Restore Accountability - Support the Fullerton Recall

Update: On June 5, 2012, Fullerton voters overwhelmingly chose to clean house.  All three council members facing recall were shown the door.  "Yes" votes outnumbered "No" votes on the recall by a margin of 2-1.  Travis Kiger, Greg Sebourn and Doug Chaffee will replace F. Dick Jones, Pat McKinley and Don Bankhead.  Congratulations, Fullerton!

Fullerton, California has grappled with an abject failure of leadership over the past decade or so.  For many of us, the tipping point came with the beating death of unarmed homeless man Kelly Thomas on July 5, 2011 (for more details regarding Kelly's murder at the hands of the Fullerton Police Department, see previous posts).

Kelly's death and the subsequent cover-up are not the only reasons that Fullerton needs a change of leadership, they're just the straws that broke the camel's proverbial back.  Below, I've outlined several reasons that F. "Dick" Jones, Pat "McPension" McKinley and Don Bankhead need to go.

The Death of Kelly Thomas

Unless you've been manning the Space Station for the past year, you're probably familiar with the details of Kelly's murder.  In brief, he was detained by the Fullerton Police Dept. on July 5, 2011 on suspicion of burglarizing parked cars.  During the encounter, Officer Manny Ramos became frustrated that Kelly had difficulty complying with his orders, at one point stating "See my fists? They're getting ready to fuck you up".  Kelly tried to run but he was quickly taken down with batons and tasers.  In the beating that followed, Kelly sustained mortal injuries.  He died after being removed from life-support 5 days later.

Councilman (and former Chief of Police) Pat McKinley later bragged about having personally hired the officers involved in the beating.  Here is on CNN defending the killers.  While council members Bruce Whitaker and Sharon Quirk-Silva were quick to condemn the actions of these rogue cops, McKinley, Jones and Bankhead did everything in their power to try to excuse the inexcusable.  Whitaker and Quirk-Silva bravely and publicly called for the release of all relevant information regarding the investigation, including the city-operated surveillance tapes.  The Three Blind Mice (copyright Friends for Fullerton's Future) dragged their feet and downplayed the egregiousness of the officers' wrongdoing.  When DA Tony Rackauckas announced that 2 of the cops involved would face criminal charges, Jones called it "a tragedy for the officers".  Bankhead, also a former Fullerton cop, has consistently refused to take any action that might be contrary to the interests of his bosses within the Fullerton Police Officer's Assn.

Despite the Fullerton Police Department's well-documented track record of misconduct (see fullertoncops.com), the 3 council members facing recall have each done their part to resist meaningful reform.  They are each so utterly dependent upon campaign funding from the cops' union that they no longer represent the interests of the citizenry.

The FPD has lost our faith and the 3 Spent Cartridges have chosen to side with their union bosses over the electorate.  Go to the polls on June 5 and let them know how you feel about that decision.

Illegal Water Tax

Article XIII D, section 6(b) of the California State Constitution prohibits local governments from charging utility rates which exceed the costs of actually delivering the utility.  Basically, the city government may not profit by selling us water.

Of course, building and maintaining a water delivery infrastructure is expensive.  There are reservoirs, pumping stations, main pipes, administrative costs, etc.  Cities may (and most do) contract with a third party to actually deliver the water, and then pass those costs along to ratepayers in the form of a "franchise fee" on their water bills.  This is legal.

The City of Fullerton does things a little differently.  Since the city actually owns all of the water delivery infrastructure, there is no "franchise fee".  To offset the costs of water deliver, the city simply imposes a 10% surcharge onto our water bills, known as the "in-lieu-of-franchise-fee" (hereinafter, the "ILFF")

The revenue generated by the ILFF is then siphoned from the city's Water Fund and reallocated to the General Fund (coincidentally, the same fund that is used to pay council members' generous pensions).  It quickly becomes apparent why the council has a vested interest in assuring that this revenue stream keeps flowing.  Pun very much intended.

