands or clothes and can waft into the machine. Compounds that contain the methyl group structure appear in everyday chemicals, such as those found in paints, paint removers, and cleaners. Even electrical interference from cell phones and police radios can disturb the machine.

Women Face Higher Risk of False Positive Breath Tests

Women tend to be at a higher risk of registering a false positive than men. Some breath analysis machines presume a specified hematocrit, which is the percentage of whole blood that is composed of red blood cells. Men naturally have higher hematocrit values than women, but the machines do not adjust according to the sex of the subject. A person with lower hematocrit might have an artificially high BAC reading. Thus, women as a class are in jeopardy of this kind of error. (Hematocrit values can also fall due to blood loss; so, a person tested after being in an accident can register a false positive, adding insult to injury.)

Breathalyzers as Court Evidence

Portable Breathalyzers, which are utilized at traffic stops, are even less reliable than their stationary counterparts. In most jurisdictions, the results from a portable Breathalyzer machine merely provide probable cause to arrest drivers. These machines are susceptible to inaccuracy for reasons as simple as the administering officers improper calibration or carbon monoxide emissions from passing cars. But states are increasingly allowing those results to be used as evidence at trial.

Traditionally, defending a DUI case consisted of attacking the arresting officers probable cause, the officers training in recognizing intoxication, and the polices chain of custody for physical evidence. But as the state relies increasingly on technology to prove its cases, defense attorneys must stay a step ahead in their understanding of the equipment and its shortcomings.

Likewise, a criminal defendant should not concede the accuracy of a Breathalyzer but should hire an attorney who has the time and energy to ensure that dubious test results do not become evidence at trial.