Friday, June 22, 2012

Vigilantism and the Law

Vigilantes have been part of the American social and legal landscape ever since a group of farmers faced down the Redcoats at Concord and Lexington.  From the posses of the Old West to the lynch mobs of the Post-Reconstruction South, bands of armed individuals have shaped American history for better or for worse.  Driven by the idea that government is unwilling or unable to enforce the law, Americans have historically done so themselves.

Vigilantism takes many forms today, from self-appointed border watchers like the Minutemen to Neighborhood Watch volunteers.  Vigilante "justice" has recently grabbed headlines with sensational stories like that of George Zimmerman and Treyvon Martin.  After much reflection, however, I've decided not to devote this post to a legal analysis of Zimmerman's defense for a couple reasons.  The foremost reason that I've decided not to write about George Zimmerman is simply because the basic facts of that case are still unknown.  It's impossible to thoroughly dissect the legal intricacies of such a complicated matter when there are still so many moving parts.  Accounts of Treyvon Martin's death vary so wildly that any analysis would be more speculative than illuminating.  The other reason that I chosen not to devote this post to George Zimmerman is that I simply don't have anything profound to say that hasn't already been said.

Instead, I've decided to devote this post to the story of the unnamed Texas father who beat to death Jesus Mora Flores, 47, after he caught Flores in the act of raping his 5-year-old daughter.  The facts of the case seem to be well-established and corroborated by several witnesses.  On June 9, the 23-year-old father was helping a friend perform some farm work in the town of Shiner, Texas (famous for Shiner Bock Beer).  The father had sent his 8-year-old son and his 5-year-old daughter to perform a chore.  The son returned shortly later and reported that a man had taken the 5-year-old.  After a search of the farm, the girl's screams led the father to a barn, where he encountered Flores in the act of sexually assaulting the young girl.  Using only his bare hands, the 23-year-old man beat Flores about the head and neck.  Emergency responders found Flores with his pants and underwear around his ankles.  He was declared dead shortly thereafter.  Medical exams confirmed that the girl had been sexually assaulted.

Local prosecutors referred the case to a grand jury, which declined to indict the father last week.

It's hard to find fault with the father's actions from a moral standpoint, but what about legally?  How does / should the law treat this form of vigilantism?

At first glance, the father appears to have at least 2 compelling defenses to a potential murder charge.  The strongest likely defense would be that of self-defense.  Self-defense falls under the umbrella of "necessity" defenses.  An otherwise-unlawful act is justified by "necessity" when the defendant can convincingly show that his act prevented some greater harm and that the act was absolutely necessary (i.e. that no other course of conduct was available to prevent the same harm).  The legal doctrine of "self-defense" is not limited to situations where the actor actually defends himself; self-defense may be claimed when the actor acts in defense of others who are unable to defend themselves, such as here.  Generally, the degree of force used must be proportional to the threat and may not exceed the degree which is reasonable necessary to avoid the greater harm.  For example, one would not be justified in using deadly force to repel a simple assault or some minor crime.

Let's look at how self-defense applies in this situation:  Since the young girl was actually facing imminent harm, any adult would have probably been justified in using the necessary degree of force against her attacker.  After that, it gets murky.  How much force is justified?  One punch?  One blow of a baseball bat?  One shotgun blast?  If the attacker died of a single punch to the head, the father's act would almost certainly be legally justified.  If, on the other hand, the father stomped on the attacker's face after witnesses claim the attack had already ended, self-defense would probably not be found to apply.  Assuming for the sake of discussion that the father used more than the necessary degree of force to stop the attack, he might choose to employ another defense strategy.

Rather than self-defense, the father might argue a defense based on lack of capacity to form criminal intent.  This is sometimes referred to as "temporary insanity" or "adequate provocation".  The crime of murder requires the prosecutor to prove two elements: 1) that the defendant killed another human, and 2) that the defendant acted with "malice", otherwise known as "criminal intent" or "mens rea".  In extremely rare situations, it can be argued that a defendant was so provoked that he cannot be held legally responsible for his response to the provocation.  He was so blinded by rage, for example, that any reasonable person in the same circumstance would have been helpless to control himself and would have reacted similarly.  If he is found to have acted without the mental faculties to understand his actions as he committed them, then he acted without criminal intent and he is not guilty of the crime of murder.

This strategy is rarely used and even more rarely successful, for obvious reasons.  Any indication that the defendant thought before acting negates the entire defense.  The textbook example involves the husband who comes home from work and finds his wife in bed with the neighbor.  If the husband goes to his gun safe, removes his largest-caliber revolver, loads it and shoots the neighbor, he is probably guilty of murder since he had a very brief "cooling off" period in the time that it took him to fetch and load the gun.  If he simply beats the neighbor to death with the bedside lamp, he might have a shot at trial.  Moral of the story: never think before acting.

