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Category: State Crimes in California

California Bail Reform Act (Senate Bill 10) Will Not Protect Against Preventative Detention

Posted By admin 2018-08-27 01:50:51

The California Bail Reform Act, Senate Bill 10, proposes to eliminate the bail fee system, but could replace one harmful system with another. The money bail system must be stopped: it undermines the presumption of innocence, leads to false guilty pleas, and disproportionately affects racial minorities and indigents. However, Senate Bill 10 is unlikely to promote pretrial justice and proscribes procedures that could violate due process.

First, Senate Bill 10 excludes broad categories of people from release from custody pre-arraignment. This includes low-level violations if the person has a pending case, and persons arrested for restraining order violations (even if the arrest turned out to be wrongful or the restraining order invalid). Further, the bill would give local courts practically unlimited power to carve out other exclusions from release, resulting in county courts having the ability to detain practically anyone accused of a crime. These overbroad categories render meaningless the presumption in favor of releasing all but a specified few defendants before trial.

Second, the bill provides unfettered discretion for judges at arraignment to order preventative detention. For instance, a court would be able to order detention if the defendant has a pending case or is on probation, regardless of how minor the previous and new charges are. The new system would allow judges to inappropriately hold people in preventative detention without having to set a bail amount.

Third, the incarceration decision is influenced by profile-based risk assessment tools that are not objective assessors of risk. These risk assessment tools take limited information about an individual—including arrest and conviction history—to create a profile, then make a statistical estimate of the likelihood that individual will get re-arrested or miss a court date based on data about other people with similar profiles. These tools tend to reinforce the system’s ingrained biases and lack transparency.

The risk categories required in the proposed legislation are policy choices, meaning that whoever controls the implementation of the tools can decide how broad to make each category. This adjustability of scoring is significant given the proposed scheme in which anyone labelled “high risk” cannot be released pre-arraignment and will have a presumption of preventive detention.

Fourth, the bill would make the probation department responsible for recommending release or detention and conditions of supervised release, while allocating supplemental funding for probation departments depending on how many people they supervise and what level of supervision.

Senate Bill 10 must be reformed to provide for community oversight. It should also include rules requiring judges to look at each defendant’s unique circumstances, and limit the power of county courts to create overbroad categories for presumptive detention.

In the meantime, defense lawyers should continue to thoroughly interview clients about their backgrounds and present detailed, individualized submissions on bail. For instance, if a client falls within a high-risk category for absconding, the defense lawyer should be prepared to show the court that this client has never missed a court date and has strong ties to the community.

Thorough preparedness will also strengthen a client’s chances at release. In my practice in Los Angeles, I prepare both written and oral submissions whenever possible so that I have already presented my client in a favorable light to the judge before the bail hearing. This upfront work will help ensure the court and prosecution are aware of the factors favoring release in spite of the problems with the new bail system.

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U.S. Supreme Court Will Review the Problematic Separate Sovereigns Exception

Posted By admin 2018-07-10 20:48:09

The United States Supreme Court agreed recently to consider whether to overturn a longstanding rule that allows federal and state prosecutions for the same offense. The cert petition filed on behalf of Terrance Gamble was granted, allowing the Court to decide “[w]hether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

Mr. Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama state had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government from prosecuting a person more than once for the same offense, but courts have long held that this only bars reprosectution by the same sovereign. Put simply, under what is known as the “separate sovereign” exception, the federal government may reprosecute a person after a state prosecution (and vice versa). A defendant can therefore be prosecuted by both the state government and the federal government for the same offense.

