Striking a Balance in Rape Prosecutions

Rape and childhood sexual abuse are sensitive subjects no matter the setting. In the criminal justice context where victims and society sometimes seem inherently at odds these conversations can become even more difficult. Set against a backdrop of rape culture and feminism which so often feature in this discourse, it can be challenging to present current issues in a balanced yet sensitive manner. No one worth listening to seriously condones sexual assault of any kind; but to victims, who often face unfair and damaging attacks on their credibility, character, and experiences, any discussion of judicial restraint can seem like a direct insult to their undeniably traumatic circumstances. Yet without a balanced system of justice no one, not even rape victims, is better off in the long term. In order to promote the integrity of the system that protects each of us from the misdeeds of our fellow citizens we must at times engage in sensitive discussions regardless of the risks. Senate Bills 926 and 924, which seek to greatly increase the statute of limitations for both rape prosecutions and civil lawsuits alleging damages from rape, represent just such an occasion. In an effort to present this discussion in as neutral a light as possible, we’ll cover both sides of the debate in separate sections and leave it up to you as readers to form your own opinions of the better outcome. Comments will be disabled on this article to prevent abuse.

Statutes of Limitation

Under the law, many, possibly most, criminal charges must be filed within certain closely defined windows of opportunity. An attempt to file charges too late will usually result in dismissal of the case and legal exoneration for the defendant. There are a number of very good reasons to enforce these kinds of limitations on prosecution. Of primary concern is the quality and availability of evidence, both for and against the defendant. Over time, people pass away, witness memory fades, DNA samples degrade, locations are altered, law enforcement officers are promoted or even retire, and both perpetrators and their victims mature and – to the extent possible – move on with their lives. In civil cases, insurance policies expire or are renegotiated based on past performance, businesses books are settled, staff turns over, new investments made and old risks calculated. These lists could go on ad infinitum, but what should be clear is that trying cases becomes increasingly difficult as the facts supporting the case age.

On a more sinister note, allegiances and personal perspectives can also change over time; often dramatically. Lovers fall out, children grow up, employees are fired, and business deals turn sour. While reliable statistics are hard to compile, it is likely that the majority of sexual assault allegations have merit. Whether, in a particular case, the correct perpetrator has been identified, the extent of the offense properly defined, or the factual circumstances accurately recorded; however, is an open question. Unfortunately, these details can, and sometimes are, affected by the personal relationships at stake in a case; individual perspectives can change over time.

To help guard against degradation of the evidence or the possibility of unfairly changed perspectives, statutes of limitation cap the time in which charges must be brought. These limitations serve to provide some measure of finality to society and to protect against abuse of the legal system.

Time to Recover

On the other side of the equation, victims of sexual assault, particularly children, undeniably need time to heal. Medical research suggests that in many cases individuals have difficulty remember the specifics of a traumatic incident, or even that an incident occurred at all. Psychologists tell us that this memory block is a defense mechanism employed by our brains to help victims move on and heal after an attack. To further complicate matters, many victims are stuck in a nightmare of continuing abuse and totally lack any power to seek justice against their abusers. Young children may suffer at the hands of an abuser for years before ever realizing that they can tell someone about the attacks. Such victims may need many years to recover enough to report the abuse to the legal system and sometimes much longer still to fully appreciate the extent of the physical and emotional damage done to them by the attack(s).

A legal system insensitive to this reality will be unfairly stacked against the very people the system is designed to protect. For this reason, unduly short statutes of limitation cut off the possibility of persecution before victims have had a time to get their bearings after an attack or attacks and give perpetrators of sexualized violence a “get out of jail free” pass by virtue of the very abuse they have committed. Striking the right balance isn’t easy.

