The "Twinkie Defense" refers to a legal argument that was used during the 1979 trial of Dan White for the murders of San Francisco Mayor George Moscone and Supervisor Harvey Milk. The term is often used derisively (and incorrectly) in reference to any criminal defense theory that seems absurd.
Unfortunately, some lazy reporting by members of the news media at the time completely misrepresented the defendant's actual argument. That shoddy journalism led to some widespread misunderstanding that persists to the present. Today, the term seems to be misused in popular culture much more often than it is used correctly. In reality, the argument was a sound legal defense and not nearly as ridiculous as it came to be understood. Let me explain.
Dan White had been a San Francisco police officer and firefighter. In 1977, he was elected to the San Francisco Board of Supervisors. Over the following year, a deep political rift arose between him and fellow Supervisor Harvey Milk, which ultimately led White to resign from his position. Shortly after tendering his official resignation, White attempted to rescind it and to rejoin the Board. Milk lobbied against his reinstatement and successfully convinced Mayor Moscone to appoint a more liberal political ally to the vacant seat.
On November 27, 1978, White arrived at San Francisco City Hall with a .38 caliber revolver. He climbed through an open window to elude metal detectors at the building's entrance and proceeded to Moscone's office, where he demanded a meeting with the mayor. Following a verbal argument, White shot Moscone several times, reloaded, and quickly left. White then encountered Harvey Milk in a hallway. He asked Milk to step inside his former office, where he shot and killed the supervisor. White escaped from City Hall, but later turned himself in at a local precinct.
Dan White was charged with 2 counts of premeditated murder. At trial, the prosecutor presented evidence to support the allegation that the murders were carefully planned, including the fact that White had the presence of mind to climb through a window rather than submit to security screening at the building's entrance.
In his defense, attorneys argued that White suffered from severe depression, leading to a state of "diminished capacity". They told the jury that White's mental illness rendered him unable to form the "premeditation" required for a 1st-degree murder conviction. As proof of his depression, attorneys presented evidence of extreme behavioral changes that White had undergone shortly before the murders. Previously, White had been described as a "fitness nut", who exercised regularly and adhered to a strict diet of healthy food. In the weeks leading up to the shootings, though, White's hygiene had deteriorated, he had become alienated from his wife, and he had begun consuming junk food and sugary drinks. These things were all considered to be out of character for him. At trial, psychiatrists described those severe behavioral changes as symptoms of White's depression, not the cause of it. Nobody argued that Twinkies made him insane -- they argued that White was insane, and that his uncharacteristic consumption of junk food was proof that he had temporarily lost his ability to think clearly and to understand the nature of his actions.
Jurors agreed with the arguments of White's defense counsel and returned verdicts of "voluntary manslaughter" rather than 1st-degree murder. Public outrage over the verdicts led to riots and some significant changes to California law. Today, the argument of "diminished capacity" has been abolished in California courts and replaced with the doctrine of "diminished actuality". Defendants can no longer argue that some mental illness rendered them unable to form criminal intent. Instead, they must prove that they actually did not form the requisite intent due to some mental illness. The distinction is subtle but it has had a huge impact on the way that these types of cases are litigated today.
Irresponsible members of the news media fed into the public outrage by grossly misrepresenting White's actual argument. As the story was falsely relayed by several outlets, Dan White had escaped justice by speciously arguing that he was "high" on Twinkies at the time of the killings, or that his excessive consumption of sugar had somehow rendered him "temporarily insane". Sensational but inaccurate stories made national headlines and perpetuated the myth of the "Twinkie Defense" as it persists in popular culture today.
If you or a loved one has questions about "diminished capacity / actuality" or "insanity" in California, or if you just want to talk about the "Twinkie Defense", call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience defending against all types of criminal charges in Southern California, including cases where the defendant's competency or mental health may be at issue.
Thanks for reading.
Orange County Criminal Defense Attorney
Thursday, April 25, 2019
Friday, April 12, 2019
Police Took My Stuff. How Can I Get it Back?
Police often seize property during investigations if they believe that the items are illegal to possess or that the property is evidence of a crime.
