Wednesday, November 30, 2011

Free Speech Protections and Their Limits

Since the recent raids on various "Occupy" protests around the country, there seems to be a lot of confusion regarding "free speech" rights and their limits.  Protesters have been demanding a platform to express their views on economic injustice.  Private property owners have complained about unauthorized usage of their open spaces.  The Los Angeles City Counsel has grappled with conflicting interests of fostering free expression vs. fostering the lawn around City Hall.  Meanwhile, the guy in the picture above apparently won some kind of medal, presumably for his bongo skills. 

All of these competing interests have led to the obvious question: where and how do the protections of the 1st Amendment come into play?  This post will attempt to shed some light onto that issue.  As always, the following post is intended as a very cursory outline of free speech rights and the limits of those rights.  This should not be read as an academic study of the legal issues involved and I would caution any lawyers and law students against citing to this article. 

We all know that the 1st Amendment to the US Constitution ensures that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  Since the passage of the 14th Amendment, these prohibitions have been extended to all levels of state and local government, not just Congress.

While the text of the 1st Amendment reads like a blanket prohibition against any type of restrictions on free expression, it has not been interpreted that way by the courts.  Obviously, some types of speech can be prohibited or limited.  Blasting a car horn in a residential neighborhood at midnight to protest against water rate hikes, burning crosses on people's lawns to intimidate them, making criminal threats and lying on your taxes, for example, are all prohibited forms of expressive conduct.

Other types of reprehensible speech are plainly protected.  Courts have upheld the right of the Ku Klux Klan to march through the predominantly Jewish community of Skokie, IL.  Individuals in the US are free to tattoo their own faces with swastikas (this would be illegal in most parts of Europe).  Profanity is also protected (except on broadcast TV and radio, but that's another issue).  In the famous case of Cohen v. CA (403 U.S. 15), the court upheld a man's right to wear a jacket with the words "Fuck the Draft" emblazoned across the back.  We're also free to lampoon our elected leaders and flip the middle finger to the police.

So where do we draw the line between protected and unprotected speech?  Put very generally, the validity of speech restrictions turns on whether, by prohibiting certain expressive conduct, the government is essentially trying to silence an idea or whether they are attempting to place reasonable restrictions on the time, place and manner of that speech.  The first step in any free speech analysis is to determine what exactly the government is trying to control: is it the idea itself or merely the manner in which the idea is being expressed?

When the government is attempting to silence an idea because the idea itself is inflammatory or offensive, any restrictions on that speech are going to be ruled unconstitutional almost every time.  No matter how ugly a particular idea might be, the Framers of the Constitution intended for the value of that idea to be judged by the People themselves rather than by the State.  That's why citizens are free to wave signs that say "God Hates Fags" and "Thank God for IEDs".  No matter how stupid you might look engaging in these activities, the State has no right to silence your message.

On the flip side, the government MAY take reasonable measures to regulate the time, place and manner of expressive conduct.  As mentioned above, you definitely have a right to protest against water rate hikes, but you may not do so by blasting your car horn at midnight in the middle of my neighborhood.  The city may require permits for parades and demonstrations as long as those permits are issued without regard to the message of the demonstration.  They might allow parades on certain streets at certain times of day and deny permission for parades on other streets in the middle of the night, as long as those rules are applied neutrally to everybody. 

This brings us to the "Occupy" protests.  Protesters have demanded the right to pitch tents overnight on public and private property while they raise awareness to economic disparities and various financial issues of public import.  Local governments have tried (with mixed success) to evict the protests by citing laws against urban camping.  Protesters have argued that their free speech rights are being trampled, and police have countered by arguing that tear gas burns like hell.

So who has the 1st Amendment on their side in the "Occupy" fight?  That depends on whether the government is (A) suppressing an idea, or (B) enforcing reasonable rules regarding the time, place and manner of expressive conduct.  In my eyes, the real question is whether or not the act of sleeping in a tent on a public sidewalk has expressive value in itself.  If so, what message is being expressed by sleeping in these camps?  If protesters were forbidden from sleeping in public, are other alternative channels available for protesters to express the same ideas?  I don't have the answers to these questions, but I would invite readers to share their opinions in the "comments" section, below.

Monday, November 21, 2011

How Does the Entrapment Defense Work?


Like Miranda Rights (below), entrapment seems to be one of those issues that is misunderstood more often than not. I think movies have given people a false understanding of how the defense actually applies. Here's my feeble attempt at bringing a little clarity to the subject.