Senate Bills 926 and 924

Enter the California Senate. Two bills currently under consideration that would dramatically alter the current system of limitations on prosecution and civil lawsuits against perpetrators of sexual violence. Current law gives victims of childhood sexual abuse until their 28th birthday to report the abuse to authorities and until their 26th birthday or three years after the damage from the abuse is recognized medically to file a civil lawsuit. Introduced by Senator Jim Beall, SB 926 and 924 would raise these caps to 40 years old and five years from the discovery of damage from the abuse respectively. This isn’t the first time the Senator has tried for this change. In the last legislative session a similar package of bills passed both houses of the legislature with wide margins enjoying support from both political parties; it was ultimately vetoed by Governor Brown who took the time to write an uncharacteristically long signing statement describing his reasons for the veto.

“there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” given that evidence can be lost, memories can fade and witnesses can become unavailable over time. “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”

There are some distinct differences between the vetoed bill and the current effort including the extent to which the changes would apply to the past and exactly which entities could face the revised guidelines (the new bills are not retroactive and apply equally to both public and private entities) and so it remains unclear exactly how the bills will fare in this session or whether, if passed, they too will face a veto action.

A Jury of Your Peers

On April 25, the California Assembly passed AB 1401 which would allow lawfully present immigrants to serve on state juries. As of this writing, the bill is making its way through the state Senate. While the bill’s ultimate fate is unknown, its mere introduction earlier in April caused a ruckus in the news media and its passage in the Assembly has sparked a firestorm of public opinion. Despite clear language to the contrary, some sources are going so far as to announce that the bill will allow “illegal immigrants to serve on juries”. Just to be clear, it won’t; but scroll through the comments on any of the articles covering AB 1401 and it quickly becomes clear that the bill has ignited a raging controversy over civil rights, immigration issues, and the nature of citizenship itself.

Instead of discussing or arguing about immigration policies, I have decided to provide defendants and their families with relevant information about what the bill’s passage might mean in practice. After some research into the history of the Jury Right, here is what I found.

The right to a trial…

The Sixth Amendment to the United States Constitution opens with the line “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”. Contrary to popular belief, the Constitution says nothing explicit about a “jury of peers”. This latter construction comes not from the document itself, but from later interpretation and public colloquy. However, despite the lack of an express constitutional mandate that defendants be judged by their peers, the sanctity and power of an impartial jury remains one of only a handful of subjects about which the Supreme Court has ever ruled in unanimity. Which begs the question, how is an impartial jury composed and where does everyone get the idea that criminal guilt will be determined by a group of the defendant’s peers?

by a jury…

The notion of using juries to judge criminal guilt was well established in legal practice long before the Constitution was drafted. In fact, the practice traces its roots all the way back to the signing of the Magna Carta in the 13^th Century. Early iterations of the practice were designed more for the benefit of the British royalty than common criminals. However, by the 18^th century Thomas Blackstone was able to pen his famous exposition on the twofold virtue of the jury right as a protection against overreaching by the monarchy. Enshrined in every one of the original 13 State Constitutions, and in all States since added to the Union, this right has always been the core feature of American criminal jurisprudence.

The right to a jury trial reflects a fundamental decision not to entrust the life or liberty of any person wholly to the government. Even an impartial judiciary, it is thought, might at times be swayed by outside considerations making the jury trial a bulwark against many possible miscarriages of justice. In fact, so critical is this right to our criminal system, that without it, we could have no enduring faith in even a single criminal conviction.

Juries work so well because of the high degree of inviolability afforded them under our legal structure. So sacred are the judgments made by juries, that the Supreme Court has unanimously agreed that juries even have the power to find a defendant not guilty against the great weight of the evidence. The entire body of facts in a criminal case is determined by the jury, and no fact decided in a defendant’s favor by a jury is subject to later review.

of peers?

But who makes up the jury pool remains an open question. In years past women, minorities, atheists, and non-landholders were deemed unqualified to sit on juries. Each of these restrictions has since been struck down. However, despite these many gradual improvements, disparities between jury venires and defendants are still rampant. Jury lists, often drawn from voter registration and DMV rolls, represent a largely middle-class group with frequent racial and ideological tilt. Are such juries truly “impartial” as required by the Constitution?

