May 2012 Archives

The Facts About Marijuana

May 24, 2012,

Going Green
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Department of Justice (DOJ) to Cops: Citizens Have The Right To Record You

May 24, 2012,

A May 2012 letter from the U.S. Department of Justice (DOJ) clarified its position regarding the constitutional rights implicated when an individual records police activity was made public on the DOJ's Civil Rights Division website. The Letter was in response to Sharp v. Baltimore Police Department (BPD) where the complaint alleged that BPD had a policy of instructing officers to seize, search, and delete recordings of police activities made by individuals.

The DOJ Letter included six main guidelines for law enforcement agencies to train officers and develop policies consistent with an individual's right to record police activity:

1. Guidelines should state the First Amendment right of individuals to record and observe police activity. The DOJ states that recording police officers engaged in their duties is a form of speech protected by the First Amendment. Policies should include examples of places where an individual may legally record police officers including public and private property, and what kinds of activity may be recorded.

2. Law enforcement policies regarding recording and observing police activity should include descriptions and examples of prohibited responses from law enforcement. Policies and guidelines should forbid officers from interfering with an individual recording police activity except in very limited situations. Moreover, officers should not be allowed to seize and search a recording device without a warrant. Under no circumstances may officers destroy or delete photographs or recordings. Officers must also refrain from more subtle ways of interference including threats, intimidation, or intentionally blocking cameras.

3. Policies should contain descriptions and explanations of what activities amount to "interference with police duties." Policies should reiterate that individuals may record public police activity unless the individual's actions endanger the safety of the officer or others, the individual is violating the law, or inciting others to violence. Engaging an officer repeatedly while the officer is performing his or her duties, or tampering with witnesses are examples of interference that are not protected by the First Amendment right to free speech. But if a person is not intrusive and recording from a distance, even if the individual recording is expressing criticism of the police, the individual's actions do not amount to interfering.

4. Policies should include a system of supervisory review. The system of review should include policies that require that a supervisory officer be called to the scene before an officer takes any significant action against an individual recording police activity. Supervisors should be at the scene before an individual is arrested if possible, but at minimum should be present to approve the arrest before the person is transported to a holding facility.

5. Policies should contain clear descriptions of when officers may seize recordings and recording devices. Policies should include clear guidance for officers on how to obtain valid consent to review photographs and recordings. Policies should also include a clear list of the limited circumstances under which recordings may be seized without a warrant, and how long the seizure can last. A warrantless seizure should only occur when the officer has probable cause to believe that the recording has evidence of a crime and that the evidence may be destroyed if the officer waits for a warrant. In these cases, once seized the recordings cannot be searched before a warrant is obtained.

6. Law enforcement should give individuals the same rights to record police activity as given to the press. Policies should alert officers that the general public has the same rights to record police activity as the press and no individual should be required to present "press credentials" in order to be allowed to observe or record police activity.

The DOJ Letter is likely to urge police departments to change their policies regarding individuals who record public police activity. However, change is unlikely to come quickly and officers will continue to discourage and even arrest citizens when they exercise this constitutional right.

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California Venue Provisions For Criminal Prosecution

May 18, 2012,

When a crime occurs, the proper venue in which to prosecute the offense is generally the county where the crime was committed. However, in many cases part of a crime is committed in one county and part is committed in another county. The California Supreme Court recently held in People v. Thomas that a defendant may be prosecuted for possession for sale of a controlled substance and possession of a firearm by a convicted felon in one county when he stores drugs and firearms in another county if the effects of the crime would be felt in the first county.

In People v. Thomas the Defendant, a convicted felon, lived, sold drugs, and belonged to a gang in Madera County. He also possessed the keys and receipt for a storage locker in neighboring Fresno County. Upon a legal search, police discovered a large amount of cocaine, cash, and a firearm in the locker. The Defendant was prosecuted and convicted in Madera County, but on appeal argued that Fresno County was the only proper venue to try his case because that was where the drugs were located. The California Supreme Court disagreed and held that Madera County was also a proper venue for the case.

California Penal Code Section 781 provides that when parts of an offense are committed in more than one county or when the acts or effects of the crime or necessary to its commission take place in more than one county, the crime may be prosecuted in the superior court of any of the counties involved.

The Court explained that venue provisions in criminal proceedings served a number of purposes. One important purpose of venue provisions is promoting convenience for both parties to obtain evidence and secure witnesses' presence. Venue provisions also protect the defendant by preventing unfairness and hardship that may be present if a defendant were to be tried in a remote location. Finally, venue provisions also protect the interests of the place where the crime was committed, allowing the community to sit in judgment for a crime that happened in its area.

The Court concluded that Madera County was the proper venue in this case for several reasons. First, even though the drugs and firearm were located in Fresno County, by having keys and receipts to a storage locker, the Defendant had "constructive" possession of the drugs and firearm in Madera County. Under California case law, an individual has constructive possession over a controlled substance if he or she maintains some kind of control or right to control contraband that is not in his or her actual possession.

Second, under Section 781, Madera was a proper venue because the effects of the unlawful possession of the drugs and gun would be felt in Madera County and Madera was the center of Defendant's drug operation. The Defendant also committed preparatory acts in Madera County including getting a second apartment in Madera that Defendant did not disclose to his parole officer, as well as securing two cell phones and a pager with which to conduct his drug business.

Finally, Madera is a proper venue because it promotes the convenience of both parties, since most of the witnesses lived in either Madera or Fresno. It also promotes the interest of the community in which the drugs were going to be sold (Madera). The court stated that the interests of Madera County, where the drugs were to be sold, were at least as strong as those of Fresno County, where the drugs and firearm were stored.