Entrapment is a defense to criminal charges when police have essentially overcome your will and forced you to commit a crime that you wouldn't have otherwise committed, given the opportunity. A jury must decide whether or not they believe that you have been entrapped. Before a jury begins deliberating on your guilt or innocence, the judge will spend an hour or two reading instructions to the jurors in order to help guide their legal decision-making. The judge will explain the elements of the crime charged and the facts that the jury may take into consideration in making their findings. If entrapment is an issue, then the judge will read something like this:

"It is a defense to a criminal charge that the commission of the alleged criminal act was induced by the conduct of law enforcement agents or officers when the conduct would likely induce a normally law-abiding person to commit the crime. 

To establish this defense, the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers would likely induce a normally law-abiding person to commit the crime.

In deciding whether or not this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement.

Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the affect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission." (CALJIC 4.60 et seq.)

We've all seen stings on TV (maybe even in person) whereby the cops pose as drug dealers, prostitutes or underage victims (i.e. To Catch a Predator) and then wait for subjects to take the bait. When cops engage in these kinds of busts, they're (supposed to be) careful ONLY to present an opportunity for their marks to commit crimes, and NOT to encourage otherwise law-abiding citizens to commit crimes that they wouldn't have committed anyway if left to their own devices. 

Example 1: You're a drug addict, you approach an undercover cop at the park and you ask to buy heroin.  The next thing you know, you're under arrest. You have not been entrapped because the police didn't force you to anything that you didn't already want to do.

Example 2: You're a girl scout and an undercover cop offers you some heroin. You tell him that you don't use drugs, but he badgers you, threatens you, and tells you that heroin is legal to possess. You finally give him $20 to leave you alone and you're arrested. You have a good argument for entrapment based on these facts because it appears that police induced a normally law-abiding person to commit a crime that she would not have otherwise committed.

Example 3: You're drinking at a house party and police come to the door. They tell you that your car is illegally parked and that it will be towed unless it is moved. You move the car as instructed and you're arrested for DUI. This is a gray area, but a jury would probably find that you have NOT been entrapped here. The police did not force you to drive the car, they merely informed you that it would be towed unless it were moved. You could have found a sober driver or else agreed to have the car towed. 

A common myth that I've heard repeated on movies is the idea that undercover cops have to tell you that they're cops if you ask, otherwise their actions become entrapment. This is false. Think about how effective undercover operations would be if agents were required to tell subjects that they were cops. Don't expect an undercover cop to identify himself if asked.

The most famous case of entrapment involved John DeLorean (of time-traveling sports car fame). In 1982, Mr. DeLorean's auto business was in serious trouble. He was nearly broke and on the verge of financial ruin. A friend of his (acting as an FBI informant) proposed a deal whereby Mr. DeLorean would help smuggle a load of cocaine and launder the cash. After a series of threats against his family, Mr. DeLorean reluctantly agreed to participate in the plan. Of course, he was arrested and charged for several drug-related offenses. In 1984, a jury found him not guilty because he had been entrapped by the government. Agents had effectively overcome his will and forced him to break the law by threatening his family.

The moral of the story is that entrapment is a very difficult argument for a defendant to successfully make. When in doubt, don't break the law, but if you must, call us for a free attorney consultation.  (714) 449 3335. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer

Monday, November 14, 2011

Quick Overview of Miranda Rights

I decided to write the following post in response to a question that I hear almost day. It usually goes something like this: "I was arrested for DUI, but the cops never read me my rights. They have to dismiss the case, right?". I wish. My job would be so much easier if Miranda rights were as inviolable as everyone imagines (or as they're portrayed on cop shows).

Miranda rights, as we've all seen on movies, are intended to warn suspects in criminal cases that they have a right not to incriminate themselves when they are subjected to police interrogation. The right not to incriminate yourself includes the right to have an attorney present during questioning. That being said, Miranda rights apply ONLY in a very narrow set of circumstances: if you are in custody and being interrogated by police, you confess and the prosecutor wants to introduce your confession as evidence against you at trial, the DA must show that the confession was not tortured out of you. The way they do this is by showing that you had been advised of your Miranda rights, that you understood that you had a right NOT to confess, and that you knowingly, intelligently and voluntarily waived those rights.

When a suspect is in custody and he unequivocally states that he does not want to speak to the police, the interrogation must immediately stop (smart). After a short period of time, the police may ask the suspect whether or not he has changed his mind. 

If, instead of simply saying he doesn't want to talk, the suspect clearly demands to speak with an attorney (even smarter), the interrogation must immediately stop and the police MAY NOT attempt to re-interview the suspect without an attorney present.

Now that we all know when Miranda rights apply, let's talk about some common situations where they DON'T apply. Since they only come into the picture if you're IN CUSTODY, they do not apply if you're voluntarily answering questions at the police department and you're technically free to leave. This can be tricky because most people don't feel free to abruptly terminate an interview with the cops by walking out of the room. If you're not sure whether or not you're free to leave, try leaving.