AB 1401

The California Assembly does not think so and AB 1401 represents their attempt to remedy one aspect of the issue. Whether the bill, if passed, will help rather than hurt our justice system remains to be determined.

I remain optimistic that our jury right will ultimately grow stronger as a result of this broadened juror pool. Bear in mind, judges and attorneys do not have to be citizens, perhaps jurors should not either. However, time will be the ultimate judge.

California Prison Reform

Governor Brown challenges California prison reform

For decades, California’s prison system has been out of compliance with basic human rights requirements. Over the last 10 years, the system has been operating near 200% of its design capacity. This severe overcrowding has led to a litany of abuses from grossly inadequate healthcare, to the virulent spread of infectious disease, to a stunningly high suicide rate among inmates. Long under Federal receivership, California’s inmate mental health system is an abject failure. Combined with the rampant use of constitutionally questionable variations on solitary confinement, these failures have played a significant role in California’s inmate suicide rate. With an average of 24 suicides per 100,000 prisoners, the State sits well ahead of the national average of 16 suicides per 100,000 prisoners.

Solitary confinement

Amnesty international released a report in September of 2012 describing California’s practice of caging inmates in solitary housing units (SHUs) as a blatant violation of both the 8^th Amendment’s prohibition against cruel and unusual punishment and international laws on the treatment of humanity. Mental health experts warn that SHUs should be an option only of last resort because even a few days under such conditions cause severe trauma. In 2011, California was host to over 500 inmates housed in solitary confinement for over 10 years; some of them only children when first incarcerated others with significant and well known mental health problems.

Slow legal response

In response to these, and many other issues, a number of human rights organizations filed suit on behalf of prisoners seeking federal intervention. In 2011, after a tortuous legal battle spanning many years, the Supreme Court upheld a lower court decision requiring California to reduce its prison population to 137% of capacity by June 2013. This ruling lead to the current realignment crisis under which the state has been shifting prisoners from state facilities to county jails and borrowing from county funds to cover state prison costs. Political backlash last year stalled this effort and put pressure on Governor Brown to challenge the court order. In March, a Federal judge denied the Governor’s petition to have the prison order terminated; leading Brown to publicly state that he would again take the case all the way to the Supreme Court rather than continue to comply with the 2011 order.

What you can do now

In the meantime, California’s prison population continues to suffer under difficult conditions, sometimes in violation of the Constitution, international law, and a direct Supreme Court order. While the legal wrangling continues at the state and national level, I am working hard to secure remedies for individuals. By filing Petitions for Writ of Habeas Corpus, I can sometimes challenge an inmate’s confinement in state or federal prison.

If you or a loved one is currently incarcerated in California’s broken system, do not wait on a political solution for reform. While I remain optimistic that reform will be implemented, legal rights should not be kept on hold in the meantime. Please, contact my office immediately to determine whether you can seek post-conviction relief. As Justice Kennedy stated in his 2011 opinion, even convicted criminals have basic rights to their humanity. I can help fight for yours.

Trial Process and Rights

Right to a Speedy Trial

Many people are aware of at least some of their constitutional rights during a criminal investigation. They know less, however, about the trial process. This is partly because a large portion of suspects are either released or take a plea-deal long before a trial ever gets under way. It is also because the trial process can be very different depending on the defendant, the crime, or the legal strategy employed. I will attempt to cover the basics in this article, but you should always talk to a competent attorney about specific strategies for your case.

6^th Amendment Guarantees

The Sixth Amendment to the United States Constitution guarantees that every person accused of a crime has a right to a jury trial, along with a right to confront witnesses, obtain his/her own witnesses, and have competent representation. This may be one of the most important parts of the Constitution from a criminal perspective because it is the foundation of our system of justice. Without the protections afforded in the Sixth Amendment it would be hard to place much faith in a conviction.

Judge or Jury?