The problem is twofold: 1) The 10% figure is purely arbitrary.  It's a big, round number that someone pulled out of the air because it was easy to calculate.  It does not accurately represent the actual costs of water delivery.  2) It appears on its face to be an illegal, revenue-raiser.

Since the council has become dependent on milking the ratepayers to fund their own pensions, they have no incentive to provide any accurate audit of the actual costs of water delivery.  According the city's internal review (not conducted by CPAs in accordance with any GAAP), the true costs of delivering the city's water hovers somewhere around 6.7 % of the total cost rather than the previously-assumed 10 %.  This 6.7 % includes the costs that city pays to itself to rent office space in buildings that the city owns (huh???).  Accepting the generous 6.7 % figure, the city has overcharged water users by about $27,000,000.00 since 1997.  This money has been diverted from its intended purpose (maintaining and rebuilding our crumbling infrastructure) and redirected into the pockets of the city's leaders and public employees unions.

Something We Can All Agree On

Liberals and Conservatives, Progressives and Libertarians can all agree that Fullerton needs a change at the top.  Our police department has abused our most vulnerable citizens with impunity.  Spending is out of control while critical infrastructure crumbles.  The elected leaders continue to line their own pockets with generous pensions while the ratepayers are bilked on water fees.  Our representatives on the City Council have been bought and paid for by public employees' unions.  They work for their union bosses, not for us.

On June 5, vote for change.

The Ins and Outs of the Insanity Defense

Itzcoatl Ocampo has dominated the headlines here in Orange County since his arrest on January 13. Ocampo, 23, is suspected in the stabbing deaths of 6 people, including 4 homeless men.  He is a former U.S. Marine who served one tour of duty in Iraq.

Based on some of the statements that he made to investigators immediately following his arrest, legal experts are predicting that his defense team will argue that Ocampo was legally insane at the time he committed the murders, and therefore not guilty.

The "insanity defense" is often misunderstood and rarely successful, making it perfect fodder for another one of my ever-enlightening blog posts.

The idea that a criminal defendant could be found "not guilty" based on some cognitive defect has its roots in ancient law.  For our purposes, we'll skip ahead to the year 1843, when modern courts first defined the concept of "legal insanity".  The now-famous case of Daniel M'Naughten involved a Scottish woodcutter who killed an aide to the Prime Minister of England.  At trial, it was determined that Mr. M'Naughten was so mentally ill that he could not be held legally responsible for the crime of murder.  There, the court first introduced a simple but rigid standard that would be used to determine whether a suspect was "insane" or just weird.

The M'Naughten Rule laid out 2 grounds under which a defendant could be found to be legally insane.  If, at the time of the offense, the defendant a) did not understand that the act was wrong, or b) did not appreciate the nature and quality of his acts, then he was insane.  Pretty straight-forward and highly rigid.

The M'Naughten Rule remained the standard by which sanity was determined for about 100 years.  By the 1950s, though, advances in medical sciences and psychiatry led legal scholars to loosen the definition of insanity.  Under what came to be known as the Durham / New Hampshire Rule, a defendant could be found insane if his actions were the "product" of a mental illness or defect (that the criminal behavior would not have occurred but for the mental defect, even if the defendant fully understood the nature and consequences of his acts at the time he committed them).  This shift threw open the doors to a whole new class of individuals who were suddenly considered "insane" under the law.

The Durham / New Hampshire standard remained largely in effect from the 1950s-1980s, until a young man named John Hinckley shot an old man named Ronald Reagan.  At Hinckley's trial, it was determined that he suffered from a number of psychotic delusions, but also that he understood the nature and quality of his acts and that shooting U.S. presidents was bad.  Under the old M'Naughten Rule, he would have been convicted because he did not meet either of the criteria for insanity under that standard.  Under the new Durham / New Hampshire Rule, however, Mr. Hinckley was clearly insane because the attempted assassination was the "product" of his delusions.  John Hinckley was found "not guilty by reason of insanity".  Hinckley was committed to a psychiatric hospital, where he remains to this day.