Miranda rights also don't apply to "spontaneous statements". Spontaneous statements are things that you just blurt out when you're NOT being interrogated. If you start talking voluntarily or you shout out a confession while you're handcuffed in the back of a cop car, that statement will be read to the jury.  When in doubt, think of Dr. Evil and zip it.

The remedy for a violation of your Miranda rights is exclusion of the confession from evidence. Contrary to what most people want to believe, a violation of your Miranda rights does not automatically mean that the case against you must be dismissed. In a vast majority of criminal cases, the cops never bother to read Miranda rights because they don't need your confession to convict you. If you're caught driving while under the influence of alcohol, you're not going to be interrogated under a single light bulb in an otherwise-darkened room while investigators do the good cop / bad cop routine, like the scene in Menace 2 Society. No need for Miranda warnings in most DUI cases.

Long story short: don't ever say anything to the police that you wouldn't want printed in the New York Times or repeated to a jury. If you're arrested, don't try to explain yourself by telling the cops your side of the story. I guarantee that there's nothing you can say to get yourself into any less trouble than you're already in. The only thing you should ever tell the police is "I'm not answering any questions without John Bussman here", and leave it at that.

If you or a loved one has questions about Miranda rights, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

Friday, November 11, 2011

Turd Stew Update

Sorry I've been lagging a bit on this update.  I've been out of the office the past few days crusading for truth and justice.

This past Tuesday, plaintiffs published the text of the latest lawsuit challenging the Obama Administration's crackdown on California's Medical Marijuana Program.  As previously reported here, a coalition of medical marijuana growers, patients and collectives is seeking injunctive relief to block enforcement of federal marijuana laws as they relate to individuals who comply with California's voter-approved medical marijuana system.

Attorneys Matthew Kumin, David Michael and Alan Silber filed the case of Marin Alliance for Medical Marijuana v. Eric Holder, et al. in all 4 of California's federal judicial districts.  Read the 30-page motion in support of the preliminary injunction here.

A preliminary injunction is an order from a judge to stop doing something until the legal issues can be more definitively decided by a court.  In this case, the plaintiffs are asking a federal judge to order the DEA to cease raids against medical marijuana growers and collectives until the law can be more clearly settled.

As anticipated, plaintiffs are relying on at least 5 distinct arguments in support of their injunction: collateral estoppel, the 5th / 9th Amendments, the 10th Amendment, the 14th Amendment and the Commerce Clause of the US Constitution.

Bear with me as a try to break these arguments down --

Collateral estoppel is the idea that a party to a lawsuit shouldn't be allowed to change his or her mind to the detriment of someone else.  Once you've staked out a position on an issue in a case, you can't shift your position if by doing so you screw over the other party.  Once you have argued position X and other parties act in reliance on your position, you are "estopped" from later arguing position Y.

In the 2009 case of Santa Cruz v. Eric Holder, the Justice Department assured a federal judge that the DEA would not expend federal resources to prosecute medical marijuana providers who act in compliance with state law.  In reliance on that officially stated position, marijuana dispensaries proliferated across the Golden State.  Cooperatives invested time, money and resources to expand their operations under the faith that they would not be attacked by a flip-flopping DEA.  Without warning or explanation, the Justice Department abruptly shifted its position re: medical marijuana within the past couple months.  Long story short: dispensaries got shafted by acting in reliance on the officially stated position of the DEA's lawyers. 

The 5th / 9th Amendment arguments relate to the "fundamental rights" to ameliorate pain and to act upon a doctor's recommendation.  Among other rights enshrined in the 5th Amendment is the right to Due Process, which has been interpreted to ensure "fundamental rights".  Fundamental rights are those rights which aren't explicitly enumerated in the Constitution, but which the Framers must have assumed exist without needing to be specifically mentioned.  Fundamental rights include things like the right to raise your own children, the right to enter into contracts and the right to travel freely throughout the country.  The 9th Amendment ties in with the 5th Amendment because it states that citizens hold rights beyond those expressly enumerated in the Constitution. 

When the courts need to decide whether or not a right is "fundamental", they look at whether or not the right is "deeply rooted in the nation's history and tradition" and whether or not the asserted right is "implicit in the concept of ordered liberty".  Plaintiffs are now arguing that the right to take medicine and to act under a doctor's recommendation are "fundamental" and that they are implied under the 9th Amendment.  

The 14th Amendment assures, among other things, equal protection under the laws.  It prohibits arbitrary distinctions and capricious enforcement where those distinctions are not founded on some "rational basis".  The argument here is based on the fact that, among the 16 states that allow for the medical use of marijuana, California is seemingly being singled out for heavy-handed enforcement.  California's system is more stringent and less permissive than other states, where marijuana consumption is allowed at dispensaries (Oregon) and where for-profit sales of marijuana is permitted (Colorado), which creates the impression that the current crack-down is political in nature and not "rational".