A trial is an opportunity for a defendant’s guilt to be judged by a neutral party. Prosecutors and law enforcement have a duty to seek guilt. This does not mean that they are doing unfair things, but their role in the process necessarily gives them a stake in the outcome and thus disqualifies them as finders of fact. While the Sixth Amendment creates a right to a trial before a jury, defendants have a related right to waive the jury process and have their case decided by a judge.

There are times when the specific facts of a case point towards a judge, whom may have many years of legal experience, as the most neutral party. For example, the two teens recently convicted for the now infamous Steubenville rape incident chose to have their case tried to a judge. I suspect that their decision was based on a fear that the wild media fervor surrounding the case would make selection of a fair and impartial jury nearly impossible. Those defendants were ultimately convicted, and in hindsight it is not clear whether their choice of waiving their right to a jury was a wise decision, but defendants usually have a choice.

Presenting Evidence

Regardless of whether a case is tried to a jury or a judge, the trial will proceed in a similar fashion. Both sides, the defense and the prosecution, will have an opportunity to present evidence. The prosecution will go first and the defense last.  Prior to the trial, the prosecution and defense will always attempt to limit the admissible evidence by way of pre-trial motions. During a trial, the prosecution bears the burden of proving a defendant’s guilt – the highest burden in the law. Theoretically, a defendant faced with a weak case, could sit silently throughout the entire process and merely trust in the finder of fact to see through the holes in the prosecution’s evidence. This, however, is very unwise in most situations.

Confronting Witnesses

In practice, defendants will usually want to present the best evidence in their favor, and to attack the evidence presented by the other side. Here again, the Sixth Amendment comes into play. The amendment gives defendants a right to do several important things. First, defendants have a general right to demand that witnesses against them testify in court. There are some limitations, such as children in sexual abuse cases, but generally the prosecution has to bring witnesses into court. This is critical because if helps to ensure that witnesses give a true account of events. It also gives a defendant the right to cross-examine those witnesses to probe for errors, biases, or coercion.

Presenting Witnesses

The Constitution also guarantees defendants the right to present witnesses in their defense.  This means that defendants can bring in people who might tell a story more favorable to their explanation of the facts. Such witnesses, if available, are critical because they will help a defendant tell his/her story to the fact finder. Without this piece of the puzzle, the judge or jury would hear only about a persons supposed guilt, nothing more. This right also gives defendants the power to compel witnesses to appear on their behalf, such as with a subpoena.

Closing Arguments

Once all witnesses have had a chance to testify in court, both sides will give closing arguments which are essentially short summations of the evidence as seen by that side. Once this is done, the finder of fact will make a determination and the trial is over. While all of this seems fairly straight forward, and often it is there are many important considerations along the way which are best made with the help of a qualified attorney.

Defendant Testimony

One very important decision every defendant must make is whether or not to personally testify. Defendants have a right to speak on their own behalf, but this is not always wise. The Fifth Amendment gives suspects and defendants a right to refuse to answer questions - the answer to which may further incriminate the defendant. In other words, you cannot be compelled to admit a crime. There are times when a defendant will absolutely want to get on the stand and tell their story, but often doing so exposes a defendant to unpleasant questions on cross-examination. For example, it may open the door for evidence of the defendant’s past convictions.

You need an attorney!

Because of the complexities of the many other nuances and choices present in every trial, you should absolutely discuss these options with your own attorney. Choosing unwisely can potentially destroy your case. If you have been charged with a crime please contact me right away so that we can work together to make sure you make best use of your critical Constitutional rights.

Legal Rights After An Arrest

Post Arrest Rights

Two weeks ago I wrote about some of the rights suspects have leading up to, and during, an arrest. Today I am going to continue that train of thought by discussing some important suspect rights after an arrest. No one likes getting arrested, that much is clear, but it does happen. In order to preserve your legal rights, rights often guaranteed by the Constitution itself, it is important that you to understand a little more about the arrest process.