Hinckley's acquittal caused a huge backlash against the Durham / New Hampshire Rule, which was perceived as too lenient towards defendants.  Since 1984, most states have moved back to something more resembling the old M'Naughten test.  In California, for instance, the burden of proof is now on the defendant to prove by a preponderance of evidence "that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense" (Penal Code section 25).  Juries are further instructed that they may consider any of the defendant's behavior before, during and after the commission of the offense as tending to show the defendant's mental condition at the time the crime occurred.  For example, if a defendant ran from police, juries may consider that behavior as evidence that the defendant understood what he did was wrong.

Ocampo's trial will be an interesting one for anyone interested in the mechanics of an insanity defense.  His defense team will try to show that their client was so damaged and detached from reality, possibly due to his experiences in Iraq, that he could not understand the wrongness of killing strangers.  The fact that each victim had been stabbed 40-50 times suggests that the defendant was, in fact, a truly damaged individual.

The defense of insanity is extremely unlikely to succeed in this case, as the defense team must understand, for several reasons.  Chiefly, prosecutors will show that Ocampo meticulously planned each killing.  He stalked his victims and avoided capture for several weeks.  He admitted to detectives that he followed the investigation by reading the Orange County Register and even intentionally drove through a police dragnet as part of his research.  Ocampo was finally captured by a bystander who witnessed the final killing.  The Good Samaritan chased Ocampo as the suspect threw the weapon and shed clothing.  All of these behaviors indicate that he understood the nature, quality and wrongness of his acts.

Some showing of Post-Traumatic Stress Disorder might spare this Marine his life at the sentencing phase, but I'll be shocked if he beats the case by reason of insanity.

Fullerton: Come for the Nightlife, Stay for the Abusive Police

Recently, it seems that Fullerton, CA has become a shining beacon of police corruption.  Kelly Thomas put the town on the map (and the international news), but he's not alone among the long and growing list of those unfortunate enough to cross paths with Fullerton's Finest.

This week, we've added two more chapters to the story that just won't end.

Ofc. Vince Mater was finally charged with vandalism and destruction of evidence for his role in the custodial death of Dean Gochenour.  Gochenour, 52, was arrested around 9:45 PM on April 14, 2011 on suspicion of DUI.  Mater transported Gochenour to the FPD's jail, where the suspect was turned over to jailers for booking.  Some time around 11:30 PM, Gochenour's lifeless body was discovered hanging inside his holding cell.  Immediately upon learning of the death, Mater allegedly destroyed his department-issued Digital Audio Recorder (DAR), which would have contained audio recordings of his encounter with Gochenour.  According the DA's press release, Mater smashed the device against a steel door at the police station and removed the circuit board to ensure that nothing on the tape would ever see the light of day. Mater is not accused of murdering Gochenour and nothing indicates that he was personally responsible for the death.  Rather, it appears that Mater ignored repeated comments made by Gochenour indicating that he intended to kill himself. 

Mater is due in court on March 26 for his arraignment. 

Interesting side note:  Mater had previously been identified by the OCDA's Office as a "Brady Cop".  A Brady Cop is a police officer whose credibility has been so tarnished that he cannot be relied upon to testify truthfully at trial.  Once an officer is tagged as a Brady Cop, his or her value is basically reduced to that of a paperweight with a generous pension (and a gun).   

Our second story of the week actually involves an LAPD officer who made his home in Fullerton, presumably because of town's affinity for crooked cops.  Sgt. Joshua Jinwook Chong, 41, is facing a felony charge for making criminal threats against an ex-girlfriend, as well as two misdemeanor charges related to making harassing phone calls. 

Salvador Hernandez of the OC Register writes:

According to prosecutors, Chong sent several text messages to the woman on Oct. 17, 2011, in which he threatened to kill a male friend of hers. Later that night, he called her and allegedly threatened to kill her.


The woman decided to stay at a friend's home, and Chong is accused of calling her more than 25 times on Oct. 17, 2011, and the following day.

The woman reported the incident to the California State Fullerton Police Department, and Chong was arrested the same day.

