April 2011 Archives

Court of Appeals Reverses Conviction: Judge Should Have Questioned Competency When Defense Was "Victim Was Not Human"

April 23, 2011,

Orange County Criminal Court Judge James Marion should have known that a decompensating pro per criminal defendant was not competent when he had a history of severe, chronic mental health problems and presented a defense that his victim was not human, says the Court of Appeal Fourth District Division 3 in its opinon in People v. Murdoch, G043313.

Mr. Murdoch was charged with stabbing a roommate from whom he was renting a room. He filed a motion to represent himself and the court sent him for two independent mental health evaluations. The doctors opined he was competent to stand trial, despite his severe, chronic mental health problems, as we was on medication. Mr. Murdoch told one of the doctors that he didn't always take his medication.

By the time of trial, one could wonder when he took it last. The defense he presented was that the victim was an angelic, nonhuman being. He told the court he wanted to offer pages of the bible into evidence and cross-examine the witness as to whether she was a bibical figure. All he needed to know, he said, was if the witness could shrug her shoulders like him or if her shoulders were replaced with wings. Once the witness did shrug her shoulders, Mr. Murdoch stated the witness was an imposter!

The court allowed all this, without having a doubt about Mr. Murdoch's competency. The court should have had a doubt. Thankfully, Mr. Murdoch's conviction has been overturned with an order to determine his competency.

Last year I helped prepare the Santa Ana YMCA mock trial team to present their cases at the Santa Ana School Board before Judge Marion. Fortunately, the defendant in the mock trial examination was competent.

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Orange County Loses $4.9 Million Lawsuit Challenge In Juvenile Dependency Case

April 22, 2011,

The County of Orange and the Orange County Social Services Agency is on the hook for a record-breaking $4.9 milliion dollar lawsuit judgment after the United States Supreme Court refused to hear their challenge, according to The Register's County loses $4.9 million lawsuit challenge over lying social workers

Deanna Fogerty-Hardwick fought for 6 1/2 years to regain custody of her children after they were wrongfully removed. Two social workers lied in reports and statements to the juvenile court commissioner who presided over the case. A social worker threatened Fogerty-Hardwick that she would never see her children again unless she agreed with the allegations against her. Instead, Fogerty-Hardwick refused and bravely took her fight all the way to the SCOTUS.

Fogarty-Hardwick sued the county for wrongfully removing her children without making a finding of imminent danger or serious physical injury, interviewing her children without a parent present, keeping the children out of the home without cause; fabricating evidence to the court, and for failure to properly train employees about parents' constitutional rights. A jury ruled in her favor and awarded her $4.9 million.

The County appealed and was slapped by the Court of Appeal in an opinion in which Justice William Bedsworth wrote, "the evidence adduced at trial obviously caused both the jury and the judge to conclude not only that something seriously wrong was done to Fogarty-Hardwick in this case, but also that the wrongful conduct was not an isolated incident."

Bedsworth wrote, "Despite Fogarty-Hardwick's complaints, and the concerns expressed by others about the handling of this dependency case, SSA did not investigate the situation or consider assigning different social workers to the matter. Neither of the social workers involved was disciplined. Instead, Vreeken was promoted to supervisor in 2001."

Because the County chose to fight the case, the interest now brings the judgement to a near $10 million.

As a parent's rights attorney, I represent parents in juvenile dependency cases in the trial courts and on appeal. In my experience, few social workers seem to understand the law, let alone have they ever been trained in parents' constitutional rights. These trusted employees failed the Fogerty-Hardwick family and violated the sacred right of a parent to raise her children. But this case shows that the problem is far worse than a few bad apples at SSA. The failure of the department to train workers properly is apparent. Until there is proper training and a real consideration and honoring of parent's rights, injustice is likely to pervade this broken system.

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Pico Rivera Gangster's Tattoo of the Crime Leads To His Conviction

April 22, 2011,

61070396.jpgCriminal Defense attorneys frequently advise their clients not to speak to anyone about their case. But I suspect few criminal defense attorneys have told clients not to depict their unsolved crimes on their bodies with tattoos. Apparently, Anthony Garcia never got this advisement. According to the LA Times' Gang tattoo leads to a murder conviction, Mr. Garcia depicted a first degree murder he committed in an elaborate chest piece.