Not a conviction

First and foremost, you need to clearly understand that an arrest does not equal a conviction. In fact, an arrest really does not say much of anything about your ultimate guilt, your chances in court, or even about what the police know or don’t know. Plenty of totally innocent people get arrested and even charged. That is why we have courts; to sort out the legitimate police action from the mistakes.

This point bears repeating because there is a lot of confusion surrounding this issue, especially as relates to what the police may or may not know about you or what you allegedly did. An arrest does not equal a conviction. You have still not been convicted of a crime until a judge or jury decides beyond a reasonable doubt, the highest burden in the law, that you are guilty.

Everything you say can be used against you…

I hear too many stories about suspects who, once arrested, start discussing every possible law that they may, or may not, have violated. Do not be one of them. You will get a chance to tell your side of the story. Wait for a lawyer to assist you. This is usually good advice before an arrest but it is absolutely critical after an arrest. Even if you feel sure that you committed a crime, you may be legally innocent or have a legitimate defense. Even if a law was violated, police are absolutely required to follow certain procedures during their investigation and their failure to do so may be fatal to their case against you.

Confessions

After the arresting process is complete and you have been brought in officers are likely to start asking questions. Confessions are usually a very bad idea. Unless you have spoken to a lawyer first, do not give one. When they read you your rights, the part about how “anything you say can be used against you in a court of law…” that’s true. A confession may be misconstrued or based in part by coercion. Do not feel obligated to cooperate merely because you are vulnerable. Request that an attorney be present, in the event you want to confess.

It does not matter how much they ask, you should not tell authorities anything without speaking to an attorney first. Do not take a deal to “make their day easier”, or to “be a good guy.” Without an attorney there to represent your interests, you have no way of knowing when the authorities are offering you a legitimate legal deal.

And it is not just the cops. There are lots of cases on the books when investigators have put other people up to the task, ranging from your cell mate, to a friend. If you are arrested or are a suspect in police custody, it is best that you keep quiet. Allow an attorney to represent your best interests.

Just say NO

Sometimes it is not enough to keep quiet. If investigators are persistent, and they have been in the past, clearly, firmly and politely tell them that you do not want to answer questions without an attorney present to represent you. By law, they will stop asking at that point. If they continue to ask questions, remember to politely and unequivocally state that you do not want to speak without the representation of an attorney.

During most investigations, you have a general right to end the questioning. This might not apply in the field when officers are actively trying to get a dangerous situation under control, but once you are back at the station in complete custody, they really should stop asking if you say you are done. You may have to be really clear about your desire to be done talking, but that just means that you cannot be ambiguous in your communications. Even if investigators ignore your requests, a good attorney may be able to get a subsequent confession excluded during your trial, as long as you did your best to clearly end the questioning.

Ask for an attorney

You have a right to speak with an attorney. In fact, you have this right regardless of your ability to pay for an attorney. The authorities must provide you with access to a qualified attorney if you ask for one. It might not happen right away, but keep patient and keep asking. They do have to get you an attorney and give you the opportunity to talk with an attorney in private.

However, your right to an attorney is not self-executing. You must actually and unambiguously express your desire to speak to an attorney. It is usually a good idea to do so in conjunction with your refusal to answer questions. Just say “I want to speak to an attorney and I won’t answer any more questions at this time.”

What comes next?

After an arrest, authorities have a limited amount of time in which to either press formal charges or release you. The specific time limits can depend on the circumstances but it is usually not more than a couple of days. This means that within a day or two, you will probably be brought before a judge for the first of several hearings. At this first hearing they do not have to prove much, but they do have to give an explanation of why they arrested you and what they think you may have done.

Even at this stage, it is important to watch what you say. If you have not yet spoken with an attorney, let the judge know. Please, whatever you do, be polite to the judge. You will absolutely make things worse for yourself if you start disrespecting the court. Do what the judge asks at all times. Sit quietly, do not interrupt, and answer questions if you can. Judges are not your enemy and their impartiality serves the interest of justice.

