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Domestic Violence Defense: The Modern Criminal Justice Approach

Posted By admin 2017-05-24 19:55:39

In an era of newfangled statutes, complex appellate holdings, and specialized prosecution units and courtrooms, domestic violence cases have become extremely complex. In California, these cases are prosecuted aggressively and with increasing frequency, even when there are no visible injuries and/or no history of violence between the parties. Unfortunately, misinformation about the realities of domestic violence investigations and prosecutions abounds in our culture, and prevents those accused of this crime from protecting themselves and their rights.

The thinking about domestic violence has changed substantially in recent years. Just a couple of decades ago suspected abuse within an adult relationship or family unit was largely viewed as a private issue. However, in contemporary American society, domestic violence is considered a matter of public concern that is to be dealt with through the use of social service organizations and through criminal prosecution. Several high-profile instances of domestic violence involving celebrities and other public figures, such as Whitney Houston and Ray Rice, and have added to a growing concern over this delicate issue.

Perhaps the most significant change in criminal justice practice, as it relates to domestic violence, is the so called “mandatory arrest policy.” This rule, which is adhered to by many local sheriff’s offices and police departments throughout the country, mandates that when officers respond to a domestic situation, usually a 911 call, and have a reasonable belief that one or more parties has engaged in domestic violence, they must make an arrest.

In California, while LAPD and LASD do not refer to their protocol as a mandatory arrest policy, when an officer is called to a scene for a domestic violence dispute, the responding officer will always attempt to determine who he/she believes to be the “primary aggressor” and then arrest him/her. If it is difficult to decipher who was the primary aggressor (i.e. both parties have injuries and are pointing the finger at the other), both parties may be arrested.

In years past officers would sometimes act as referees and mediators who would simply separate and calm down intimate partners who were engaged in a heated dispute. They might have even offered a boyfriend or girlfriend a ride to their friend’s house to spend the night. However, officers did not always make arrests unless they suspected that a serious risk of harm existed to someone involved with the alleged incident.

There were, unfortunately, a few situations in which officers made repeated responses to a particular couple, without ever making an arrest, and ultimately one of the intimate partners was badly injured or killed. In an attempt to prevent this from happening in the future, and to protect themselves against negligence lawsuits, officers who receive 911 calls related to a domestic dispute, frequently make an arrest of one or both parties. Similarly, prosecutors who are in doubt about what may have really happened, file domestic violence charges most of the time to avoid a situation escalating later and resulting in more violence or death.

Additionally, certain accusatory hearsay is frequently allowed at trial in domestic cases. For example, if a person calls 911 and screams, “Help! My girlfriend won’t stop punching me,” this statement may be introduced to a criminal jury whether or not the accuser ever takes the witness stand, subject to certain evidentiary limitations. This principle obviously runs directly counter to the constitutional notion that a defendant has right to confront his accusers which is enshrined in the Sixth Amendment Confrontation Clause. However, The United States Supreme Court in the case of Davis v. Washington has said that accusatory hearsay statements may be admitted without violating the defendant’s due process rights as long as the exclamations were “non-testimonial.” That is to say: were the statements made under circumstances objectively indicating a purpose to assist law enforcement with an ongoing emergency? or were the statements made under circumstances objectively indicating a purpose to assist with a later criminal prosecution?

A frequent modern day debate in domestic violence cases tends to center around what statements qualify as testimonial and therefore under what circumstances may a case proceed to trial, and statements be admitted, where the accuser refuses to testify or is otherwise unavailable to testify .

State Governments have also enacted some very innovative laws aimed at detecting domestic violence. In Illinois, for example, the state legislator passed a new law for 2017 that requires salon workers to undergo an hour of domestic violence training when obtaining their professional license to practice. The idea is that abused women may show signs of abuse, like bruises and lacerations, when receiving salon services, and that women make intimate disclosures about their relationships to their favorite salon workers.

Prosecution offices around the country are creating specialized units to go after domestic offenders aggressively. In California, there is a family violence unit within both the District Attorney and the City Attorney Offices. The general rule of thumb is that the DA or CA will not dismiss a domestic violence case, once filed, even if the alleged victim no longer wishes to prosecute the case. The principle here is that no matter what the alleged victims want, the state will go forward with the criminal charges. Contrary to popular belief, once domestic violence charges have been filed, the alleged victim cannot “drop the charges.” It is only the state prosecutorial agency who can choose to dismiss the case or to pursue the case.

