Articles Posted in Criminal

Last week on HBO’s documentary, “The Jinx,” real estate mogul Robert Durst seemed to have confessed to killing Kathleen McCormack Durst, Susan Berman and Morris Black, for which he was a prime suspect. The question, however, is can this “confession” be used in court, or will a judge preclude Durst’s statements from being admitted into evidence in a criminal case?

What Durst Said

The confession came during a bathroom break at the close of HBO’s documentary “The Jinx”, in which Durst was interviewed by Andrew Jarecki, a renowned moviemaker (nominated for the Oscar award in 2004 for “Capturing the Friedmans”). Here is what Durst said, as caught by a wireless microphone: “You’re caught. You’re right, of course. But you can’t imagine. Arrest him. I don’t know what’s in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I’m having difficulty with the question. What the hell did I do? Killed them all, of course.”

Is the Confession Acceptable as Evidence in Court?

Robert Durst was arrested in New Orleans by the FBI and charged with murder just a day prior to the episode airing. With this confession the case against him appears to be very strong. However, that is not to say that Durst’s lawyers won’t aggressively seek to preclude both the audio and the written transcript from ever coming into evidence in any case against him.

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The California Court of Appeal, Fourth Appellate District affirmed sentences for Rashon Abernathy, Shaquille Jordan and Seandell Jones on counts of robbery and murder.he three defendants were convicted to 25 years to life (Jordan and Jones) and 50 years to life (Abernathy) of robbery, shooting a vehicle and stealing and driving a car unlawfully. In addition, Rashon Abernathy was found guilty for another robbery case.

In the first case in May of2011, Abernathy placed a Craigslist advertisement for a MacBook Pro computer. On May 5th, after communicating with a potential buyer, Eric Castillo, via SMS messages, Abernathy and his friend met Castillo at a recreation center. When Castillo produced $600 in cash for the computer, Abernathy’s friend grabbed the money and ran away together with him. Castillo gave chase, but, as he came nearer the robbers, Abernathy drew and pointed a gun at Castillo and said: “I am going to [expletive] kill you.” Castillo abandoned the chase and called 911 shortly afterwards. The other two defendants, Shaquille Jordan and Seandell Jones were not involved in this robbery.

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Finally, the problem of overcrowding in prisons is beginning to be alleviated. Thanks to California voters, Proposition 47 was passed on November 4th, 2014. This not only begins a process that will lead to less crowded prisons due to fewer felony convictions, but aids in stopping a budget hemorrhaging millions of taxpayer dollars into a system that has been ruled unconstitutional by the United States Supreme Court.

Proposition 47 went into effect November 5, 2014 after being passed by California voters the day prior. Essentially, Prop 47 requires misdemeanor sentences instead of felony sentences for certain drug and theft crimes. Prop 47 does not apply to those with prior convictions for serious or violent crimes, as well as registered sex offenders. These prior convictions disqualify offenders from receiving protection from Prop 47. Continue reading →

According to SF Gate, a San Francisco man named Gale Joseph Young was recently freed from prison after the 9th Circuit Court of Appeal determined the DNA evidence against Young was too week to sustain the conviction. After serving six years in prison for a crime that prosecutors could not prove with the weak evidence they had at trial, Young has been released on parole. Of course, he can never get those six years of his life back.

In 2008, Young was questioned by police regarding an unrelated matter. The police searched him and found nothing. However, after Young left the station, police said they found a plastic bag containing 14 grams of cocaine. They submitted the bag for DNA testing to see if they could determine who had handled (and possessed) the bag. The DNA tests came back with a result linking it to unknown women and a small fraction of the DNA matched a male. This was the evidence they had on Young.

At trial, the prosecution offered the testimony of an expert witness on the subject of DNA. That witness testified that Young could not be excluded as the person who left DNA on the bag. Certainly, Young was a male so there was some evidence and that evidence was the basis for Young’s conviction in 2012. A jury of 12 people decided that because the bag had presumably been touched by a male, that Young was a male, and that the bag was found where Young had been, Young must have been guilty beyond a reasonable doubt.

Young had been in jail since 2008 when he was convicted in 2012. He was sentenced to five years and 10 months in prison. Fortunately for Young, the appellate court disagreed that the evidence was sufficient to sustain Young’s conviction. Fortunately the appellate court was able to review the case and apply the law that freed Young. Unfortunately, Young is another young man who is the victim of shoddy police work, an overzealous prosecutor, a judge who allowed this weak evidence to be offered and a jury who though this was enough to convict him.

The war on drugs has proven to not only be a complete failure but has resulted in the use of police power to detain and convict individuals for drug related crimes. There are approximately 1.5 million people in prison due to drug crimes in the Unites States according to DrugWarFacts.org. One can only wonder how many of those serving lengthy prison sentences have been convicted using shoddy evidence like the evidence used to convict Young.