By this point, you really should have been given a chance to speak with an attorney. From there, you'll have to work with your attorney to figure out what to do next.

Get Legal Help

I have kept this discussion colloquial in order to avoid complicating an already difficult subject, which means that what I have written here only covers a few basics. Talk to a qualified attorney for specific legal advice. I am here to help if you have further questions. Contact me immediately to avoid jeopardizing your legal rights.

Legal Rights Prior To An Arrest

By now most people have heard at least a little about the ongoing investigation and trial of Oscar Pistorius, famous track star, who is accused of shooting his model girlfriend in cold blood. At times, the story trumps even the best Soap-Opera Hollywood has to offer; but despite its many twists and turns, the case highlights some of the important considerations underpinning police investigations. It’s hard to draw direct parallels because of differences between United States and South African law, but let’s assume that this case had happened right here in California.

As a suspect, you have rights. While those rights might change based on specific circumstances, some general principles can be broadly applied. Prior to arrest, you have a right to walk away from an officer. If you don't feel like you would be allowed to do that, you may already be effectively under arrest which means that an officer should probably be reading your rights to you. If in doubt, ask. You may get a conflicting answer but you'll pressure the officers to clarify the situation. A simple “I need to get going, am I free to leave?” should head things in the right direction. Whatever you do, be respectful and remain calm.

Prior to Arrest:

Even without an arrest, officers do have some authority to question you, and to expect truthful answers. This does not, however, mean that you must volunteer information. Also prior to arrest, authorities have numerous, sometimes overlapping, powers of search and seizure, most often in connection with securing evidence that can be easily destroyed or ensuring officer safety. However, there are limits. Typically the things that you say only serve to expand police powers, so watch your words. The safest approach is to turn down any request to search you or your property. If the officers have the right, and sometime when they do not, they'll go ahead and conduct their search despite your “no”. Do not worry, if their search is against the law, you'll have your rights vindicated later with the help of an experienced criminal defense attorney.

This situation frequently comes up in homes or cars where an officer might ask to “have a look around” or to “see what’s in your trunk”. What they are really asking is for permission to conduct a search. This suggests that they don't feel secure in their power to conduct the search without your permission. What many people don't realize is that it’s perfectly acceptable to say “NO” and that the officers should respect your refusal unless they are willing to take things to the next level and place you under arrest.

Be sure that your “no” is clear and unequivocal. Saying things like “I don't know”, or “maybe”, or even just keeping quiet might be taken as a yes. Even if you clearly say no, the officers might still conduct the search, but your attorney can often help you get the unlawfully seized evidence excluded from any judicial proceeding. Alternatively, the officers might start pressuring you to change your mind. Don't do it, caving to the pressure and saying yes against better judgment frequently destroys a suspect’s best legal defenses. Be respectful and reiterate your unequivocal denial of consent.

After an Arrest:

Once an arrest is in progress, your freedom to leave has been terminated, but some other rights come into play such as your right to an attorney. If you are arrested, you are not suddenly required to volunteer potentially unlawful information. It’s important to remember that at no point in the process are you ever required to divulge information that might incriminate you. Once you are under arrest, the authorities have the power to restrain you and probably to search you for evidence or weapons.  From this point on, it’s generally a good idea to keep quiet until you talk to a lawyer. You might think that a clever story will quickly resolve the situation but it will probably just make your defense all the more difficult down the road.

Whatever you do, don't try to struggle or fight with the officers. Getting arrested can be terrifying and humiliating but you do not want to make the situation worse. You'll get a chance to talk to a lawyer, even if you don't have money for one, and a chance to have your story heard. Remember to be patient and that an arrest does not equal a conviction.

Conclusion:

This area of the law is complex. Highly qualified lawyers and judges often disagree about the correct outcome of even the smallest of cases. You absolutely must contact an attorney for specific advice in your situation. What I've written here is only the barest overview of a wide range of rights and police powers. No web article, no matter how thorough, can ever replace personalized legal advice.