Indecent Exposure: Laws & Penalties

Posted by Chris Morales on Fri, Dec 11, 2015 @ 09:55 AM
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Tags: defendant, conviction, prosecutor, Sex Crimes, indecent exposure, lawyer, defenses

Pending Criminal Charges and A Criminal Record: Effect on Employment

Posted by Chris Morales on Fri, Dec 04, 2015 @ 09:00 AM

An explanation of how a current pending criminal charge affects your record and employment possibility when applying for a job and your rights as an applicant.

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Tags: California, conviction, criminal record, criminal charge, record, expunged, rights

Can a past misdemeanor that’s technically not “domestic violence” prohibit you from having a gun?

Posted by Chris Morales on Mon, Nov 02, 2015 @ 09:00 AM

"Domestic violence" in this context has to do with the relationship between the defendant and victim, not the label on the misdemeanor.

It’s a federal crime for someone convicted of a domestic violence offense to possess a firearm. In 2014, the U.S. Supreme Court decided that “domestic violence” in this context doesn’t necessarily involve “violence.” (See What kind of “domestic violence” conviction prevents you from having a gun?)

Five years earlier, the Court decided a slightly different issue. It determined that misdemeanors that don’t have the “domestic violence” label can nevertheless qualify as domestic violence for gun possession purposes. In a 2009 case, the Court reviewed a man’s federal conviction for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. Officers had found a rifle in the defendant’s home when responding to a 911 call. Ten years earlier, he had been convicted, under West Virginia law, of battery against his then-wife. The battery conviction didn’t involve “domestic violence” in that the relevant statute applied to all sorts of people, not just those in domestic relationships. The law applied to anyone who “unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person….”

The defense argued that the battery conviction didn’t qualify as domestic violence. It pointed to the fact that the battery statute didn’t specify the existence of a domestic relationship between a defendant and victim. But the Supreme Court held that, in order to qualify as a domestic violence misdemeanor for purposes of the federal gun possession law, the prior offense doesn’t need a "domestic relationship" element. The Court decided that what matters is not whether the law mentions a domestic relationship, but whether the offender and victim actually had such a relationship. In other words, the defendant’s conviction for plain old battery could qualify as domestic violence. (United States v. Hayes, 555 U.S. 415 (2009).)

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Tags: defendant, criminal defense attorney, conviction, battery, misdemeanor, domestic violence, firearm

The Death Penalty and the Right to Self-Representation

Posted by Chris Morales on Wed, Oct 07, 2015 @ 10:00 AM

Is it the defendant's right to throw in the towel when capital punishment is on the line?

On November 5, 2009, Army psychiatrist Nidal Hassan opened fire at Fort Hood, Texas, killing 13 people and wounding another 31. There isn’t much doubt about these facts since, when representing himself at his August, 2013 trial, he admitted them. He informed a military jury that he committed the attacks in response to what he perceives to be the United States war on Islam. He reportedly told mental health officials that he wanted to be considered a martyr.

Lawyers charged with assisting Hassan reported that the soldier wanted the death penalty. He rebuffed invitations to present evidence and respond to accusations, and refused to present any mitigation evidence at the penalty phase of his trial. Not surprisingly, the jury sentenced him to death.

A Formidable Right

The right to self-representation emanates from the Sixth Amendment to the U.S. Constitution. It’s a formidable right, as there’s very little courts can do to stop most defendants from representing themselves. Forcing a lawyer on a defendant generally requires severe mental incompetence or attempts to obstruct court proceedings. Otherwise, the accused are pretty much free to represent themselves, regardless of how bad that idea that is. (Faretta v. California, 422 U.S. 806 (1975).)

There are certain conditions courts can attach to defendants’ self-representation. For example, judges generally must receive a “knowing and intelligent” waiver of the right to counsel after warning defendants of the risks of proceeding without a lawyer. (One of the detriments is the inability to claim ineffective assistance of counsel when appealing a conviction.) In some cases, courts can also appoint stand-by counsel—lawyers who are ready to take over if defendants can’t or won’t continue to represent themselves.