Individuals who are convicted of crimes have the right to their first level appeal of the matter to be paid for by the state if they cannot afford to hire an attorney. Individuals who lose at trial should almost always file a Notice of Appeal to preserve the issues that were raised at trial for the appellate attorney to argue in front of the Court of Appeal. While Appellate victories are far more rare than trial court victories, because of the standards on appeal and the laws the apply, it is almost always a good idea to have an appellate attorney evaluate the case to see if there were errors of law made. Sometimes those errors might be made by the judge, the prosecutor, or the defense attorney. In other cases, the judge may provide incorrect law to the jury or incorrectly apply the law to defense motions or sentencing. In some cases, a motion for a new trial may be the right procedure to take prior to an appeal or the appeal may be the only way to go.

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Despite the legalization of growing medical marijuana in California in 1996, it still remains illegal under federal law to grow, sell, or use the drug. Those who do grow within the state’s regulations do not usually find any problems with the federal government. The legalization of medical marijuana cultivation has been used as a medical defense in people who are suffering from illnesses such as chronic pain, insomnia, and anxiety. However, specifics between both state and federal regulations still remain in the possession, sale, and cultivation of marijuana.

Marijuana and the California Law

  • Possession of one ounce of marijuana or less is an infraction, punishable with a $100 fine
  • Possession of more than one ounce of marijuana is a misdemeanor, punishable up to $500 plus six months in jail
  • Possession with intent to sell and cultivation are considered felonies, punishable with a possible state prison sentence

There are many other factors that can also affect jail time and fines, such as how many plants and any prior convictions.

Marijuana and the Federal Law

Despite California state regulations, the federal government can take down individuals participating in medical marijuana cultivation based on the Controlled Substances Act (CSA). The CSA is “the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain substances is regulated.” Medical or not, marijuana is considered illegal as a Schedule I substance, similar to heroin, under federal jurisdiction.

Being a Schedule I substance, federal punishment for marijuana conviction can be harsh. For example, no matter how grown a marijuana plant may be, it automatically counts as a full plant as long as it is growing, which is equivalent to 100 grams of marijuana. It is common for a marijuana defendant to be convicted in federal court, reaching sentences that range from one day to twenty years.

You and the Law

Being familiar of the factors that can affect how much you will be fined or the severity of the punishment is important. The conviction between the intent to sell and the recreational use of marijuana is extremely different. Growing a plant that is closer to a school and kids versus a place that is further, can affect an individual’s punishment as well.

If you want to avoid harsh state penalties, do not grow an abundance of marijuana plants. The fewer, the better. This will attract less attention of federal authorities. Also, you want to suffice your own medical needs. If you are caught of an excessive amount that is more than medically needed, there is a high risk that you will be charged with a felony.

Your Rights and the Law

Be aware of your rights when it comes to the cultivation of marijuana in California. A cop must have a search warrant present to have the authority to search your house and property. Also, you practice the right to counsel. You are not required to answer any questions without a lawyer.

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Last week, four people were charged for their involvement in an alleged kidnapping that ended with a man’s penis being cut off. According to a report by the NY Daily News, one of the group members had conducted business with a medical marijuana dispensary owner and knew him to be a wealthy man. One of the group members allegedly told the three others that the man had buried large amounts of money in the desert and convinced them to help him kidnap the man and have him direct them to the buried money.
The group allegedly showed up at the man’s home, robbed the man and his girlfriend, and then placed them in the back of a van. From there, they drove the couple to the desert to the spot where the group thought the man had buried the money. While at the spot, the group cut off the man’s penis and took it with them after they poured bleach over the man to destroy any DNA evidence.
The man’s girlfriend was able to flag down a police officer by running–while bound and gagged–for over a mile. One of the men was recently arrested in Prague. The four have been charged with kidnapping for ransom, aggravated mayhem, torture, burglary and a sentencing enhancement for inflicting great bodily injury. In convicted they face a potential sentence of life in prison without the possibility of parole.
Life in Prison Means Life in Prison
It used to be the case that a life sentence meant only twenty to thirty years, however that has recently been changing. As of lately, juries and judges are sentencing those convicted of serious offense to life in prison without the possibility of parole.
Parole is what used to let people with “life sentences” out of prison well before the end of their life. However, with the new trend to keep offenders in prison for life–without even the possibility of letting them out–prisons are becoming more crowded with offenders that committed the offense decades ago.
And while California’s three-strike rule was recently overturned, this does not help those sentenced to life in prison without the possibility of parole in cases where they were sentenced for a violent crime, because the new law repealing the three strikes rule doesn’t apply to violent offense.