The Commerce Clause and 10th Amendment arguments are outlined under "The Turd Stew Thickens", below.

This is certainly going to be an up-hill fight for the plaintiffs, but a preliminary injunction isn't out of the picture.  It's foreseeable that a progressive California Federal District Court could block enforcement until such time as the laws can be more clearly established.  The Commerce Clause arguments have been roundly rejected before, but the collateral estoppel angle is novel.  Stay tuned for updates as they become available.

Monday, November 7, 2011

The Turd Stew Thickens

A coalition of medical marijuana patients, collectives and their landlords announced a lawsuit this morning against Attorney General Eric Holder, the Department of Justice and the DEA, among other federal agencies.  The suit seeks to enjoin the feds from taking further legal action against medical marijuana growers and dispensaries who are in compliance with CA state law.  Challenges will be brought simultaneously in the Northern, Southern, Eastern and Western judicial districts of the state. 

Early reports suggest that the plaintiffs will rely on a novel variety of legal theories, including the 9th and 10th Amendments, collateral estoppel, equal protection and due process.  The cases are being coordinated by attorneys Matt Kumin, David Michael, and Alan Silber of the NORML legal committee.

The 9th Amendment to the US Constitution broadly states that the People carry rights beyond those specifically listed in the rest of the Bill of Rights.  Just become some rights are listed should not be construed to suggest that other rights DON'T exist, just because the Framers ran out of page space or didn't think to include them.  It's kind of a catch-all that the Founders threw in to make clear that the first 8 Amendments weren't intended to be an exhaustive list. 

Similarly, the 10th Amendment says that states have the power to do the stuff that isn't specifically included among the federal government's responsibilities.  While the Constitution includes a lot of things that the feds can / must do (raise an army, make immigration policies, tax / spend, conduct diplomacy, govern interstate commerce, etc.), everything else is generally left to the states.  Historically, medical laws, licensing and policing are the business of the individual states.  That's why a California Driver's License looks different than a Wyoming Driver's License and why Arizonan frat boys can buy 190-proof Everclear. 

Of course, federal laws trump California's state laws where they conflict, but ONLY if the feds actually have the constitutional authority to govern the thing they're trying to regulate.  In past challenges, the Supreme Court has ruled that the feds may overrule CA medical marijuana laws under their "interstate commerce" powers, even if the marijuana is grown, sold and consumed entirely within the Great State of California (Gonzales v. Raich 545 US 1).  As counter-intuitive as this sounds, the reasoning was based on the idea that production and consumption of marijuana ANYWHERE affects production and prices of marijuana EVERYWHERE.  If Californians are growing their own, then they're probably importing less from other states, which means Oregonians are growing less of their famous Oregon Big Bud.  Since laws that apply solely within CA may have ripple effects in other states, the feds have successfully argued that their interstate commerce powers grant them authority to reach into your nug jug. 

For more commentary on medical marijuana in California, see "CA's Backward-Ass Medical Marijuana Laws", below).  It remains the position of this blog that marijuana prohibition has been far more harmful than the drug itself.  Our federal government continues to waste billions of our tax dollars fighting an unwinnable war based on an ill-conceived, Puritanical, paternalistic ideology.  Despite President Obama's campaign promises not to expend federal resources fighting to keep seriously ill patients from obtaining their medicine, the administration continues to subvert the will of California voters. 

More details to follow once the text of the suit is released publicly. 

As always, please feel free to comment below, if it's just to tell me that you disagree. 

Friday, November 4, 2011

Killer Cops Appear for Routine Hearing

(Alleged) Killer Cops Manny Ramos and Jay Cicinelli appeared before Judge Erick L. Larsh this morning in Department C-55 of the Orange County Central Court in Santa Ana.  The matter came on for a routine pre-trial conference, at which the status of discovery was discussed and more hearings were scheduled. 

Several members of "Kelly's Army" began congregating in the hallway outside the courtroom by 8:15 AM.  Some held signs reading "J4K Justice for Kelly".  Ramos and Cicinelli walked into the courtroom at 9:00 AM, flanked by family, security and their defense team. Both were dressed in dark suits and sat quietly at the back of the room until their cases were called.  At one point, it appeared that Cicinelli made eye (singular) contact with Kelly's supporters. 

The case was set for a Pre-Preliminary Hearing (referred to by attorneys as a "Pre-Pre") on December 16.  The Pre-Pre is another brief appearance at which attorneys will meet to discuss their readiness to proceed to the Prelim stage and estimates re: how long the Prelim should take.  For more discussion of the Prelim and its significance, see "Killer Cops Due Back in Court", below. 

The defendants spoke little during the quick appearance, answering "Yes sir, your honor, I agree" when asked if they consented to the continuance. 

