June 27, 2012

Writs of Habeas Corpus

A writ or petition for habeas corpus in California is a defense motion to try to convince the courts that a person is being wrongfully imprisoned.

We get calls frequently from family members and loved ones asking if habeas corpus may be an avenue to getting someone released. It can be, but usually only in very limited circumstances.

There are two main considerations in evaluating the viability of a habeas corpus petition: timing and grounds.

In terms of timing, a habeas petition is only timely when all other remedies have been exhausted. Basically what this means is that the appeals process is over. If it is a recent conviction and there is still an opportunity to file an appeal, courts will want a prisoner to take the appeals route before taking the habeas route.

Second, there must be grounds for the motion ... usually a new issue that did not exist at the time of the appeal. This typically would be significant newly discovered evidence, or a change in the law that decriminalizes the conduct.

As you can see, the circumstances for a successful habeas petition in California are fairly narrow. But when the circumstances are right, it can be an effective way to serve justice by getting a wrongfully imprisoned person out of custody.

June 19, 2012

Polygraph Exams - For the Defense?

When TV cop shows portray polygraph exams, it’s usually when police interrogators push a suspect to take a lie detector. “OK Sam, if you want to stick to that story, how about sitting for a lie detector test right now here at the station?”

Increasingly, however, polygraphs are being used by criminal defense lawyers to try to exonerate factually innocent clients.

Consider an example. A client is accused of sexually molesting a young girl. He insists to us that the allegation is false. We have him sit for a private polygraph exam where we ask the question “Did you ever touch [the accuser] for sexual purposes.” He answers “No.”

If the polygraph indicates he’s being truthful, we take the report to the D.A., who may well be persuaded to dismiss the case altogether (though prosecutors sometimes want the client to sit for a second polygraph with the police).

If the results suggest the client is being deceptive, we simply never disclose that a lie detector test was administered.

The exams can be pricey, to the tune of $1000 and up. But we use only former law enforcement and FBI polygraphers, ones who carry a lot of credibility with the prosecution.

Aside from the cost, some clients do fail the exam. Even when they pass, the results are not admissible in court and don’t guarantee that D.A. will respond by dismissing.

But when we get a successful polygraph reading from a highly credible examiner, the chances are very high the client’s case will get dismissed.

Prosecutors are zealous, sometimes overzealous, but they don’t want to get innocent people convicted. And this is often the most effective way to convince them of our client’s innocence.

June 11, 2012

California Budget Crisis Results in Increased Parole Releases

The number of state prison parolees freed from supervision under California parole law has dramatically increased in recent months. This is result of a new law that allows parolees who were last arrested for a non violent or non sexual offense, to be discharged from parole supervision in as little as six months. They were previously required to wait at least one year before they could be taken off parole.

In April 2012, approximately 8,500 parolees were taken off of parole supervision. Only 1,300 were released in March by contrast. The increase in the amount of convicts being taken off parole is a direct response to sharp state government budget cuts in California and the widespread outcry against prison overcrowding in California.

Once a parolee is taken off of parole supervision, a parolee will receive fewer rehabilitation services such as counseling, drug intervention, and housing assistance. These services are designed to ease the parolee’s transition back into society. Taking a parolee off of parole supervision also limits the ability of police to monitor the parolee’s conduct.

As a result, many law enforcement officials feel that this drastic increase in parole release will result in recidivism (repeated commission of crimes by released convicts). While California parole law is known to change rapidly, the State’s budget crisis will not be a quick fix. Thus, law enforcement officials are expecting an even greater increase in parole releases in the latter half of 2012.

June 7, 2012

Jury Deliberations - A Tense Moment for Criminal Defense Lawyers

As I type this I am sitting at a Coffee Bean across the street from the East LA Courthouse - I have just finished the closing arguments in a child sex abuse case and am anxiously awaiting a verdict. Although I have been through this process dozens of times, it never gets any easier. Before leaving the courtroom I gave the court clerk my cell phone number and told him I would be across the street waiting. The anticipation of a verdict always makes me jump a bit whenever my cell phone rings.

My client was charged with 4 counts of "Annoying or Molesting a Child", Sexual Battery, and Child Abuse. It has been a long 5 days of testimony and argument. Last week I faced a particularly tough time when the alleged victim in the case testified and broke down crying on the stand. I had already known I would have a tough time doing my cross examination of her given the fact that she was a child and I did not want to appear to the jury that I was attacking her. I had hoped that she would not cry on the stand, but she did.

As trial progressed, I felt that the more time that passed, the more far removed the jury would be from a potential emotional reaction to her tears. However, I knew in my closing argument that I could not avoid it and that it had to be addressed delicately. In child sex cases it is often difficult for both the prosecutor and the defense - the prosecutors often proceed on cases with no physical evidence and long periods of time before the alleged abuse is reported, as in this case. Similarly, the defense has to be careful not to attack the child witness and "re-victimize" them, but still do a good job of representing their client and exposing the weaknesses in the prosecution's case.

Some of the charges in this case are difficult to prove because they are what is known as "specific intent" crimes - meaning the prosecutor must prove beyond a reasonable doubt that my client had a specific intent - here an abnormal sexual interest or sexual gratification and that he had this intent in mind when he allegedly touched or spoke to or with, the alleged victim in this case. Additionally these charges are very serious - although they are all misdemeanors as charged, they require lifetime sex registration. This means that if convicted, the court MUST order the defendant to register as a sex offender with his local police station. He would not be allowed within 100 yards of any park or school. In my opinion, this is a life sentence.

It is now 4:30 and the clerk just called me to let me know that the jury had not yet reached a verdict and were ordered back for tomorrow morning. In my opinion, this is a good thing. In the past two trials that I have done, lengthy deliberations have resulted in one not guilty and one hung jury. I tried my best - employed the right strategy, put it all out there during closing argument - now I just have wait. Fingers crossed!

June 5, 2012

What is Internet Fraud?

There’s a lot of talk these days about the crime—or the phenomenon—of internet fraud. Many people assume there is a specific California law of internet fraud.

But in reality, there is no specific statute or crime in California that goes by the name “internet fraud.” Instead, there are a variety of state and federal laws that punish various forms of fraudulent activity, and use of the internet just happens to be the medium by which more people are committing these crimes.

A good example is the crime of wire fraud. Suppose Sarah puts up a website where customers can make credit card payments in exchange for the promise that pieces of jewelry will be sent to them. The whole thing is a scam. Sarah takes their money via PayPal but never intends to deliver the merchandise.

This would constitute a classic example of what we think of when we hear the term internet fraud. Sarah would probably be prosecuted under federal wire fraud laws in California, and possibly state grand theft charges. But the same would be true if Sarah had obtained her orders through telemarketing. The use of the internet as medium doesn’t put it in a separate and distinct category of crime.

June 4, 2012

Is it Health Care Fraud to Bill Insured Patients More?

Generally speaking, California health care fraud laws make it a crime for providers to charge insured patients more for the same treatment than the uninsured. An example is charging insureds a “no-show” fee for missed appointments but waiving that charge for patients paying out of pocket.

The rationale is that the system doesn’t want doctors to try to squeeze insurance companies by creating additional, superfluous or excessive charges just because they are billing a “deep pocket.” Therefore providers are required to set the same cost standards for insureds and non-insureds alike. See People v. Singh, (1995) 37 Cal.App.4th 1343, 1372.

But it’s a gray area when doctors waive or discount fees for non-insureds simply as a charitable act. After all, doctors owe a sacred duty to care for the ill. We would want to give them discretion to waive or discount their fees in certain cases to make health care affordable to needy and uninsured patients.