Friday, November 30, 2012

Three Little Piggies Went to Court

Three of Fullerton's Finest appeared this morning before Judge Froeberg in Department 40 of the Orange County Superior Court.  The case had been scheduled for a "995 Motion" (more on that below).  After taking brief statements from District Attorney Tony Rauckauckas and counsel for each of the defendants, parties stipulated that the hearing would be continued to January 18.

Officer Manny Ramos (top left) stands accused of Murder and Involuntary Manslaughter.  Corporal Jay Cicinelli (top right) is accused of Involuntary Manslaughter and Assault & Battery by a Police Officer.  Officer Joe Wolfe (bottom) faces the same charges as Cicinelli.  All three are accused of causing the death of mentally ill homeless man Kelly Thomas during a brutal confrontation last July at the Fullerton Transit Center.  The beating was captured on city-operated cameras.  During the beating, Kelly can be heard crying for help and repeatedly apologizing to the officers before he takes his last breath.

Ramos is accused of instigating the confrontation by threatening Thomas.  At one point in the video, Ramos is seen putting on latex gloves.  He says to Thomas, "See these fists?  They're getting ready to fuck you up."  At one point after receiving the threats, Thomas attempted to run from Ramos.  Officer Wolfe was the first to strike Thomas with a baton, quickly taking the 130-pound Thomas to the ground.  Cicinelli arrived on the scene after the beating had already begun.  Cicinelli deployed his taser into Thomas several times, then began using the butt of the weapon to pound the victim in the face repeatedly (I suspect Cicinelli is going to learn something about "butt pounding" where he's going).  Cicinelli can be heard on the audio recording saying "I just started smashing his face to hell".  Thomas died after being removed from life support 5 days later.

As I have explained in prior posts, every felony defendant has a right to a "probable cause" hearing.  The purpose of this hearing is to determine whether or not there is enough evidence that a reasonable jury MIGHT possibly vote to convict.  If there is not, we should stop wasting the court's time and the case should be dismissed.  If there is, then we must start preparing for an eventual trial.

There are two ways for the court to determine whether or not "probable cause" exists.  The first and most common way is by conducting a "preliminary hearing" (also commonly referred to a "preliminary examination", "prelim" or just "PX").  At the PX, the DA will present most of their case-in-chief.  Typically, an investigating officer will take the stand and say something like this: "I received a call of a domestic disturbance.  When I arrived at the residence, the victim had a bloody lip and the suspect had blood on his hands.  Witnesses told me that the suspect had punched the victim, so I arrested the suspect.".  After hearing the evidence, a judge will typically find that probable cause exists and the defendant is thereafter "held to answer" to the charges.

The other (and must more rare) way for probable cause to be established is by a Grand Jury.  The Grand Jury is group of volunteers who sit on the panel for one-year terms.  They meet in secret to review the facts and to decide whether or not sufficient evidence exists that a suspect could be convicted of a particular crime.  If they decide that probable cause exists, the defendant is thereafter "indicted" for the crimes.  The Grand Jury is more expensive and time-consuming than the PX, so it is only used in very sensitive cases or cases wherein the suspect is a public figure.  The DA may be reluctant to publicly charge a politician with some wrongdoing unless he is confident that the charges will actually stick.  In cases like these, prosecutors can opt for the secrecy of the Grand Jury rather than the usual PX.

In this case, Ramos and Cicinelli were initially charged in the typical manner.  They were publicly accused and subjected to a PX.  After hearing the evidence, a judge determined that probable cause existed and both were thereafter "held to answer" for their crimes.  Wolfe, however, was indicted by the Grand Jury several months later.  This, to me, suggests that DA Tony Rackauckas was reluctant for some reason to publicly charge Wolfe with the serious crimes alleged.  Rather than risking a political firestorm by filing excessive charges and running the risk that some could be dismissed, he instead opted for the Grand Jury route.  If the Grand Jury had determined that there was no probable cause, Officer Wolfe would never be charged and could be spared the public embarrassment of such an accusation.  Of course, the Grand Jury did return an indictment and Wolfe now stands next to Ramos and Cicinelli as all three await trial.

We know that 5 Fullerton Police Officers were involved in the beating that killed Kelly Thomas.  Many in the community have called for charges to be brought against the remaining two, but the DA has declined to do so.  Of course, we will never know if Rackauckas has presented those cases to the Grand Jury.  It is entirely possible (pure speculation) that the DA HAS presented those suspects to the Grand Jury and the Grand Jury has declined to indict because they found no evidence of wrongdoing.

Long story short, probable cause has now been established against all three accused officers.  Their defense attorneys have filed documents called "995 Motions".  A 995 Motion essentially asks the judge to dismiss a case after the PX if a defendant has been unlawfully "held to answer".  The defense is arguing that errors were made at the prelim (or, in Wolfe's case, at the Grand Jury) and that probable cause was found where none actually existed.  The 995 is always a long-shot and never really very likely to succeed.  Failing to file the motion would probably be considered malpractice on the part of the defense attorneys, though.  It's kind of a proverbial "shot in the dark", but one worth taking.

