Archive for the ‘Los Angeles Criminal attorney’ Category

Was 90 days a just punishment for Lindsay Lohan?

Friday, July 9th, 2010

On July 6, 2010, Judge Marsha Revel, a Beverly Hills judge, sentenced actress Lindsay Lohan to 90 days in jail for violating the terms of her probation. Ms. Lohan cried and begged Judge Revell for another chance to try to successfully complete her probation.

Ms. Lohan claimed that she did her best to comply with the terms and conditions of probation. But, Judge Revel cited a number of times in which the actress lied to the court and to authorities. Judge Revel sentenced Ms. Lohan to three 30-day sentences and also ordered her to spend 90 days in a locked-down drug rehabilitation facility. Should Judge Revel have given Ms. Lohan another chance or was the 90 days in jail and 90 days in a residential rehabilitation facility just punishment?

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The Supreme Court upholds gun rights

Tuesday, June 29th, 2010

The Supreme Court on Monday ruled that the Second Amendment’s guarantee of an individual’s right to bear arms applied to state and local laws.

The case, McDonald v. City of Chicago, involved Chicago’s longtime ban on handguns. Justice Samuel Alito, writing for the 5-to-4 majority, said the decision does not imperil every law regulating firearms, like those prohibiting gun possession by felons or bans on firearms in schools. But the court left unanswered just what other types of gun control laws — beyond an outright ban on handguns — might also violate the Second Amendment.

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS

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Ignition Interlock Bill Passes in California

Tuesday, June 29th, 2010

Guest Author Blog Article

Ignition interlock devices function similarly to breath analysis machines in that the driver must blow into a tube to have his or her breath alcohol content analyzed. If the driver’s reading is above legal limits, the car will simply lock up and the driver will be unable to turn it on.

California DUI defense attorneys have been waiting for the new, pilot Ignition Interlock Device (IID) law to take effect, requiring even first offenders to install an IID in four counties only.This pilot program goes from July 1, 2010, to January 1, 2016, in only the Counties of Alameda, Los Angeles, Sacramento, and Tulare.

It requires, as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for a violation of DUI offenses (California Vehicle Code Section 23152), a person to install for a specified period of time an ignition interlock device on all vehicles he or she owns or operates unless exempted (see attached DMV notices). The amount of time the ignition interlock device would be required to be installed would be based upon the number of convictions, as prescribed.

The statute specifies IID terms below in the target counties

(7) A person is required to install an ignition interlock device for the applicable term as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for a violation or a suspension of a person’s driver’s license, as follows:

(A) A person convicted of a violation of Section 23152 shall be required to install an ignition interlock device, as follows:
(i) Upon a first offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of five months.
(ii) Upon a second offense, the person shall install an ignition interlock device in  all vehicles owned or operated by that person for a mandatory term of 12 months.
(iii) Upon a third offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 24 months.
(iv) Upon a fourth offense or any subsequent violation, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 36 months.

(more…)

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United States Supreme Court Holds that You Must Speak Up If You Want to Remain Silent!

Tuesday, June 1st, 2010

The Supreme Court held, 5-4 (Kennedy for majority, Sotomayor for the
dissent) that a suspect being interrogated must “unambiguously invoke” the right to remain silent or the right to counsel” for questioning to stop.

Summary:       Silence during the interrogation does not invoke the right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously”, just as the right to counsel, see Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused’s intent. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.

By choosing to speak to the interrogators, a suspect is “waiving” the right to silence.  Once the government establishes Miranda warnings were given (and understood), an accused “uncoerced” statements establish an “implied” waiver of the right to remain silence.

The majority says, “Had he wanted to re-main silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

Dissent concludes: Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us.

BERGHUIS, WARDEN v. THOMPKINS

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Criminal Defense Attorneys must advise clients regarding possible deportation

Wednesday, March 31st, 2010

United States Supreme Court holds that Criminal Defense Attorneys must correctly advise their clients about the effect of a criminal conviction on deportation before pleading guilty.  Padilla v. Kentucky   http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drugdistribution charges in Kentucky. In postconviction proceedings, heclaims that his counsel not only failed to advise him of his consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counselwas constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. The Court held that changes to immigration law have dramatically raised thestakes of a noncitizen’s criminal conviction.

While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important.

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Los Angeles Physician Sentenced to Five Years in Prison for Assaulting Bicyclists

Saturday, January 9th, 2010

The case against Thompson, 60, has drawn close scrutiny from bicycle riders around the country, many of whom viewed the outcome as a test of the justice system’s commitment to protecting cyclists.