My firm in Los Angeles practices criminal law at both the state and federal levels, giving me a unique opportunity to observe how the separate sovereigns exception is applied in California. I have noticed (and been disturbed by) duplicative federal-state prosecutions becoming increasingly common. This trend is in part because of the growing scope of federal criminal law. In addition, I think that states are benefiting from the exception to help fill investigative gaps, or refine legal arguments, that led to exoneration at the federal level. (The same goes for the federal government). Furthermore, the separate sovereigns exceptions appears to be applied more frequently in high profile cases, and/or cases involving serious charges that carry serious social stigma. For instance, the Justice Department recently brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

Mr. Gamble’s case is instructive on why the separate sovereigns exception raises serious constitutional issues and is ripe for challenge. For defendants like Mr. Gamble, the separate sovereigns exception can result in a lengthier time in custody. As a result of the duplicative conviction, Mr. Gamble must spend an additional three years of his life behind bars. This result is incompatible with the text of the Double Jeopardy Clause, and with the original purpose of the Clause and federalism more broadly. As Mr. Gamble’s petition for a write of certiorari explains:

The court-manufactured “separate sovereigns” exception— pursuant to which [Mr. Gamble’s] otherwise plainly unconstitutional duplicative conviction was upheld— is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law.

I agree with Mr. Gamble’s position. The purpose of the Double Jeopardy Clause is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to stigma, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. The separate-sovereigns exception cannot be reconciled with this purpose.

That the separate sovereign exception has drawn scrutiny from liberal and conservative justices alike points to its fundamental unfairness. UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. While I am disturbed that the separate sovereigns exception is being applied more readily, I am optimistic that the Supreme Court will find that the exception cannot be squared with the Double Jeopardy Clause and should no longer apply.

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Field Drug Test Results Found to be Inadmissible in California

Posted By admin 2018-04-29 00:50:27

In California drug cases, the prosecution will often offer chemical reagent test results as ultimate proof of the existence of a controlled substance for the purpose of obtaining an indictment in a Grand Jury proceeding. Until this week, there has been no published California case that has addressed a scientific challenge to the validity of color drug tests. As a criminal defense attorney who specializes in state and federal drug crimes, I understand that police officers often overstate the reliability of color drug test results in Grand Jury proceedings to obtain an indictment. This type of prejudice to a defendant’s due process rights to a fair Grand Jury probable cause determination is difficult to remedy. As a result, indictments are commonly filed in California drug cases where the scientific evidence showing that a substance is an illegal drug is shaky, and certainly insufficient to prove guilt beyond a reasonable doubt.

This week, the Supreme Court of California ruled in People v. Chacon that a Brady violation occurred when the government did not present known information about the unreliability of the Narcotics Identification Kit (NIK), a commonly used color drug test, to the Grand Jury. Specifically, the government failed to present information that NIK kits have in many instances produced false positive results for drugs to the Grand Jury. One officer in that proceeding testified, wrongly, that the NIK test is “100% accurate.” Broadly speaking, the Chacon case discusses the unreliability of the NIK, which police routinely use in field tests to determine if substances are drugs. Although Chacon is a state court decision, federal defense lawyers should apply the findings in this decision to their federal drug cases when a color drug test is used.

A scientifically reliable analytical testing technique should ideally have a high probability of a “true” result, and minimize the probability of a false positive. The Court in Chacon found that the NIK field color tests are not specific because they fail to discriminate between controlled substances and other compounds. As with all color testing that are used for drug identification, it is not uncommon for there to be a false positive. Limitations with color tests include: (1) they are not specific; (2) the possibility of using too much sample, thereby overwhelming the chemical reagent; and (3) contribution to the color change from other components within he sample. For instance, opium, black tar heroin, and samples containing dyes can produce problematic color test results.

The court, in compliance with its gatekeeping role under Sargon, is required to exclude invalid and unreliable expert opinion. In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. The Court in Chacon found that the NIK colorimetric test or any similar color test does not meet the admissibility requirements of Sargon.

Chacon is a very helpful tool for the defense. State and federal defense lawyers should be extra diligent to pursue discovery regarding the reliability of color drug tests used in the field. Those results can help form the basis of suppression motions, including to challenge warrant applications that rely on those field test results to establish probable cause.

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California Supreme Court Upholds a Troubling Arrestee DNA Collection Law

Posted By admin 2018-04-23 01:24:28

As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

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