Chong is out of custody after posting $50,000 bail.

...and Fullerton's proud history of police corruption grows a little longer.  Stay tuned for updates as they become available.  

Turd Stew Clarity on the Way?

It's been an exciting couple weeks in the world of medical marijuana.  I've been so busy trying to save the world that I've neglected some of these updates.  Well, here they are:

As previously discussed, California's medical marijuana laws (affectionately referred to on this blog as "turd stew") are a jumbled mess of inconsistent, contradictory and nebulous codes and statutes.  While this author strongly supports ending all marijuana prohibition, it has become increasingly clear that the MMJ system here in the state is in serious need of some urgent legislative attention. 

To recap: California voters overwhelmingly approved Prop. 215 back in 1996.  That measure allowed seriously ill Californians to use, possess and cultivate their own marijuana with a doctor's recommendation or approval.  A few years later, that law was expanded upon with SB420.  SB420 allowed for the creation of patient collectives, whereby groups of MMJ patients could pool their resources and skills to help each other gain access to their medicine. 

Since the passage of SB420, storefront collectives have sprouted like weeds (pun intended), creating a whole new set of unintended consequences and unforeseen legal issues.  Interestingly, SB420 makes no mention of the word "dispensary".  The authors of SB420 never foresaw storefront retail outlets opening in such concentrations.  They could not have imagined the multi-billion-dollar industry that medical marijuana has grown into. 

Cities and counties have grappled with how to control these new dispensaries using their zoning powers.  Court battles have raged between municipalities and patient collectives.  Recently, the feds have joined in the proverbial fray using the DEA to raid local pot shops and to threaten owners of buildings who lease space to MMJ dispensaries. 

In late December, CA Attorney General Kamala Harris sent a letter to the state's legislature asking for clarification on the legality of the state's hundreds (if not thousands) of storefront marijuana dispensaries.  Even California's top attorney doesn't know whether or not state law allows for the operation of storefront marijuana retail centers.  If she can't even wrap her head around the law, there's not much hope for the rest of us. 

In the last week, the CA State Supreme Court has agreed to hear 4 cases related to the unresolved legal issues surrounding medical marijuana.  Their decisions could finally grant some clarity to the area, or they could muddle things even more than they're already muddled. 

First, the court has agreed to hear an appeal out of Riverside.  The Riverside County Board of Supervisors voted some time last year to ban all MMJ dispensaries in the county.  Plaintiffs are a group of dispensary owners who are challenging the authority of municipalities to issue such blanket prohibitions. In a related case, plaintiffs in Upland are challenging a local ordinance there that mimicked the language of the Riverside statutes.

The State Supreme Court has also agreed to take on the Pack decision, previously discussed on this blog.  In Pack, a state appellate court struck down Long Beach's licensing system that the city used to regulate local dispensaries.  There, the lower court struck down the city's entire licensing system, finding that Long Beach had no authority to sanction an activity that was illegal under federal law. 

Finally, the High Court will review a lower court's ruling that tossed out a lawsuit brought by an individual against the City of Dana Point.  In that case, a medical marijuana user brought suit against the city for interfering with his access to his medication.  The trial court initially dismissed the case, finding that individual medical marijuana users lacked "standing" to sue, and that only a dispensary owner could bring such a claim.

Stay tuned for updates! It looks like 2012 is going to be an exciting year for medical marijuana law.

In bold defiance of SOPA and PIPA, photo stolen from the LA Times. 

Introducing SoCal's Newest Law Firm

I'm proud to announce the foundation of SoCal's newest law firm, The Law Offices of John W. Bussman.

After a couple great years of service at Rizio & Nelson, including a stint heading up that firm's criminal department, I've decided to hang a shingle and venture out on my own into the exciting world of criminal defense practice.

I thank Rizio & Nelson for taking a chance with me over the past couple years, as well as for their continued support.  Our firms will continue to work closely together and I will continue to recommend them very highly to friends and family.