Ramos held his wife's hand as deputies escorted him from the building.  On the way out, he was seen joking and laughing with his family.  Apparently, something about the whole situation is hilarious to him.  Well, it's about to get a lot funnier.

Wednesday, November 2, 2011

Smoke & Mirrors in Long Beach: CA's Backward-Ass Medical MJ Laws

Long Beach is the latest California city to find itself embroiled the mess surrounding CA's inconsistent, arbitrary system of regulating (or, rather, failing to regulate?) collectives that provide medical marijuana to seriously sick patients.

In 1996, California voters overwhelmingly passed Prop. 215 (codified as section 11362.5 of the Health & Safety Code, known commonly as the "Compassionate Use Act", or the "CUA").  The CUA removed criminal penalties for qualified patients who use, possess and cultivate marijuana with a doctor's recommendation.  After a few years, the shortcomings of the CUA became apparent: while it legalized possession for qualified patients, sale or transfer of medical marijuana remained illegal, essentially leaving most patients with no way to access their medicine unless they grew it themselves.

In 2003, the state legislature enacted SB 420 (yes, it's seriously called "SB 420", commonly known as the "Medical Marijuana Program Act" or "MMPA").  The MMPA expanded upon the CUA to allow collectives and cooperatives to distribute medical marijuana to their members on a non-profit basis.  Keep in mind that marijuana "sales" are still illegal in CA, but that might be news to you if you've ever walked into a medical marijuana dispensary.  Dispensaries may provide Rx to their members, who pay a fixed price for a fixed quantity (i.e. $50 for 3.5 grams) as "compensation for services", or "reimbursements of costs", but don't call that a "sale".  Proceeds of these transactions may be used to pay salaries, rent, overhead, etc, but the dispensary may not "profit" thereby (???).  This system has created a multi-billion dollar legal gray area here in California, clogging the courts and saddling cities, tax-payers and dispensary operators with millions of dollars in legal bills and court costs.  Throw in conflicting federal laws and indecipherable zoning ordinances and you start to get the picture. 

Since the passage of of the MMPA, storefront dispensaries have sprouted like weeds (pun intended) across Southern California.  Individual cities have grappled with how to control the spread of these shops through various zoning ordinances and licensing schemes. The City of Brea has recently blown over $300,000.00 fighting to shut down 2 small dispensaries (as of the time of this writing, Brea Alternative Medicine and the Brea Patient Association are still open and operating).

The City of Long Beach is the latest municipality to find itself ensnared in the web that is California's screwy-ass medical marijuana system.  Like many other local cities, Long Beach had enacted a licensing system for its dispensaries, including restrictions on where / when the shops could operate and imposing a $15,000 application fee for new dispensaries.  When LB threatened to shut down a dispensary that had been operating without the proper licenses, two members sued the city, claiming that the licensing ordinance violated federal laws prohibiting possession and distribution of marijuana.  Since federal law trumps California law, an appellate court ruled that the city's system of licensing and regulating dispensaries was unenforceable.

The plaintiffs' successful lawsuit has had the unintended consequence of rendering ALL dispensaries in LB (arguably) illegal since the city's licensing scheme has been struck down.  It has also armed anti-pot crusaders with a new weapon to overturn dispensary licensing systems in other California cities.  Nick Schou of the OC Weekly calls the decision "a legal 'victory' most pot activists seem to wish had never happened".  The suit was opposed by groups like NORML, the ACLU, and Americans for Safe Access

Medical marijuana activists gathered last night to protest outside of Long Beach City Hall while the city counsel met to discuss their options going forward. 

It's become apparent that the whole mess is going to get a lot messier until Americans start to adopt a more common-sense-based approach to marijuana in general.  Until Congress and the White House come to the (gasp!) realization that marijuana prohibition causes more harm than the drug itself, we're going to keep fighting the same battle over and over again.  States like California have had their hands tied by an archaic, illogical, racist, wasteful, federal "War on Drugs" (dumb).  Recent polls show that a majority of Americans now favor legalizing and regulating the plant, similar to alcohol (smart!).  But, alas, the will of the majority continues to be hijacked by the whims of a few.

Contact your Congressman (or Congresswoman) today and let them it's time to reconsider the Controlled Substances Act (CSA), which classifies marijuana in the same schedule as heroin among drugs with no known medicinal value.

If you or a loved one is accused of a crime involving drugs or medical marijuana, contact the attorneys at Rizio & Nelson for a free consultation.

Photo stolen from the OC Register.

Tuesday, November 1, 2011

Killer Cops Due Back in Court

Killer cops Manny Ramos and Jay Cicinelli are due back in Santa Ana court this Friday for a pre-trial conference.  In case you've been hibernating or manning the space station for the past 4 months, these are the same goons who brutally beat Kelly Thomas to death on July 5, 2011.  Mr. Thomas was a 37-year old homeless man who suffered from severe mental illness. 