Rigging the Fight

The right to self-representation is somewhat intuitive: If someone’s life or liberty is on the line, shouldn’t that person be allowed to decide how the case is litigated?

But what if the defendant wants to be convicted, or even executed?

Courts have generally held that defendants can represent themselves however they see fit, regardless of their motivation. The issue occasionally arises in capital cases like Hassan’s (except that his occurred in military court, which doesn’t alter the analysis).

At a death penalty trial, if the jury finds the defendant guilty, the case proceeds to a penalty phase. At that point, the prosecution can present aggravating evidence to convince the jury to order the defendant’s execution. The defense is free to present mitigating evidence to counteract the prosecution’s presentation. The case essentially becomes a battle over the value of the defendant’s life.

The New Jersey Supreme Court, for one, has taken the position that the need for a meaningful determination of a life-or-death sentence should trump the right to self-representation. It held that defendants shouldn’t be able to prevent presentation of mitigation evidence, evidence that might save their lives. (State v. Reddish, 181 N.J. 553 (2004).)

Up to the Defendant

But most courts throughout the U.S. have held that defendants who represent themselves in capital trials can elect not to offer mitigating evidence. For example, a federal appeals court in 2002 held that a trial judge was wrong to appoint a lawyer to represent a defendant at a penalty phase. The defendant didn’t want a lawyer or a mitigation presentation (apparently because he theorized that the chances of a court overturning the conviction on appeal were better with a death sentence). (U.S. v. Davis, 285 F.3d 378 (5th Cir. 2002).) That court, and others since it, said it’s up to the person on trial to make the ultimate decision.

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Tags: right self representation, trial, court, conviction, defendants, death penalty, jury, lawyer

Pending Criminal Charges and A Criminal Record: Effect on Employment

Posted by Chris Morales on Wed, Sep 16, 2015 @ 09:30 AM

An explanation of how a current pending criminal charge affects your record and employment possibility when applying for a job and your rights as an applicant.

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Tags: Criminal Charges, conviction, criminal record, complaint, employment, state law, attorney

Sex Offense Appeals

Posted by Chris Morales on Mon, Aug 24, 2015 @ 09:00 AM

By Ave Mince-Didier

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Tags: defendant, trial, jail, court, conviction, Fines, verdict, Sex Crimes, attorney, crimes, probation, appeal

Can a conviction for a noncitizen lead to deportation?

Posted by Chris Morales on Fri, Jun 26, 2015 @ 09:00 AM

A noncitizen of the U.S., whether an undocumented immigrant or a lawful permanent resident (a green card holder) needs to understand the immigration consequences of any crime that he or she is charged with. Conviction can, in many cases, lead to deportation (removal) from the United States.

It’s difficult to generalize about which crimes make a noncitizen deportable under federal immigration law. The analysis depends in some cases on whether the crime is a misdemeanor or a felony, and in other cases on whether the type of crime is specifically listed among the grounds for deportability (as are various drug crimes, domestic violence, child abuse, and more).

A common way for noncitizens to become deportable, however, is through conviction of an aggravated felony. Conviction of acrime of moral turpitude within five years of admission to the country is another.

Many noncitizens serve their sentences and are then deported (removed). The noncitizen may not find out about intended deportation until the last minute, when the immigration authorities place a “hold” on him or her.

For example, suppose that, eight years after her lawful admission to the country, Mia Palabra is convicted of possession of more than 30 grams of marijuana for personal use, a misdemeanor. Mia is subject to deportation even though the crime is a misdemeanor, because it qualifies as a drug offense.

For more detailed information regarding the immigration effects of criminal charges, see Crimes and U.S. Immigration. Noncitizens who have had an encounter with the criminal justice system should also consult an attorney experienced in immigration matters.