Moreover, many jurisdictions have created domestic violence courts that deal only with crimes involving intimate partners. In these newfangled courts, the Judge, probation officers, and prosecutors all deal especially with domestic violence offenders. These courts are designed to immediately stop ongoing violence, provide support to victims, and to rehabilitate offenders through intensive counseling services. One of the most startling developments in these courts are strict bond condition orders that require family and household members to stay away from each other and even, at times, stay away from their own homes while their criminal case pends in court.   In California, there are not separate domestic violence courts; however, a criminal protective order is issued in all domestic violence case at the very first court appearance which prohibits the defendant from having contact with the alleged victim.

As one can see, the criminal justice response to suspected domestic violence situations has changed dramatically over the last several years. Law enforcement officers, prosecutors, legislators, and Judges are dealing with allegations of domestic violence far more harshly than in decades past. If you or a loved one have been accused of a domestic violence related crime it is absolutely imperative that you employ the services of a qualified attorney immediately who has experience in navigating these murky waters.

Attorney Karen L. Goldstein has been successfully defending people against domestic violence charges for 14 years.

Call (888) 445-6313 for a free and confidential consultation to speak with an experienced domestic violence lawyer today.

 

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A Tiered Sex Offender Registry Senate Bill 695—Changes in Sex Registration Law Coming to California and Implications for Sex Crime Attorneys

Posted By admin 2017-05-17 23:22:07

California has some of the strictest sex offender laws in the nation.   Whether a person has been convicted of misdemeanor indecent exposure, felony possession of child pornography, rape, or felony child molestation, all convictions which carry sex registration, require registration for life.

This means theoretically that someone convicted of sexually assaulting a small child, or producing thousands of images of child pornography, would be required to register for the same length of time as someone who ran through a park and exposed himself inappropriately to another person.

California Penal Code 290 contains the current version of California sex registration laws.

Under a new proposed bill, Senate Bill 695, three tiers of sex registration, requiring a different time period of minimum registration, would be created depending on the type of sex conviction.

Tier 1 registration would last for a minimum of 10 years and apply to certain specified sexually-related misdemeanor offenses and non-violent, non-serious sexually-related felonies.

Tier 2 registration would last for a minimum of 20 years and apply to certain specified felonies enumerated as a serious or violent felony (Cal Penal Code 667.5(a) or 1192.7(c)) or otherwise specifically enumerated in the new bill.

Tier 3 would last for life and would apply to repeat offenders who were convicted of a subsequent violent sexually-related felony as specified under 667.5 (c) (after being required to register for a prior conviction) or after the person was deemed a sexually violent predatory and committed to a hospital.

Defense attorneys, and District Attorney’s alike, have long advocated for a more nuanced and tiered sex registration system in California to account for the seriousness of the alleged conduct.   This legislation seems like a step on the right direction. However, it is unclear whether this bill will pass in whole, in part, or with substantial modifications.

Organizations such as the California Sex Offender Management Board CASOMB have weighed in with proposed changes to the bill. Undoubtedly, given the sensitive nature of this topic, it will be long road ahead before any real change is realized.

Perhaps, just perhaps, California will be moving towards a slightly more reasonable, and less draconian, penalty structure for those convicted of sexually-related offenses.

Here is a link to the proposed legislation: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB695

The Law Offices of Karen L Goldstein dedicated a substantial portion of its practice to defending against sexual offenses. If you would like to speak with an aggressive and compassionate sexual assault lawyer, please call (888) 445-6313 for more information.

 

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Computer Hacking & The Law: A Basic Introduction to the Computer Fraud and Abuse Act

Posted By admin 2017-05-08 00:05:19

In the wake of the Russian computer hacking scandal, there is a renewed concern amongst the American people and the federal government over the issue of unauthorized invasions into exclusive computer servers. Both the CIA and the FBI have confirmed that intelligence agencies of the Russian government illegally intruded into the digital networks of the Democratic National Committee with the aim of improperly influencing the 2016 presidential election in favor of their preferred candidate, Donald Trump. Computer crimes are becoming increasingly common in America as the vast majority of commerce is transacted at some stage through the use of a computer. Large amounts of valuable personal and financial data, both public and private, are stored digitally as well. Moreover, the ability to conduct illegal activities through the use of digital means is now frighteningly easy as even very young or otherwise unskilled persons can simply download and effortlessly navigate basic hacking applications online.