Today had been the day for argument on the 995 motions.  Defense attorneys for the accused asked the judge for more time, however, because the evidence is voluminous and the issues are complicated.  By stipulation of the parties, it was agreed that argument would be postponed until January 18, 2013.  Ron Thomas, father of the victim, addressed the court to oppose the continuance, but Judge Froeberg allowed the delay over Mr. Thomas' objection.

The defendants exited the courtroom immediately after the ruling.  They were flanked by a large group of family and supporters, including armed escorts.  An overweight Hispanic woman, presumably Ramos' wife or a female relative, was seen taunting Kelly's family as the crowd spilled into the hallway.  Ramos laughed and told her "You're funny" as he stepped into the elevator.

Check back on January 18 more another exciting update to the saga.  I will continue covering this story until there is justice for Kelly Thomas.

Tuesday, November 27, 2012

Is Facebook Secretly Selling Your Instagrams to the Russians?...and other reasons to freak out for no reason.

Today's post is a bit of a departure for this blog.  I know many of my readers direct their web browsers here for the most up-to-date, insightful commentary on current developments in the world of criminal law, but I've decided to go a different direction today.  This post is instead dedicated to yesterday's magnificent collision of intellectual property law, social media and a good-old-fashion internet hoax.

If you logged onto Facebook yesterday and you have more than 3 or 4 friends, you probably saw the following message pasted onto at least one status bar:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place

 them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

Of course, cutting and pasting this message onto your Facebook status carries absolutely no legal relevance (except to formally notify all your friends that you are gullible).  It essentially has the same legal effect as posting "I hereby declare that all rules, laws, international conventions and treaties do not apply to me except the ones that I imagine."

It does not require an expensive legal education to spot a hoax like this.  Several "red flags" should jump out at anybody who has ever tried to read the legalese on a mattress tag.

For starters, have you ever read a legal document that used exclamation points?  There is no need to yell when crafting air-tight legal disclaimers.

Next, you might have noticed that there is no such thing as "the Berner Convention".  The Berne Convention is a real thing, but its signatories probably didn't have Facebook in mind when they ratified the treaty in 1886.  The Berne Convention was an agreement by member nations to recognize copyrights granted by all other signatories.  It focused on artistic and literary copyrights, but expressly excluded photographs.  If you have a copyrighted photo of yourself making a duck face in a bathroom mirror and you post it to Facebook, don't expect the Berne Convention to protect your "intellectual property".

By now you're probably wondering what the UCC (which stands for "Uniform Commercial Code") has to do with any of this.  The answer is nothing.  Don't ask my why the author threw it in there.  The UCC is a huge body of model laws governing any sort of commercial transaction you can possibly imagine.  A bunch of lawyers and academic types got together and drafted a set of rules that make a lot of sense when conducting almost any sort of business.  Every jurisdiction in the US has based their commercial codes on the UCC, some more loosely than others.  No jurisdiction in the US has adopted the UCC in its entirety.  And again, it is completely irrelevant to any instagrams of food that you post to Facebook.

This brings us to the Rome Statute.  The Rome Statute established the framework for the International Criminal Court (the "ICC").  The ICC was formed in 1998 to prosecute genocide, war of aggression, and other crimes against humanity.  To date, the ICC has not prosecuted a single case involving misappropriation of instagrams.

And finally, we must address the assertion that Facebook is now an "open capital entity", and that this has some effect on the pictures of cute animals that you have been busy posting.  If there were such a thing as an "open capital entity", we could all imagine what this would mean for Farmville.  Luckily, there isn't.

Stay tuned for more exciting idiocy as it happens.

Wednesday, November 7, 2012

Election 2012: What's New in Criminal Law?

Last night, voters turned out to decide the future of the country.  Here at the SoCal Law Blog, our interest was devoted to a few ballot initiatives with special implications for criminal justice in California and around the nation.  I've summarized some of these developments below:

-Prop. 34 (California): Would have abolished the death penalty in CA and replaced it with "life-
without-parole".  The measure would have also transferred $100 million from the State to local law enforcement agencies to help investigate cold cases.

Proponents of the measure argued that CA's death penalty system is expensive, dysfunctional, discriminatory, inhumane, and just plain ineffective as a deterrent.  Opponents were backed by various law-enforcement and victims' rights groups.

The measure failed by a margin of 52.8% to 47.2%.  Looks like we will have a (nominal) death penalty in the Golden State for at least 4 more years, when this issue will almost certainly come before voters again.

-Prop. 35 (California):  Increases penalties for human trafficking, requires convicted traffickers to register as sex offenders, and requires registered sex offenders to disclose details regarding their internet usage.

This one passed by a huge margin of victory.  No real surprises here.  Who votes against such a no-brainer?  This guy, for one.

Prop. 35 is a "feel-good" measure that will make people feel like they're making a positive difference (as are most criminal-justice related ballot proposals), without really making any important changes to protect children from becoming victims of sex abuse.  The activities punishable under this act were already illegal before its passage.  This measure merely represents our collective disgust with sex traffickers and not an actual policy shift to help stop that activity.