A Pico Rivera detective came across the photo that was taken when Mr. Garcia was arrested on suspicion of a minor traffic offense as part of the booking process. This detective recognized the liquor store where this unsolved crime took place. Mr. Garcia's chest bore the story of the crime, down to the detail of the Christmas lights, indicating when the event took place for detectives.

Once police put this all together, they had undercover officers pretend to be gang members in jail and elicited a jailhouse confession. They claim Mr. Garcia boasted of his involvement, apparently unaware he was being audio recorded. A Los Angeles jury convicted Mr. Garcia of first degree murder this week.

For young people caught up in gangs, committing crimes and then boasting or bragging about them is an important way to get street cred. The irony is that confessions make it easy for law enforcement to prosecute the suspects. In this case, Mr. Garcia helped police seal his fate.

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Orange County District Attorney Seeks To Ban Sex Offenders From Parks, Beaches

April 17, 2011,

Many residents of Orange County, California have been enjoying this weekend's heatwave by visiting our pristine beaches and congregating for BBQs at parks. But if Orange County District Attorney, Tony Rauckauckus has his way, soon the beaches and parks will be off-limits to registered sex offenders, according to The Times' Orange County DA Wants Sex Offenders Banned From Beaches, Parks. The District Attorney pitched the ban to the Board of Supervisors last week. Rauckauckus seeks to keep beaches and parks as havens for children and their families.

One dares to wonder how this would be enforced. Would each beach and park attendee have to check in upon entry and be run through the Megan's Law directory? I hear the County is bursting at the seems with funds for discretionary projects like this. Maybe all of the pink slipped Costa Mesa police officers can pick up some hours going up to random people at beaches and parks, asking for IDs to check for registration status. What do you mean you need probable cause? Anyone can spot a sex offender a mile away, right?

Well, according to the University of New Hampshire Childhood Sexual Abuse Fact Sheet, amongst other statistics, acquaintances and family members commit most sexual abuse and assault on children. Family members constitute a quarter to a third of all childhood sexual abusers and 90% of chidren are acquainted with their abuser in some way. So maybe the beaches should not be just for, "parents who want to enjoy nature with their children," as Rauckauckus claims.

The most ironic part of this huge waste of time and resources plan is that Rauckauckus either is not aware of the family and acquaintance childhood sexual abuse predominance or just doesn't care. Granted, his position is a political one and sex offender politics are easily popular because they create hysteria around abuse that occurs to approximately 1.2 per 1,000 children. Centering this discussion around sex offenders at parks and beaches, as though a 290 registrant is behind every bush with binoculars imaging each child naked, is dishonest because this isn't where or how sex abuse is actually happening.

Child sex abuse is a serious problem in our society and prevention, education, treatment and punishment are important tools to be used in protecting kids. At the same time, banning sex offenders from public park and beaches is draconian, a waste of money, and unnecessary.

Restrictions for these individuals, who live amongst us whether one likes it or not, are already causing severe homelessness throughout the country, including our neighboring city, Los Angeles, according to many media reports. It seems the real goal is to prohibit sex offenders from really living anywhere, except jail. Once they are banned from parks and beaches - - two places homeless people are often forced to live in Orange County due to limited shelters - - there really will be no place to stay in Orange County except jail. If Rauckauckus really wants to see all sex offenders spend the rest of their lives in jail, he should just be honest about it and lets have the conversation out in the open.

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California's AB 73 Will Finally End Secrecy in Juvenile Courts

April 5, 2011,

Those of us who practice in the juvenile dependency system in California know that juvenile courts are closed and secret proceedings that the public rarely gets a glimpse into. While privacy measures were designed to protect the identity of the children and families in the system, ultimately it is County Social Service Agency and Child Protective Services social workers who are shielded from scrutiny for their actions. According to a Sacramento Bee EDITORIAL: Dependency courts will benefit from being open, soon this all may end.

The consequences for families will only be positive and, finally, the press will be able to report on these cases so the public can learn what really happens to families in this system. Too many children have been seriously injured or killed in foster care due to a lack of social worker supervision and action. We must hold all caretakers of children responsible when there is abuse of children- - not just parents in the system.

I support AB 73 and look forward to a more tranparent administration of justice for children and families. Sunshine truly is the best disinfectant.

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