For discussion of a third possible defense, see "The Wild and Wonderful World of Jury Nullification", below.

Stay tuned for more exciting news and analysis as interesting vigilante stories arise this summer.  Maybe I'll start a "Vigilante Mini-Series" if I can dig up more compelling stories of citizens taking the law into their own hands.  As always, I'm open for suggestions.

Monday, June 18, 2012

What Can an Expungement Do for Me? Glad you asked.

In 1935, the California Legislature enacted section 1203.4 of the Penal Code, establishing the legal groundwork for our expungement process.  Since then, individuals who have been convicted of crimes now have a procedure for cleaning up their criminal records by demonstrating reformation and continued good conduct.

An expungement essentially dismisses a case against you AFTER you've successfully served all penalties, including payment of all fines and court costs.  An expungement will not completely erase the fact that you were ever arrested and charged with a crime.  Rather, it retroactively changes your "guilty" plea to "not guilty".  After your petition is granted, your conviction will show up as a dismissal on a court records search.   

Generally, in order to be eligible for the benefits of 1203.4, a petitioner must meet the following criteria:

1) You must have successfully completed probation for a felony or misdemeanor.

If you were sentenced on a misdemeanor or infraction and not given probation, you must wait one year from the date of your conviction or your release from custody, whichever came later.

If you were sentenced to prison on a felony and not given probation, you are ineligible for an expungement, but you may qualify for a gubernatorial pardon.

2) You must not have any other open / pending cases and you must not be on probation or parole in any other matters.

3) You must pay the $120-150 filing fee.

That's it.  Not terribly complicated.  There is usually no argument involved.

There still seems to be a lot of confusion surrounding expungements, and some valid debate over their actual value.  One popular misconception is that an expungement will "seal" your record, or completely erase any mention of the fact that you were once convicted of a crime.  As mentioned above, not so.  Even after your petition is approved, anyone who understands criminal law in California will STILL be able to see that you were arrested, convicted and that you later paid $120.00 for an expungement.

An expungement will not restore firearms rights.  If you've ever been convicted of any felony or certain misdemeanors, you may not be eligible to own or possess firearms.  An expungement will not have any effect on this.

An expungement will not have any effect on sex offender registration.  There is a procedure for having yourself removed from the Megan's Law website and from the statewide Sex Offender Registry, but a 1203.4 petition is not it.

If you ever apply to become a police officer, you're still going to need to disclose any conviction that has been expunged.  The same goes for applications to the State Nursing Board.  If you win the lottery, they're also interested in expunged convictions for some reason.

Finally, an expungement has no effect on any DMV actions against your driver's license.

So what's the point?  Why on Earth would anyone go through the process of expunging their old convictions if the conviction will STILL be a public record and they STILL won't be allowed to carry firearms?

The best reason to expunge old convictions is to improve your job prospects.  In California, it is unlawful for a prospective employer to discriminate against an applicant based solely on criminal charges that have been dismissed.  In fact, it's illegal for them to even ask about convictions that have been expunged.  If you read the fine print on most job applications, you'll notice that they probably ask about felonies and misdemeanors.  It also probably says that you need not disclose any conviction that has been dismissed pursuant to PC 1203.4.  If an old "Drunk in Public" ticket is standing between you and your dream job, an expungement might be right for you.

As mentioned above, there is usually no argument involved in 1203.4 hearings.  The issue is (usually) limited to whether or not the petitioner has successfully complied with probation for the entire term thereof and whether or not the petitioner has remained law-abiding.  If so, the petitioner has earned the expungement.  If the petitioner has NOT complied with probation or has NOT remained law-abiding, then he or she has NOT earned the expungement.  Judges do have some discretion to grant expungments where they have not technically been earned, but it usually takes a VERY compelling reason to convince them to do so.

The most common reason that expungement petitions are denied is for failure to successfully complete all of the terms of probation.  Typically, the court will deny an application if fines are still owed or if the petitioner has not completed a court-ordered program (e.g. CalTrans, Community Service, etc.).  If court records show that some term of probation is still outstanding, the DA will oppose the petition and the court will schedule a 1203.4 hearing to hear argument.  Argument is limited to whether or not probation was successfully completed.  If your petition is scheduled for a hearing, bring all of your documentation with you when you come to court.  You might be asked to prove that you have actually done all of the things that you were ordered to do.  It is very common for the court to lose or misfile paperwork so you'll want all of your receipts to show the judge that you paid your fines and took your classes as ordered.

As always, the smartest way to start the process is by speaking with an attorney.  A qualified criminal defense lawyer can at least tell you whether or not you're eligible for 1203.4 relief before you invest too much time, effort and money into the process.  When in doubt, call me for a free consultation. 714 449-3335. I'll look up your record and review any paperwork before I accept a dime from you.  As much as I want to take your money, I won't do so unless I can actually help.