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California Supreme Court Rules on Sixth Amendment Right to Counsel

May 11, 2012,

A recent decision from the California Supreme Court concerning the way clients and their attorneys share information is making headlines. In an opinion released in April, the California Supreme Court ruled that a defendant's Sixth Amendment right to counsel is not necessarily violated by a court order barring the defendant's attorney from discussing the existence or contents of a witness' plea proceedings and a witness declaration executed as part of those proceedings. For the defendant to prove a Sixth Amendment violation, the defendant must show that the violation influenced the outcome of the trial.

The underlying facts in People v. Hernandez involved a Defendant charged with attempted murder along with three others. Two of the co-defendants entered into plea bargains where they executed sealed declarations as part of their plea agreement. One testified for the prosecution at Defendant's trial. The witness' declaration was sealed, and defense counsel was not given access or allowed to reveal the existence of said declarations to his client or any other person. When one of the witnesses testified at trial, defense counsel was given access to the witness' sealed declaration but was not allowed to discuss its existence or contents with the Defendant or anyone else.

On appeal for his conviction of attempted murder the Defendant argued that not allowing defense counsel to discuss the declaration with him violated his Sixth Amendment right to counsel. The California Supreme Court stated that the only way that the Defendant can prove that his right to counsel was violated is by showing that the violation influenced the outcome of the case, and remanded accordingly.

Under the Sixth Amendment, a criminal defendant is entitled to the effective assistance of counsel. The right to an attorney under the Sixth Amendment is triggered once criminal proceedings begin against an individual and applies to all "critical stages" in a criminal proceeding. Critical stages in a proceeding include arraignment, post indictment interrogation, post indictment line-ups, plea negotiations, and entering a guilty plea. In this case, the Defendant had access to and representation by his attorney at all critical stages of the trial.

The right to an attorney under the Sixth Amendment also encompasses the effective assistance of counsel, meaning that there is a constitutional violation only when some type of ineffective assistance on the part of the attorney influenced the outcome of the trial. In cases where ineffective assistance of counsel is alleged due to counsel's inability to share a witness' declaration, the burden lies on the Defendant to prove that his counsel's inability to discuss the declaration with him influenced the outcome of the trial.

When deciding whether forbidding a defense attorney from discussing a witness' declaration with a defendant influenced the outcome of a trial, the Court suggested lower courts consider several factors. These include the importance of the witness' testimony for the prosecution's overall case, whether there was other testimony or evidence that duplicated the testimony, the extent of cross-examination permitted, and the presence or absence of corroborating or contradicting evidence on material points in the testimony.

It is unclear what effect this decision will have on criminal appeals based on the Sixth Amendment right to counsel in California. It may open the door to allow prosecutors and defense attorneys to withhold important evidence from defendants. This would then force the defendant to have to prove that he or she was harmed by these actions on appeal. It seems like defendants will have a difficult time discovering the existence of this evidence in the first place, and then having to prove that it unfairly influenced their case.

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Equal Employment For Individuals With a California Criminal Record

May 2, 2012,

The federal Equal Employment Opportunity Commission (EEOC) released an Enforcement Guidance last April that will have far-reaching consequences for prospective employees with a criminal record in California--as well as for the employers that turn them down. This law strengthens the existing California law against using the prior criminal history of prospective employees unless there is a job-related reason to do so.

Disparate Impact

According to the EEOC, using criminal records to make employment decisions can have a disparate impact on certain individuals, especially African American and Latino males. A disparate impact occurs when an otherwise neutral regulation or process affects a protected class more heavily than others. Protected classes include race, religion, national origin and disability. Higher arrest and conviction rates for African American and Latino males make using a job applicant's criminal record suspect, according to the EEOC, because it has a disparate impact on these groups.

New Guidelines

The EEOC has long discouraged employers from considering arrests that have not lead to convictions when making employment decisions. The new Guidance prohibits the use of a broad exclusion for any conviction. A broad exclusion is, for example, a section on a job application where an individual must check a box if he or she has ever been convicted of any crime, and excluding all applicants who checked the box.

Under the new EEOC Guidance, an employer can justify consideration of criminal history in two ways:

(1) the employer can validate particular exclusion criteria by demonstrating that past criminal conduct is statistically likely to result in certain illegal behaviors or actions, or

(2) the employer must develop a "targeted screen" or "individualized assessment" that considers at least the nature of the conviction, the time elapsed since the conviction, and the nature of the job along with the conviction itself.

This targeted screen should essentially allow a job applicant the opportunity to show that the exclusion due to past crimes should not apply in the particular case. The EEOC listed a set of factors that an employer should consider. These include the facts surrounding the offense, rehabilitation efforts, the number of offenses for which the individual was convicted, the amount of time since the conviction, other similar jobs held after the conviction with no repeat offenses, employment history before and after the conviction, character references, and whether the employee is bonded.

However, even if the employer has put a targeted screen procedure in place for hiring employees, a prospective employee may still prevail in an employment discrimination suit if he or she can prove that there was a less discriminatory alternative that would serve the employer's legitimate goals, but that the employer refused to implement it instead.

The Guidance recognizes that federal and state laws may restrict certain positions to candidates who have not been convicted of specified crimes. This is true of airport security screeners, law enforcement officers, educators, childcare workers, bank employees, and port workers. Similarly, the EEOC recognizes that a person with a criminal record may be denied security clearance required for a number of government positions. However, any exclusionary practices beyond federal restrictions will be viewed as suspect by the EEOC.

Detractors argue that this EEOC Guidance effectively gives convicted criminals more rights than law-abiding citizens. Others argue that this Guidance will be difficult and costly to implement. What is certain is that it is sure to result in more employment discrimination related litigation in California and across the country.

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