September 2012 Archives

Orange County "Hate Crimes" Reportedly on the Rise

September 30, 2012,

The Orange County Human Relations Council released a report late last month noting that there was an increase in reported hate crimes in 2011. Hate crimes in this context refer to attacks--verbal or physical--motivated in whole or in part by a certain trait or characteristic. Specifically, the report claims that 2011 saw a 14% rise in the total number of attacks targeting individuals because of their race, religion, ethnicity, gender, ability or sexual orientation. The full report can be found HERE. It marks the 20th year that the OC Human Relations Council has created one of these annual summaries.

The Council notes that the purpose of the report is to raise awareness of the attacks of this nature that occur in our community each year. The goal is to foster a culture where all residents are free from worry about attack for any reason.

Of course, hate crime distinctions also have very real implications on criminal charges stemming from the underlying attack. In particular, California hate crimes laws often impose harsh penalties on those convicted of these crimes. We can all agree that doing harm to another because of one of these traits is unacceptable, but it is not uncommon for community members to be wrongly accused of a hate crime. In some cases there may be a tendency to rush to judgment when someone with certain differences is attacked. At other times false accusations or misidentifications are involved in hate crimes charges.

Hate Crime Laws & Defenses
Both California and the federal government have hate crime laws on the books. They incorporate a variety of charges (misdemeanors and felonies) involving different underlying acts (physical assault, taunts, threats, vandalized property) which were motivated wholly or partially by the victim's actual or perceived characteristic. The penalties depend on the underlying crime but are generally more severe than the same conduct that was not motivated by the victim's group status. The logic behind the increased penalties for the same conduct is that a "hate crime" actually targets an entire group of people with more far-reaching effects than if the same crime was committed for different reasons.

Various defenses are available for those charged with these crimes. First off, the underlying conduct can be rebutted. For example, if you are charged with assault motivated by another's race, the actual assault can be defended against. Perhaps self-defense was at play or it was a case of mistaken identity.

Beyond that, the motivation for the incident can also be challenged. Just because the victim has a characteristic that is protected does not mean that the crime was actually motivated by the fact. The prosecution must prove that there was animosity for that group and that animosity was the reason for the crime.

In virtually all cases it is important to vigorously defend yourself against hate-crime charges. There is often a significant difference between being found guilty of one crime versus being found guilty of that same crime if motivated by hate.

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California Supreme Court Tightens Its Limits on Habeas Corpus Petitions

September 7, 2012,

There were many headlines about the California Supreme Court's recent decision in In re Bacigalupo, which tossed the 25-year-old murder conviction of Miguel Angel Bacigalupo. That decision was based upon a claim made in Bacigalupo's petition for habeas corpus that an investigator had lied about evidence key to Bacigalupo's case.

Conversely, earlier this week the Supreme Court issued another decision regarding capital habeas corpus cases that is much less favorable to criminal defendants. The ruling places strict new limits on such petitions and warns that sanctions could be levied against attorneys that fail to comply. The Court's decision, In re Reno, criticized lawyers for the defendant, Reno, who was previously known as Harold Ray Memro, stating that the habeas corpus petition was "untimely," "improper," "patently meritless," "grossly misleading" and based on "stock justifications."

Reno has been on death row for 32 years, sentenced to death in 1980 after being convicted of the murders of two pre-teen boys in 1978 and the murder and sexual assault of a 7-year-old boy in 1976. In 1985, the California Supreme Court ordered a new trial wherein Reno was convicted again and sentenced to death a second time.

On appeal, the Supreme Court affirmed the conviction and, in 1995, rejected Reno's first habeas corpus petition. In 1998, Reno brought another habeas action in federal court. The federal court found that 18 of Reno's claims had not yet been exhausted and ordered his case be considered further by the California Supreme Court. In 2004, Reno filed his second state habeas petition, making 143 claims in 519 pages. Many of Reno's claims had already been rejected in his first petition.

All of this is a testament to the complexity that is often present in these cases, particularly when the life of the defendant is on the line.

Writing for the majority in the Reno opinion, Justice Werdegar opined, "Voluminous in size and abounding in detail, [Reno's] petition nevertheless raises claims almost all of which are procedurally barred. Werdegar continued, "Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court's review while we evaluate [other prisoners'] petitions raising dozens or even hundreds of frivolous and untimely claims."

The court proclaimed that, although there is no limit on initial habeas petitions, subsequent petitions were to be limited to 50 pages. Petitions must also explicitly state which, if any, claims have been raised and rejected before, could have been raised earlier, are "truly new," and have been deemed unexhausted by a federal court. The Court further stated that "attorneys (and parties) in future cases are forewarned" that failing to follow the guidelines could "result in financial sanctions and/or having this court refer the offending attorney to the State Bar for potential discipline."

It will be interesting to see how this new decision actually affects future habeas petitions. If nothing else, it is a reminder that defendants need the help of criminal defense attorneys who honestly, fairly, but strategically leave no stone unturned when fighting for the rights of their client.

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California Supreme Court Vacates 25-Year-Old Murder Conviction

September 4, 2012,

Unfortunately, one reminder of the fact that the criminal justice system often makes mistakes is the frequency of reports on convictions eventually overturned--sometimes years (or decades) after a conviction. For example, this week the The Recorder reported that the California Supreme Court issued a decision in In re Bacigalupo tossing out the 25-year-old murder conviction of Miguel Angel Bacigalupo based on evidence that a District Attorney investigator assigned to the case lied about and withheld evidence favorable to the defense.

Bacigalupo was convicted of the 1983 murders of a San Jose jewelry store owner and his brother after admitting to the crime. However, Bacigalupo, claimed that a Colombian drug cartel forced him to perform the murder by threatening to kill him and his family if he refused. Two years before Bacigalupo's trial, Sandra Williams, the DA investigator, interviewed Gail Kesselman, a confidential informant romantically involved with a Colombian drug lord. Kesselman told Williams that she had driven the Columbian to meet Bacigalupo the night before the murder, presumably lending credence to Bacigalupo's claim that the murder was forced by the Columbian cartel.

After an evidentiary hearing in 2001 conducted by retired Contra Costa County Superior Court Judge Richard Arnason wherein both Kesselman and Williams testified, Amason found that Williams had instructed Kesselman to deny any knowledge of the killing. Amason further found that Joyce Allegro, the lead prosecutor on the Bacigalupo case and now a Santa Clara County Superior Court Judge, "knew about the San Francisco meeting as she testified that she thought information about the meeting had been provided in discovery."

Justice Joyce Kennard wrote the Supreme Court's unanimous opinion, opining, "Without this evidence, the jury likely disregarded as self-serving and implausible petitioner's claims to police that the Colombian Mafia had ordered him to kill the Guerrero brothers, and that his entire family would have been killed had he disobeyed that order." Kennard also determined that Williams had "failed to disclose favorable and material evidence."

Writing for a four-member concurrence, Justice Goodwin Liu emphasized Arnason's finding that "Williams lied and induced Gale Kesselman to lie at the September 1985 ex parte hearing. That misconduct concealed the very information that would have led Judge Ambler to conclude that Kesselman was a material witness at least for the penalty phase of the trial."

Bacigalupo's relief was achieved using a legal mechanism known as habeas corpus. A writ of habeas corpus is a legal remedy taken after sentencing in a criminal matter and is often the last opportunity for a defendant to seek relief from his conviction. A habeas action may be pursued when the defendant is unsatisfied with the outcome of his appeal and has been refused certain other remedies. The difference between an appeal and a writ of habeas corpus is that the habeas action may address issues that could not be addressed on appeal.

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