On the evening in question, Fullerton Police received a call referencing a suspicious subject in the parking lot of the Fullerton Transit Center.  The caller (who has never been identified, although various reports indicate may have been a manager at the SlideBar) reported that the man might be attempting to break into parked cars. 

Officer Ramos responded to the call with his partner, Officer Joe Wolfe.  According to the digital voice recorders worn by the officers, as well as various security cameras, Officer Ramos repeatedly ordered Kelly to sit on a curb with his legs crossed and his hands behind his back while the officers searched the contents of Kelly's backpack. 

Due to Kelly's severe mental illness, he had difficulty complying with the officer's orders and repeatedly uncrossed his legs.  At some point during the confrontation, Officer Ramos put on a pair of gloves and told Kelly "These fists are getting ready to fuck you up".  Reasonably fearing for his safety, Kelly attempted to run.  He was tackled a few steps later and severely beaten.  Bystanders indicate that officers tased Kelly at least 5 times while punching, kicking and choking him. 

Corporal Cicinelli responded to the scene after the confrontation had already escalated into a full-scale beating.  It is alleged that Cicinelli may have dealt the death blow by repeatedly drop-kneeing Kelly in the throat and head, as well as striking Kelly in the face with the butt of his taser.  

This is what Kelly looked like when 6 of Fullerton's finest were done with him:

He was kept alive for 5 days on life support before his family made the decision to remove him.  Mr. Thomas died from a combination of asphyxia and blunt force trauma to the head as a result of the beating and choking he suffered at the hands of the Fullerton Police.  

Kelly has become a symbol of police brutality.  His case has galvanized activists in the normally quiet, conservative town of Fullerton, CA.  His death has also helped shed light on what appears to be a culture of corruption and cover-ups within the Fullerton Police Department.  As of October, 2011, reports that no fewer than 9 Fullerton officers were on paid leave while under investigation for various crimes and abuse of authority.  Fullerton cops have recently been arrested for theft and drugs, sued for sexual assault, implicated in several other instances of brutality, and caught committing perjury. 

Partially in response to the public outcry against the officers involved, OCDA Tony Rackauckas announced on September 21, 2011 that Officer Ramos will be charged with 2nd Degree Murder and Manslaughter under the theory that he unlawfully precipitated a series of events that led to Kelly's death. Corporal Cicinelli is charged with Manslaughter and Excessive Force.  Both officers have entered pleas of Not Guilty and both are currently free on bail.  Their defense teams are being paid for the Fullerton Police Officers' Assn. (the police union). 

Both officers are scheduled to appear for pre-trial conferences this Friday, November 4.  The pre-trial conference is typically an opportunity for defense attorneys to sit down with the prosecution and to discuss the possible grounds for an early settlement via a plea bargain.  Nobody expects a plea deal to be reached in this case because the DA has not made any such offers.  Since the prospects for a plea deal are extremely slim, we can probably expect both sides to simply update the court re: the status of any outstanding discovery issues and to set dates for the court to hear motions, schedule further pre-trial hearings to resolve any loose ends, or set a date for a Preliminary Hearing (also referred to as a "Prelim", "Preliminary Examination" or a "Probable Cause Hearing" -- all different names for the same thing). 

Once the case advances to the Prelim, things really start getting interesting.  Everyone who is accused of a felony has the right to a neutral determination of probable cause.  One way this is achieved (the most common way in California) is by a Prelim.  The Prelim is like a little mini trial, wherein the DA spells out their case against a defendant.  Depending on the complexity of the issues, a Prelim can last anywhere from 30 minutes to several weeks.  The DA presents witnesses and puts investigators on the stand.  They explain what they found at the crime scene and how they came to suspect the defendant's involvement in the crime.  After the Prelim, the judge makes a determination as to whether or not continuing forward would be a waste of the court's time.  If the judge determines that there is a good reason to suspect that a crime has been committed and that the defendant is likely guilty of the crime, then the defendant is "held to answer" and the case is one step closer to trial. 

This blog will be closely following any developments in the case and I will try to provide meaningful legal analysis of every stage.  Stay tuned for more news as it becomes available. 

What to Do When Stopped for a DUI

Driving Under the Influence (also referred to as "Drunk Driving", "DUI/DWI") is one of the most commonly charged crimes in California.  It's the kind of thing that we've all done, but we haven't all been caught.  A conviction can be expensive and can carry some nasty penalties that will really make your life difficult for a while.  The following post describes what you should do, (and what you should NOT do) if you are stopped on suspicion of DUI.