The federal criminal statute pertaining to hacking is the Computer Fraud and Abuse Act (CFAA) which was enacted by congress in 1984. The statute, 18 U.S.C. § 1030, has since been amended numerous times over the last three decades including a significant expansion under the Patriot Act in 2001. The CFAA criminalizes several types of digital behaviors. For example, under the CFAA, it is a crime for an individual to knowingly: 1) accesses a computer without authorization; 2) to obtain information that has been determined by law to require protection against disclosure for national defense or foreign relations; and 3) to willfully transmit this information to a person who is not unauthorized to receive it; or (4) to fail to deliver it to the intended officer or employee.

 

Other examples of criminalized behavior include: accessing confidential financial records such as bank statements or credit reports with a computer, interfering with the Government’s ability to use their various computer networks, and re-configuring or re-programming of a system to function in ways not facilitated by the owner, administrator, or designer. The CFAA also criminalizes accessing the private computer networks of individuals, companies, or other organizations, and then extorting these individuals/companies for money by threatening to disable the network or destroy the data contained within. All of the above examples are generally prosecuted as federal felonies.

 

The penalties for engaging in the computer hacking activities described above can be very severe. Most of the hacking crimes carry a federal prison sentence of one, five, ten, or even twenty years depending upon the severity of the individual facts. Large fines and orders for restitution are also imposed on computers hackers convicted in federal criminal court. Obviously anyone accused of committing a computer hacking related offenses should employ the services of a qualified defense attorney immediately.

 

Although in the past, federal authorities have only prosecuted hackers when their activities substantially impact foreign affairs, interstate commerce, or federal government computer systems, under the new administration it is unclear how these crimes will be prosecuted

 

State authorities have also enacted anti-hacking legislation. For example, California has enacted the California Comprehensive Computer Data Access and Fraud Act. Under California Penal Code § 502, a person can be prosecuted for “hacking” or any type of unauthorized computer access and fraud and face up to three years in state prison. Further, if a computer network is hacked in California, not only can the attackers be criminally prosecuted by the state, but the alleged victim can sue the alleged perpetrators for a monetary judgment.
As more and more of our political, financial, and social lives are conducted on computers the danger for unauthorized invasion into these realms by hackers has increased proportionally and also the danger of false accusations pertaining to digital behaviors. While, the Computer Fraud and Abuse Act combined with state and local laws against hacking provide a substantial deterrent to potential cyber criminals, there are still a myriad of easily downloadable hacking tools that can be found and used by anyone with an internet connection. Moreover, if you are being investigated or accused of accessing data in violation of state or federal law, you should speak with a qualified attorney as soon as possible to best protect your rights against any type of alleged cyber crime.

By: Law Offices of Karen L. Goldstein, (888) 445-6313.

 

 

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The Sanctuary Defense: New Policy and Possible Pitfalls

Posted By admin 2017-04-18 20:26:14

The Trump presidential administration has publicly announced on numerous occasions that they intend to intensify their efforts to identify and to deport illegal aliens currently living within the United States, even those who have committed no violations of the law other than living in the US without legal authority. In March of 2017, Attorney General Jeff Sessions unveiled plans to expedite the deportation of illegal immigrants who have been convicted of crimes and are being housed in federal correctional facilities.

In response to this assault on undocumented immigrants, many communities have openly labeled themselves as “sanctuaries,” meaning they offer some measure of protection to illegal aliens by limiting their cooperation with federal authorities. Under the anti-commandeering doctrine announced by the U.S. Supreme Court in 1997, states and localities are not obligated to aid the federal government in enforcing a federal scheme like national immigration proceedings. Nevertheless, in January of 2017 president Trump issued an executive order threatening to withhold federal funds from so-called “sanctuary cities.” The legality of Trump’s order is tenuous at best, but it is another clear signal that his administration will use any method they can to attack illegal immigration, even if that means going after persons with legal status who merely protect illegal aliens from federal detection.

According to federal criminal law, specifically 8 U.S. Code § 1324, Bringing in and harboring certain aliens, any person who, “…knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation,” is guilty of a serious federal crime. The penalty for this felony can be up to five or ten years in prison depending on the facts. And while prosecution of these federal felonies used to be somewhat uncommon, it seems that under the leadership of Attorney General Jeff Sessions, U.S. Attorneys Offices across the country may receive new guidance and directives which advise them to take a closer look at these type of federal felonies.