Of course, police have the authority to collect evidence for criminal prosecutions. Citizens, though, have the right to be free from unreasonable seizures. Individuals in the United States also have the right to Due Process before the government can simply take their property. When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.
There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.
Evidence
If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved. They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.
After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins. When the case is over, then the items are no longer needed as "evidence". If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise. And there are a few good counterarguments.
Contraband
Obviously, the court will not order the police to return something that is illegal to possess. Illegal weapons, for example, must be destroyed by law after a case is resolved. The same is true for drugs, drug paraphernalia, and counterfeit goods.
These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband". Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments. It's amazing how many police, prosecutors and even judges don't understand these laws. Police often seize legal weapons because they "look scary". A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.
Forfeiture
If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited. If property is forfeited, the police get to keep it. This has become a huge area of controversy lately. Some police departments have become dependent on forfeiture actions to balance their budgets. Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.
The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved. If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence. This is especially common in cases involving poaching and illegal fishing. Poachers and illegal fishermen usually possess a lot of expensive gear. The Fish & Wildlife agents really want that gear. In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife. If you're not willing to forfeit your valuable gear, we can help you keep it.
Marijuana
Marijuana is legal in California, but it is also subject to many regulations and restrictions. This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do. If police seize your cannabis, call our office to discuss your options.
If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return. This may be risky, though. By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble. Talk to us before you talk to the police.
Firearms
Guns are even more complicated. Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them. This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.
If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons. In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them. This is a several-step process, but it can be done.
If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Criminal Defense Lawyer
Of course, police have the authority to collect evidence for criminal prosecutions. Citizens, though, have the right to be free from unreasonable seizures. Individuals in the United States also have the right to Due Process before the government can simply take their property. When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.
There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.
Evidence
If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved. They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.
After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins. When the case is over, then the items are no longer needed as "evidence". If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise. And there are a few good counterarguments.
Contraband
Obviously, the court will not order the police to return something that is illegal to possess. Illegal weapons, for example, must be destroyed by law after a case is resolved. The same is true for drugs, drug paraphernalia, and counterfeit goods.
These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband". Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments. It's amazing how many police, prosecutors and even judges don't understand these laws. Police often seize legal weapons because they "look scary". A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.
Forfeiture
If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited. If property is forfeited, the police get to keep it. This has become a huge area of controversy lately. Some police departments have become dependent on forfeiture actions to balance their budgets. Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.
The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved. If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence. This is especially common in cases involving poaching and illegal fishing. Poachers and illegal fishermen usually possess a lot of expensive gear. The Fish & Wildlife agents really want that gear. In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife. If you're not willing to forfeit your valuable gear, we can help you keep it.
Marijuana
Marijuana is legal in California, but it is also subject to many regulations and restrictions. This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do. If police seize your cannabis, call our office to discuss your options.
If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return. This may be risky, though. By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble. Talk to us before you talk to the police.
Firearms
Guns are even more complicated. Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them. This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.
If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons. In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them. This is a several-step process, but it can be done.
If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Criminal Defense Lawyer
Tuesday, April 9, 2019
Getting (or Fighting) a Restraining Order Against a Neighbor
Intro to Civil Harassment: When Neighbors Go Bad
California law allow individuals who have been the victims of harassment to seek the protection of a restraining order. There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc. Today, I want to specifically discuss restraining orders between neighbors.
Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence). Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders". They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.
To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment". The petitioner bears the burden of proving the case by "clear and convincing evidence". "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases). It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.
If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment". Those orders can also protect other individuals who live with the petitioner, and even pets.
Harassment, Defined
Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion. In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be. The legal definition of "harassment" is:
California law allow individuals who have been the victims of harassment to seek the protection of a restraining order. There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc. Today, I want to specifically discuss restraining orders between neighbors.
Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence). Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders". They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.
To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment". The petitioner bears the burden of proving the case by "clear and convincing evidence". "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases). It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.
If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment". Those orders can also protect other individuals who live with the petitioner, and even pets.