The best way to guarantee that you won't be arrested for DUI is by designating a driver.  You've heard this before and I don't mean to sound like your mom, but seriously: don't plan on driving after you've been drinking.  That's sometimes easier said than done, though.  It's hard to tell when a few beers is actually a few too many.  Keep in mind also that you can be arrested on suspicion of DUI even when your blood alcohol concentration (BAC) is below the legal limit of 0.08.  There are a couple reasons for this:

First, DUI actually consists of 2 separate crimes in California, VC 23152(a) and VC 23152(b).  The (a) count applies when a person is impaired by alcohol, drugs, or the combined effects of alcohol and drugs.  To be convicted of the (a) count, it must be proven that the driver was not able to operate a vehicle with the skill and care of an ordinary sober person.  You can be convicted of the (a) count even when your BAC is below 0.08 if the officer has enough evidence to convince a jury that the effects of alcohol, drugs or both rendered you unsafe behind the wheel.  Some people are probably unsafe behind the wheel when they have a BAC of only 0.07.  Observed bad driving, coupled with poor performance on field sobriety tests (FSTs) and an officer's subjective observations (i.e. "He smelled like alcohol and seemed to have difficulty following directions") can spell bad news, even for someone below the legal limit. 

The (b) count is the crime of operating a motor vehicle with a BAC of >0.08.  When you have a BAC >0.08, you are presumptively impaired (and therefore presumptively guilty of the (a) count).

Second, remember that you can get a DUI even with a BAC of 0.00.  That's because, as previously mentioned, the (a) count can apply when someone is impaired by drugs.  This includes legal drugs like over-the-counter sleeping pills, prescription drugs like Xanax (even if you have a valid prescription -- that's not the issue), medical marijuana, chemotherapy drugs and illegal street drugs.  I've seen cancer patients who've been arrested for driving under the influence of their cancer drugs. 

Once you've been pulled over, remember that it's the police officer's job to gather evidence to be used against you in court.  He or she is not your friend and they're not interested in evidence that helps your defense.  They are working for the prosecution and they're doing everything they can to help the DA build a solid case against you.   A lot of the most incriminating evidence will come right out of your own mouth ("Yes, officer.  I was drinking at the bar and I just stopped here by the side of the road to rest my eyes for a minute").  That being said, you have no legal obligation to speak to the officer except to identify yourself.  You should politely refuse to answer any other questions and decline the field sobriety tests.  Do not voluntarily submit to a breathalyzer at the scene.  If you've been involved in a collision, simply tell the officer that you don't want to talk about the accident without an attorney present.  Do not lie to the officer, but don't do his or her job for them by providing them with evidence against yourself. 

Now you can probably expect to enjoy an all-expenses-paid night in jail, courtesy of your local police department.  This does not mean that you've been charged with a crime (remember: the police don't decide who's charged with what; that's the DA's job.  The police just gather evidence).  Once you get to jail, you will probably be given your choice of a breath test or a blood test.  You must submit to one or the other after you've been arrested (distinguish: at the scene of the arrest, you have no obligation to take the breathalyzer, and you should not submit to the breath test at the scene.  AFTER you are transported to the station, you must submit to a chemical test, however). 

There is a real split of opinion among attorneys regarding whether you should choose the breath test or the blood test.  There are advantages and disadvantages to each.  A blood test is more accurate and reliable.  A sample will be preserved for your attorney to retest in the future.  You may have a defense based on mishandled blood, improper use of anticoagulants / preservatives, etc.  A blood test will also find any drugs, legal or illegal, in your system that could tend to show that you were under the influence (i.e. the marijuana you smoked yesterday). 

The breath test, on the other hand, does not preserve a sample for retesting.  It is considered less reliable than the blood test.  You may have a defense based on improper maintenance of the breath machine and it will not detect any drugs other than alcohol.  For these reasons, I would personally opt for the breath test if I were in that position. 

Keep in mind also what police call the "attitude test".  Your demeanor can make a world of difference in the way you're treated.  I know that you're probably upset, angry, scared, confused, etc., but do your best to be polite and courteous (and that's harder than it sounds).  Having a bad attitude doesn't necessarily prove that you're drunk, but the officer will definitely note in the report if you're mouthy, crying, screaming, threatening to sue everybody, etc.  Having a bad attitude will also earn you a couple more hours of "sobering up" time in a holding cell. 

Once you're released from custody, you will have 10 days to contact the DMV and let them know that you plan to challenge the license suspension.  If you fail to do so, your driver's license will automatically be suspended for 120 days.  An experienced DUI attorney can help you fight the DMV and increase the chances of saving your license. 

If you or someone you know is arrested for DUI, call the attorneys at Rizio & Nelson for a free consultation. 

