National Dog Bite Awareness Week

Fatal Mauling

In April, a 63 year old woman was attacked by a pack of pit bulls while jogging in her home town a few miles outside of Los Angeles. The horrific story caught national media attention and has since been reported across the country. According to investigators, the woman was mauled by at least four pit bulls. A witness called 911 and attempted to scare away the dogs by honking a car horn. A few minutes later, one of the dogs turned on the responding officer who was forced to fire his gun at the animal to keep it at bay. The jogger was rushed to a local hospital but died en route.

Police and animal control workers have impounded six large dogs, four pit bulls and two mixed breeds, from a local resident. While serving a warrant at that location, police discovered a hidden marijuana “grow” operation and arrested the occupant. It is unclear if these are the dogs that attacked the woman, DNA tests are being conducted, but it is possible that the owner kept the dogs intentionally aggressive as guards for his illegal operation in which case he may face criminal charges.

National Dog Bite Awareness Week

With National Dog Bite Awareness week starting May 19, this tragic attack serves as a stark reminder of the consequences of keeping uncontrolled pets. Unfortunately, California ranks first in number of dog bite attacks annually, with Los Angeles holding the dubious distinction as the worst city for Postal Worker dog bites; 69 last year.

According to statistics compiled by State Farm Insurance, there were over 16 thousand dog bite claims filed in 2012 at an average cost of almost $30,000 per claim; up $10,000 per claim since 2003. In anticipation of Dog Bit Awareness Week, the United States Postal Service released its 2012 report which recites several disturbing statistics. According to the report, the AMA estimates that Dog Bites are the most commonly reported public health issue for small children who are 900 times more likely to be bitten than a postal worker. In total, 4.7 million people were the victims of reported dog attacks in the United States in 2012 alone, many more attacks go unreported each year.

Financial Liability

What many people don’t realize is that the owner of a dog involved in an attack may be financially liable. Owners have a duty to maintain control over animals under their care; a failure to meet that duty can result in liability. In addition, many such attacks are covered under homeowners’ insurance policies providing a stable source from which to collect a judgment or settlement.

Staying Safe

To prevent attacks, avoid aggressive dogs on your route. Even dogs that appear to be restrained can sometimes break free and attack. If a dog is behaving aggressively it is best to steer clear entirely. Keep an eye on small children; they are particularly vulnerable to dog attacks. It is a good idea to read the Postal Service report on the subject; it contains a number of excellent tips for avoiding a dog attack.

If you are attacked by a dog, your first priority should be your safety. Once the immediate danger has passed, it’s critical that you see your doctor. Even if a bite seems minimal, some dogs can carry diseases, such as rabies, and small bites can still become infected. Your health and safety should always come first.

Get legal help

If you have been attacked by a dog, contact an attorney for help with your case. You deserve compensation. There is a good chance that the owner of the dog that attacked you can be held liable for your injuries.

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.