Harassment, Defined
Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion. In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be. The legal definition of "harassment" is:
- a course of conduct (not just a single act),
- which is directed AT a particular person (not just some behavior that affects the petitioner),
- which serves no lawful purpose (more on this below),
- which would cause a reasonable person to suffer distress, and
- which does actually cause the petitioner to suffer distress.
That means the conduct in question must be something that your neighbor has done TO you, not just something your neighbor has done that AFFECTS you. A good example is illegal parking. Your neighbor might violate every single ordinance in the book by constantly parking his cars illegally. Maybe he leaves inoperable vehicles on the street for weeks at a time, leaking oil everywhere. This conduct might affect you because it creates an eyesore and because your guests have nowhere to park. It might even cause you to "suffer distress", but it is not directed AT you. Since your neighbor is not doing anything TO you, illegal parking is not the basis for a restraining order. You may have other remedies (e.g. calling the police or Code Enforcement, etc.), but a restraining order is not appropriate here, no matter how much your neighbor's illegal parking bothers or annoys you. The same is true for neighbors who smoke on their own property, let their lawns grow 3 feet high or who build bonfires that aggravate your asthma. Those things might be code violations and they might cause you to suffer distress, but they're not "harassment" because they're not targeted AT you.
What about a neighbor who constantly calls the police to report every perceived infraction? I'm talking about the nervous old lady who reports "loud parties" at 7:30 PM -- I'm talking about the self-appointed "neighborhood watchman" who has Code Enforcement on speed dial, like Wyatt Earp of the cul-de-sac. What can be done if you've become the target of one of these vigilantes? Unfortunately, not much, at least not in restraining order court. Remember, to constitute "harassment", the conduct must serve "no lawful purpose". Calling the police to report some perceived offense is a lawful purpose, even if that conduct is directed at you and it causes you to suffer distress. The judge will never order someone to stop calling the police. Eventually, the police might tell them to stop calling, or they might simply stop responding. If the police determine that someone is filing reports that they know to be false, they can pursue criminal charges against the caller. Again, though, a restraining order is not the appropriate remedy here.
Scope of Orders, and Their Limits
The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment". As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.
The respondent can be ordered not to contact you by any means, directly or indirectly. That includes in person, by phone, text, mail, etc. That even includes asking someone else to pass along a message to you, except through an attorney.
If the respondent violates any of those orders, he or she can be arrested for "contempt of court". If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.
The judge cannot, however, order someone to stop talking about you if you're not present. If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies. Again, though, a restraining order is not the appropriate remedy.
Restraining Orders and Firearms
If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer. The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.
If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk". Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms. The respondent is not obligated to let them in unless agents present a search warrant. (NOTE: Generally, any adult who is present at the time can give agents consent to a search. If the husband refuses and the wife allows it, for instance, then agents have consent. Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)
If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant. The governor recently granted more funding to these regional teams of DOJ investigators. They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.
If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options. If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member. If they have great financial value, you may also be able to sell them for their fair market value. You may also be permitted to store them for a longer period if you expect to recover them later.
Free Attorney Consultation
If you or a loved one has problems with a neighbor, or questions about restraining orders in general, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Restraining Order Lawyer
Scope of Orders, and Their Limits
The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment". As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.
The respondent can be ordered not to contact you by any means, directly or indirectly. That includes in person, by phone, text, mail, etc. That even includes asking someone else to pass along a message to you, except through an attorney.
If the respondent violates any of those orders, he or she can be arrested for "contempt of court". If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.
The judge cannot, however, order someone to stop talking about you if you're not present. If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies. Again, though, a restraining order is not the appropriate remedy.
Restraining Orders and Firearms
If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer. The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.
If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk". Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms. The respondent is not obligated to let them in unless agents present a search warrant. (NOTE: Generally, any adult who is present at the time can give agents consent to a search. If the husband refuses and the wife allows it, for instance, then agents have consent. Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)
If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant. The governor recently granted more funding to these regional teams of DOJ investigators. They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.
If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options. If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member. If they have great financial value, you may also be able to sell them for their fair market value. You may also be permitted to store them for a longer period if you expect to recover them later.
Free Attorney Consultation
If you or a loved one has problems with a neighbor, or questions about restraining orders in general, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Restraining Order Lawyer
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