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Tags: conviction, immigration, lawful, crimes, charges, deportation

Burdens of Proof in Criminal Cases

Posted by Chris Morales on Fri, May 15, 2015 @ 09:20 AM

Generally, the prosecution has the burden of proving every element of a crime beyond a reasonable doubt. But while a defendant isn’t required to prove innocence in order to avoid conviction, the prosecution doesn’t have to prove guilt to the point of absolute certainty. And despite the general rule that the prosecution bears the burden of proof, there are instances when the burden shifts to the defendant.

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Tags: defendant, guilty, conviction, burden, crime, prosecution, beyond a reasonable doubt, issues of proof

Aiders and Abettors, and Drug Deals Gone Bad

Posted by Chris Morales on Fri, May 08, 2015 @ 10:51 AM

A woman by the name of Perez set up a drug buy—she agreed to sell a pound of marijuana to men named Gonzales and Painter. With two associates, Joseph and Rosemond, in tow, she drove to the arranged point of exchange. 

After Perez, Joseph, and Rosemond arrived, Gonzales got into the car while Painter stood nearby. Either Joseph or Rosemond presented the marijuana, at which point Gonzales attacked, jumped out of the car with the drugs, and ran. Painter joined him.

One man—either Joseph or Rosemond—got out of the car and fired at the robbers with a semiautomatic. The shooter got back in, and the three would-be sellers began a chase by car. But before they could catch their adversaries, an officer pulled them over.

Lending a Hand

Prosecutors charged Rosemond with several crimes, including use of a gun in connection with a drug-trafficking crime. Because they couldn’t establish who carried and fired the gun, they allowed for the possibility that he simply aided and abetted the offense. (Rosemond v. U.S.,572 U. S. ____ (2014); see Opinion analysis: Justice Kagan writes a primer on aiding and abetting law.)

Under the theory of accomplice liability, one who aids and abets another in the commission of a crime is guilty of that crime. In other words, you can be punished as if you actually committed an offense even if you only assisted it.

As the Supreme Court reaffirmed last week, in order to aid and abet a crime under federal law, associating oneself with it isn’t enough. Instead, the defendant must “‘participate in it as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’” In short, the defendant must intend to aid the crime and commit some act to aid it.

Intent vs. Knowledge

In considering the drug-deal-gone-bad case, the Court found that Rosemond could be guilty of the drug-trafficking/gun-use crime even if he didn't have anything to do with the gun. It was enough that he assisted in the attempted drug deal. That’s because an aider and abettor doesn’t need to aid and abet each element of a crime—assisting in just one part is enough for a conviction.

However, the Court drew an important distinction: An accomplice doesn’t have to intend to help with every element of a crime, but he has to know about each. He has to know about all elements before lending a hand, and early enough that he has an opportunity to quit the crime. So, the Court ruled that the prosecution had to prove that Rosemond knew about the gun before his colleague used it.

The prosecution had to establish that Rosemond knew a gun would be involved early enough that he could have abandoned the drug deal. If, for example, he hadn’t been the one to use the gun, and if he had become aware of it only as his colleague pulled it out, he couldn’t have been guilty of the offense. If, on the other hand, he had seen the gun when he first got together with his partners and nevertheless decided to carry on with the plan, he would've been guilty.

No Knowledge, No Conviction?

In a broad sense, it’s reassuring that people have to know almost exactly what they’re signing up for in order to be convicted as accomplices. But that doesn’t mean all-around acquittal for most people who agree to take part in criminal endeavors. Depending on the circumstances, the law may allow for a conviction of a lesser crime. For example, whatever Rosemond did or didn’t know about the gun, he was still on the hook for possession of marijuana with intent to distribute.

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Tags: charged, drugs, marijuana, conviction, prosecutors, crimes, intent, drug-trafficking, liability

S e n t e n c i n g P a r t n e r s - F E B R U A R Y 2 0 1 5 - P a r t III

Posted by Chris Morales on Wed, Mar 18, 2015 @ 07:38 AM

We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us. 

Crime of Violence

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Tags: conviction, sexual assault, sentenced, pled guilty, firearm, crime of violence