Millington said he did not take into account more than 270 e-mails and letters from cyclists that were filed with the court urging a tough sentence.

The July 4, 2008, crash also highlighted simmering tensions between cyclists and residents along Mandeville Canyon Road, the winding five-mile residential street where the crash took place.

One cyclist was flung face-first into the rear window of Thompson’s red Infiniti, breaking his front teeth and nose and cutting his face. The other cyclist slammed into the sidewalk and suffered a separated shoulder.

At his sentencing hearing at the county’s airport branch court, Thompson cited the Bible in urging cyclists and residents of Mandeville Canyon to try to resolve their differences peacefully.

(more…)

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Are prosecutors immune from lawsuits for fabricating evidence?

Thursday, November 5th, 2009

In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court’s decision will reveal the extent to which prosecutors are immune from liability for their pre-trial misconduct. This clarification may affect the way prosecutors try cases, and will, undoubtedly, influence the degree to which defendants can hold their prosecutors accountable for due process violations.

The Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.

Pottawattamie County, IA v. McGhee (08–1065) | LII / Legal Information Institute

Oral argument: Nov. 4, 2009

Question presented

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.

Issue

Can a prosecutor who knowingly procures false testimony and introduces such testimony at trial be subject to a §1983 civil suit?

Facts

In 1978, Petitioners Joseph Hrvol and David Richter obtained convictions and life sentences against Respondents Curtis McGhee and Terry Harrington for the murder of retired police captain John Schweer in Council Bluffs, Iowa the previous year. See McGhee v. Pottawattamie County, 547 F.3d 922, 925 (8th Cir. 2008). Although police attention initially focused on Charles Gates, a man identified by two witnesses as being near the scene with “a shotgun and a dog,” Hrvol and Richter soon turned their attention to McGhee and Harrington. See id. at 926. The foundation of their case against McGhee and Harrington was 16-year-old Kevin Hughes. See id. Hughes, who already had a lengthy criminal record, was facing charges for stealing a Cadillac and possible involvement in the Schweer murder. See id. Detectives offered not to charge Hughes for the murder and drop the laundry list of other criminal charges against him and held out the possibility of his recovering a $5,000 reward for information regarding the Schweer murder if he cooperated in the investigation. See id. at 927. Hughes agreed. See id. (more…)

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Was the Homicide of Michael Jackson, Murder or Manslaughter?

Tuesday, August 25th, 2009

The L.A. Coroner’s Office has classified the death of Michael Jackson as a Homicide.

The Associated Press reports that Los Angeles Chief Medical Examiner-Coroner, Dr. Lakshmanan Sathyavagiswaran’s initial autopsy findings show that Michael Jackson died from a high dosage of a powerful sedative. According to the reports, Jackson’s death was caused by lethal levels of propofol (Diprivan), a drug that depresses the central nervous system. Apparently, the cause of death may be due to the actions of a single night and/or a single doctor, or the grossly negligent treatment of several doctors over an extended period of time. The law defines homicide as the death of a human being and an unlawful act which was a cause of that death.

Should the death of Michael Jackson be classified as murder defined by California Penal code section 187 (the unlawful killing of a human being with malice aforethought) or manslaughter defined by California Penal Code section 192 (the unlawful killing of a human being without malice)?

The law defines two kinds of manslaughter, voluntary, upon a sudden quarrel or heat of passion and involuntary, in the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.

By: Fay Arfa, Los Angeles Criminal Defense Attorney

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California Court Upholds Ban on Assault Weapons:

Thursday, June 4th, 2009

The Second Amendment to the Constitution of the United States provides, “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 United States Supreme Court held, in District of Columbia v. Heller (2008) 554 U. S. [171 L.Ed.2d 637], that “the [District of Columbia's] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” (Id. at p. 683.)

In so holding, the Court explained that the Second Amendment codified a pre-existing right of the individual “to possess and carry weapons in case of confrontation.” (Id. at p. 657 ["The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed'"].)

However, the Heller Court pointed out that, like the First Amendment’s right to freedom of speech, the Second Amendment’s right to bear arms is not unlimited: “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” (Id. at p. 659.)

Recently, in People v. James (2009) ___ Cal.App.4th ___, the California Court of Appeal held that possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment to the federal Constitution as construed by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. [171 L.Ed.2d 657] (Heller).

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