How to Choose a Criminal Defense Attorney

If you're accused of a crime, you're probably feeling completely overwhelmed.  You may be facing jail time, probation, fines, loss of driving privileges, mandatory classes (i.e. drug / alcohol education, anger management, etc.), as well as other consequences that the court has no control over (loss of professional licenses, public embarrassment and loss of your job).

The first decision that you need to make is whether or not to hire an attorney and, if so, who to hire.  Where do you even start looking? What kind of price should you expect to pay?  How do you know which attorney is right for you?

Most people who find themselves in your position simply can't afford quality legal representation.  An experienced, qualified, competent lawyer can charge thousands of dollars to take on a new case.  His or her fees will vary dramatically based on the type of offense and its seriousness, the location of the court / travel time, the particular attorney's personal experience and qualifications, the anticipated difficulty of the case and other more arbitrary factors. 

Because of the costs involved with hiring a private defense attorney, the majority of criminal defendants opt for the Public Defender.  The PD's services are generally available for defendants who are able to show that they don't have the financial resources to hire their own private attorney.  The Supreme Court of the US has ruled that all criminal defendants have the right to effective assistance of counsel at every important stage of the case against them.  If you can't possibly hire your own attorney, the court will appoint one to represent you.  You may be responsible for reimbursing the county for the costs of the PD's services, based on your ability to pay (the PD is not always completely free). 

There are obvious advantages and disadvantages to opting for the Public Defender.  On the plus side, they are probably your most affordable option.  They have tons of experience handling cases just like yours.  The PD will also be personally familiar with the prosecutor, the court, and the judge handling your case.  On the down side, Public Defenders are notoriously over-burdened with work.  They probably have 75 clients just like you that they need to get through today.  This means you'll get about 2 minutes of face time with your PD before you go before a judge and start making important decisions.  They may not have the time and resources that a private attorney could devote to your case and they probably won't be available to answer your questions or return your phone calls.  It sounds cliche, but you typically get what you pay for. 

If you're fortunate enough that you can afford a private attorney, how do you start to sort though all of the lawyers in your area?  Within a day or two of your arrest, you will be inundated with letters and advertisements from attorneys.  These letters are called "jail mail".  Some lawyers pay big money to access arrest records, then flood people with unsolicited ads at home.  Personally, I find this practice to be tacky.  It just smells like ambulance chasing.  I don't do it, but it must work because lots of attorneys do.

Other attorneys spend FORTUNES on radio or TV ads and even give themselves cute nicknames (e.g. "Top Gun").  These guys are not necessarily any better than the Public Defender and they can be at least as busy.  Ask yourself if you're really paying for their services or for their expensive radio ads.  Do you want to shell out thousands of dollars for an attorney who's too busy to return your phone calls?

It's a mixed blessing for us here in Southern California that the market is crowded with attorneys, some much better than others.  You probably can't throw a rock without hitting one (don't try that, though).  If you don't have a relative or family friend who practices law, you probably know someone who does.

The best way to find a great attorney is by personal referral if possible.  The next best way to find a good attorney is by making about 1,000 phone calls.  It's important to find one that you're personally comfortable with.  Lawyers sell peace of mind, and if your attorney doesn't make you feel comfortable and secure, then he or she is not doing the job properly.  That being said, reassurance is a double-edged sword.  Lots of attorneys will make outrageous predictions and guarantees.  They'll tell you specifically how they're going to beat your case.  They're lying to you.  An attorney can't possibly know the strength of the case against you without thoroughly reviewing all of the relevant evidence and witness statements, performing any necessary additional investigation and sitting down face-to-face with the DA.  Be extremely wary of any attorney who sounds too confident or who predicts exactly what will happen in your case before he or she even makes their first court appearance.

If you or a loved one has been arrested or charged with a crime, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

Welcome to John Bussman's SoCal Law Blog!

Welcome to the newest law blog serving all of Southern California.

My name is John Bussman and I'm a licensed attorney focusing primarily on criminal defense.  I work with the Law Offices of Rizio & Nelson.  We have offices conveniently located in the Counties of Orange, Los Angeles, Riverside and San Bernardino.

The attorneys at Rizio & Nelson have extensive experience defending against all types of criminal charges, including (but not limited to) DUI / Drunk Driving (including DMV hearings), drug charges (possession, cultivation / manufacturing, sales, medical marijuana, trafficking / transportation, etc.), violent crimes (assault, battery, murder), domestic violence and sex crimes.  We offer convenient payment plans with affordable monthly payments for any budget.  If you or a loved one is accused of a crime, call me any time at (888) 292-8888 or email me at for a free consultation. 

This blog is devoted to matters of criminal justice and the legal system here in Southern California.  I'll be regularly updating the site with news, analysis, advice, pearls of wisdom and anything else relevant to local justice.  Check back frequently for the latest updates and feel free to submit any questions to the email address above.  I'll do my best to answer those in a timely manner.