Sex offenders on probation or parole must already cooperate with any reasonable directives of their supervising probation / parole officers.  This supervision already includes monitoring of the sex offender's internet activity.

Prop. 35 requires that any person who derives income from the work of prostitutes must register as a sex offender.  The intent was to publicly "out" pimps and others who earn their livings by managing sex workers.  The lead opponent of the measure, Maxine Doogan, is a professional "erotic service provider" (her euphemism, not mine).  Since Ms. Doogan provides financial support for her adult son while he attends college, she fears that he could be prosecuted and required to register as a sex offender for life, simply for accepting support from his prostitute mom.  See how good intentions can have counter-intuitive results?

-Prop. 36 (California):  Amends the "3 Strikes" law so that a 3rd, minor felony will not automatically result in a "25-to-life" sentence.  It also passed by a comfortable margin.

California's 3 Strikes law currently works as follows:  if an individual has two prior convictions for certain, enumerated "serious or violent" felonies (e.g. rape, assault with a deadly weapon, residential burglary, etc.), ANY third felony would automatically result in a prison sentence of 25 years to life in prison, regardless of how serious or petty the third felony is.

Many people are currently serving life sentences in California for very ticky-tacky 3rd "strikes".  For example, petty theft can be charged as a felony if the defendant has a prior misdemeanor conviction for petty theft.  If you've got two prior strikes and a misdemeanor conviction for stealing a candy bar, stealing another candy bar will land you behind bars for the rest of your natural life.

Similarly, "Commercial burglary" can also be charged as a felony.  The crime of commercial burglary is defined as "entering property, other than an inhabited dwelling, with the intent to commit theft therein".  Walking into Walmart with a plan to shoplift is commercial burglary even if you don't actually steal anything.  This means that if you have two prior strikes and you walk into a Walmart with a plan to steal a pack of gum, you might as well shoot somebody in the face because the penalty for doing so would be the same (25-to-life either way).

There are many other seemingly-petty crimes that can be charged as felonies, or even as "strikes" in certain situations.  Stealing a bicycle out of an open garage, for example, can be charged as "residential burglary", which is considered a "serious or violent crime" and can be treated as a strike.

Prop. 36 amends this hyper-rigid sentencing scheme so that ALL THREE felonies must now be "serious or violent" in order to trigger the mandatory 25-to-life sentence.  A third conviction for a minor or petty felony will no longer automatically result in a life sentence.  This common sense approach will save taxpayers millions of dollars every year in prosecution and incarceration costs.  It grants more flexibility to District Attorneys and judges and it better serves the interests of justice by making the punishment fit the crime.

-Amendment 64 (Colorado):  Amends the State Constitution to allow for the personal and recreational use of marijuana by adults 21 and older.  Directs the legislature to implement a system to regulate the production, sale, and taxation of marijuana.

Congratulations to the people of Colorado!  On Tuesday, November 6 you became the first jurisdiction in the history of the world to repeal marijuana prohibition by popular vote.  Amendment 64 represents a huge step towards finally adopting a more rational policy regarding drug use in this country.  Hopefully, your achievement will soon be mirrored throughout the western states.

Cracks have begun to appear in the great dam of prohibition.  Alcohol prohibition finally failed once states began to thumb their noses at the federal government and repealed local booze bans.  When the dominoes started to fall, Uncle Sam just couldn't afford to continue his wasteful, failed War on Alcohol.  Drug policy reformers are now mimicking the strategies that worked in the 1930s.  The strategies still work, prohibition still doesn't.

Once again, way to go, Colorado!

-I-502 (Washington):  Three short hours after Colorado passed Amendment 64, Washington voters approved I-502, effectively legalizing marijuana in that state, too.

Like Amendment 64 in Colorado, I-502 removes criminal and civil penalties for the adult possession of limited quantities of marijuana and marijuana-laced products.  It also directs the state's Liquor Control Board to draft regulations regarding licensing for growers and distributors.

I-502 generated a lot of debate and contention within the marijuana legalization community because it includes a very controversial provision regarding driving under the influence of marijuana.  Under I-502, the state will impose a threshold "per se" blood-level for delta-9 THC, marijuana's psychoactive ingredient.  Any person caught operating a motor vehicle with greater than 5 ng / ml of THC in his or her blood will be deemed guilty of "driving under the influence of marijuana".

We all agree that driving while stoned is certainly dangerous and could impair one's ability to safely operate a vehicle, but many activists and experts feel that the 5 ng / ml limit is arbitrary, ridiculously low, and really not based on any reliable science.  Most studies indicate that a person would remain well above that level for 12-24 hours after smoking.  If you take a toke before bed, you could be arrested for DUI while driving to work the next day.  Daily smokers would almost never fall under the legal threshold to drive a car.

It will be interesting to see how this all plays out!  Watch for updates as the feds almost certainly sue to prevent the full implementation of Amendment 64 and I-502.