The Law Offices of John W. Bussman has convenient locations in the counties of Orange, Riverside, San Bernardino and Los Angeles.  Our experienced, local attorneys handle all criminal matters, including DUI, drug crimes, violent crimes, fraud / identity theft, sex offenses and probation violations. 

Don't go it alone.  The criminal justice system can be overwhelming.  If you or a loved one is accused of a crime, our attorneys will stand by your side through this difficult time.  We will do everything within our power to help resolve your case on the most favorable terms possible.

If you're under investigation for a possible crime, contact us BEFORE the situation gets out of control.  We will work with investigators and prosecutors to try to resolve the matter without the filing of criminal charges.
If you or a loved one has already been convicted of a crime, ask me about cleaning up your criminal record with an expungement.  We can evaluate your case before we accept your money to help you determine the likelihood of success. 

We offer affordable payment plans for any budget.  Call for a free consultation. 

(714) 505-2468
(951) 683-4613
(909) 885-8090
(562) 464-0048

The Wild and Wonderful World of Jury Nullification

If you've ever been fortunate enough to serve your civic duty as a juror, you've probably sat through hours of meticulously written jury instructions.  Jury instructions, as previously discussed on this blog, are painstakingly detailed directions read by the judge to the jury, guiding them on all aspects of the relevant law that they are to consider in rendering their verdict.  The instructions you heard probably defined various legal terms, outlined the elements of specific crimes charged, and explained the various factors that jurors may / must consider before making their decision.  You probably heard a layman's breakdown of "probable cause", "reasonable foreseeability", "exigent circumstances" and "specific intent".

What you probably didn't hear were the words "jury nullification"...until now. 

"Jury nullification" refers to the traditional power of juries to render a "not guilty" verdict, even when they believe that the defendant committed the crime charged and they believe that the defendant has no legal defense to that charge.  According to Prof. Paul Butler of George Washington University, "The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished".  Think of the movie "A Time to Kill": some bad guys commit unspeakable crimes against a little girl.  The little girl's dad (Samuel L. Jackson), extrajudicially disposes of said bad guys.  Samuel L. Jackson is put on trial for murder.  The jury believes that he killed the bad guys and that he was legally sane at the time he committed the killings.  Nevertheless, they find him "not guilty".  This is jury nullification. 

Jury nullification has historically been put to all kinds of uses, other than simply creating compelling story lines for Matthew McConaughey movies.  The refusal by jurors to convict their neighbors for alcohol-related crimes helped end booze prohibition.  It was also used by all-white juries of the Deep South to insulate the Klan from legal repercussions during the "Reign of Terror" after the Civil War. 

Today, there is a growing movement among drug policy reformists to educate jurors about their right to nullify.  Activists have mobilized to spread the word to prospective jurors that nullification is an option, even if the judge does not include that instruction.  One such activist, Prof. Julian Heicklen, is currently awaiting trial on charges of jury tampering after he stood outside a Manhattan courthouse lecturing passersby on the issue.  The aforementioned Prof. Butler has advocated on  behalf of jury nullification as a means of circumventing draconian marijuana laws. 

Former Baltimore Sun reporter David Simon (perhaps best known for his contributions to HBO's "The Wire") has also joined the chorus of those calling for nullification in drug cases. In a piece written for Time Magazine, Mr. Simon stated:

"'A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,' wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. … It doesn't resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.

"If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens."

Activists have achieved some measure of success in their efforts.  Last year, Montana prosecutors were forced to dismiss a marijuana case after 5 of the 12 jurors indicated that they would not vote to convict under any circumstances.

The Drug War is not grounded in logic, reason, common sense or sound public policy.  Elected officials from both sides of the aisle are content to stay the course while the nation squanders more resources and lives on the failed social experiment called "prohibition".  If our leaders are unwilling or unable to correct these flawed laws, then our jurors must.  If you're called upon to serve as a juror in a drug case, remember that you always have the right to nullify.  As a juror, our society vests enormous power in your hands.  You have the opportunity to right a wrong.  Use that power wisely and vote to acquit. 

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.