Under the same statute anyone who simply conspires to hide illegal aliens from federal authorities or aids or abets in the process of hiding illegal aliens from federal authorities is also breaking the law. The same steep penalty of potential federal prison also applies. This provokes an important question: can religious organizations be prosecuted for offering “sanctuary” to undocumented immigrants?

Historically, places of religious worship have been a safe haven for vulnerable populations, such as illegal immigrants. Still today many churches, temples, synagogues etc. offer food, water, comfort, and shelter to desperate people, a vital service for any civilized society. Generally speaking law enforcement officials have afforded a certain level of respect to religious organizations that provide such unconditional kindness to any and all who seek their refuge. Many undocumented persons have sought the aid of religious organizations especially when they fear detainment and deportation by federal authorities. In 2011 the Department of Homeland Security (DHS) issued a policy document referred to as the “Sensitive Locations Memo.” In it, DHS describes how and to what extent Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) can execute their enforcement actions in so-called “sensitive locations” such as places of worship. The general policy is that ICE and CBP should not disturb religious places of worship, and any enforcement actions in these locations requires prior approval from the appropriate supervisory official. The memo does allow for certain necessary actions in sensitive locations under emergency situations referred to as “exigent circumstances.” Moreover, the new presidential administration may soon amend or completely rescind the Sensitive Locations Memo. Further, this memo is already being violated in sanctuary cities across the country, such as Los Angeles, where ICE agents are appearing in courthouses to detain undocumented aliens, who have court proceedings, and who have done nothing wrong aside from being undocumented in the first place.

In keeping with the historical respect of places of worship, there is a special legal exception to the laws against harboring illegal aliens that is afforded only to religious organizations and its members; the sanctuary defense. The special immunity of the sanctuary defense is only applicable to very specific religious members under strictly limited conditions. According to subsection (C) of the Bringing in and harboring certain aliens statue, It is not a violation of the law, “for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.”

According to the explicit language of the statute, the sanctuary defense only applies to the harboring and transportation of illegal aliens who are working within the religious organization as a minister or missionary. Therefore, actively hiding undocumented immigrants from federal authorities, who are simply members, not ministers, is not a protected behavior under the sanctuary defense. Moreover, a “bona fide nonprofit religious organization” is defined as an organization exempt from taxation as described in the Internal Revenue Code of 1986. Therefore, if your organization is not a recognized 501(C)(3) you should not expect to be covered under the sanctuary defense. Further, the undocumented persons must be volunteers, not paid staff of the religious organization. Although the illegal alien missionary may be provided basic living necessities such as shelter, food, and medical treatment, they cannot be provided an additional wage or salary.

Note that the law does not require that the religious organization or its members to publicly proclaim themselves to be a “sanctuary” group. In fact, announcing intentions to potentially use the sanctuary defense may be counterproductive as it may alert federal authorities to the location of illegal aliens and also were the sanctuary defense to fail, such an announcement helps prove one of the requisite intent elements of the criminal statute, under 8 U.S.C. §1324, by showing authorities that the organization or people involved “knowingly” harbored undocumented aliens. Unfortunately, places of worship who publicly declare themselves to be “sanctuary” organizations are not afforded any additional protection from prosecution under the law.

The laws surrounding sanctuary and the potential use of the sanctuary defense are extremely nuanced and complex. Any organization seeking to potentially act as a sanctuary should consult with an experienced attorney to make sure they understand all the potential risks, including the increasingly real risk of criminal prosecution.

 

Karen L. Goldstein is a Los Angeles criminal defense lawyer who has been dedicating her time to learning how to provide pro-bono legal services involving sanctuary defense.  (888) 445-6313. kgoldstein@klgcriminaldefense.com

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MS. GOLDSTEIN NAMED TO SUPER LAWYERS RISING STAR LIST IN SOUTHERN CALIFORNIA FOR 2017

Posted By admin 2017-04-05 19:39:44

Karen L. Goldstein has been selected to the 2017 Southern California Rising Stars list for Criminal Defense. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Learn More MS. GOLDSTEIN NAMED TO SUPER LAWYERS RISING STAR LIST IN SOUTHERN CALIFORNIA FOR 2017

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