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After an investigation that lasted over a month, investigators arrested four men who are suspected to belong to a Southern California drug trafficking ring. The men, who are alleged to have imported cocaine, heroin, and other drugs to the United States from Mexico, are all being detained awaiting trial. They each face sentences that could be longer than they could serve in their lifetime.
According to a report by NBC LosAngeles, police investigators set up an undercover sting operation where an officer attempted to buy drugs from the suspects. Once the officer was in possession of the drugs, other officers obtained a warrant and searched the residence, where police found an additional 107 lbs of methamphetamine, 9.5 lbs of cocaine, ½ lb of heroin, and almost $30,000 in cash.
Police Are Cracking Down on Drug Dealers
If you have been paying attention to the headlines lately, you will have noticed that police are tightening down on drug dealers across the State of California. Not just large-volume dealers, like the ones in this story, are at risk. Police are even setting up sting operations to catch small-time, neighborhood dealers more than in years past.
When it comes to punishments, the amount of the drug possessed does not always matter. This is because there are only a few tiers of possession and, whether you are at the top end or the bottom end doesn’t make any difference in the sentence you will receive.
California has also taken new approaches to hunt down drug dealers versus casual drug users like Assembly Bill 721, authored by Assemblyman Steven Bradford, D-Gardena. He reasons that “too many people are getting caught up in the prison system with nothing more than a small amount of drugs for personal use.” This will apply felony drug-transportation charges to individuals involved in drug trafficking or sales instead of average day to day users.
There Is No Such Thing As a Non-Serious Drug Crime
All drug crimes are serious in the state of California. Some people are deceived because the state has a liberal stance on marijuana consumption; however, that same stance does not necessarily apply to other more serious drugs. For instance, in California, a first-time offender convicted of possession with intent to distribute faces a fine of up to $1,000 and five years in state prison.
Once you have one conviction on your record, any following convictions are treated more seriously. Although California’s “three strikes” law was recently repealed, that does not change the fact that repeat offenders are punished harshly in California.

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In a victory for civil rights advocates across the country, the US Supreme Court refused to hear the State of California’s appeal hoping to reverse an earlier ruling that required the State to make meaningful reform to address the State’s overcrowded prisons.
Several years ago, the US Supreme Court ruled in favor of a group of inmates claiming that the overcrowding in California prisons was so bad that the conditions were unsafe. Most notably, they argued that proper medical attention could not be given to all inmates. The State has done all that it can to avoid complying with that ruling. This recent denial is the final nail in the coffin, so to speak, of the State’s options to avoid compliance.
While the exact requirements are quite confusing and beyond the scope of this blog post, the bottom line is that California prisons will have to cut about 10,000 inmates from the prison system. Now. This does not necessarily mean letting people go with no strings attached. The State has until January to come up with a plan to decrease the prison population.
What Can California Do To Decrease Prison Overcrowding?
The State is considering a number of options to decrease the overcrowding in it’s prisons. The first is to rely more heavily on drug treatment and mental health services rather than incarceration.This should divert many incoming inmates to these other services rather than landing them in prison. Rehabilitation has been seen as more effective as incarceration in relation to recidivism.
Second, the State is considering spending $300 million dollars to ship inmates to private prisons or prisons located in other states, such as Mississippi, Arizona, and Oklahoma. Of course, while this would decrease prison population, it would also cost the State of California a hefty sum and would rely on other states to do our work.
Another possible avenue for inmate reduction is to focus on low-threat offenders, such as juveniles and the elderly, who may have long prison sentences. They would go through a review session first and must qualify under specific criteria. For the elderly, however, it has been seen that they are less likely to return to prison after the age of forty. Both juvenile and elder groups, it is argued, are less of a threat to the community or may be better held in an alternative location, like a juvenile facility or a half-way house. Other groups they are looking into as well are the seriously ill, immigration violators, and other nonviolent perpetrators.

Sentencing reforms have also been taken into effect, such as the reform of the Three Strikes Law. In the past, no matter how minor or nonviolent an individual’s crime was for his or her third felony, it immediately led to a life sentencing. However, with the reform, the third felony must be considered as “serious” or violent, like murder.

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The ever-popular device manufacturer, Apple–mother of the iPhone–has announced that the next generation of the popular phone will use biometric authentication to unlock it. Biometric authentication is not an unfamiliar technology, especially for those fans of spy movies. The technology, which has been around for a few years in other applications, verifies a user’s identity by their unique fingerprint.
While many look forward to the new technology, certain repercussions of the technology remain alarming. For example, a recent article by Wired notes that, as the technology becomes more prevalent, it might affect our constitutional rights. Indeed, the article explains that, under the current legal system, courts can require defendants and witnesses to hand over non-testimonial evidence, such as physical evidence, say a key to a box. However, the courts cannot require a defendant or witness to incriminate himself by forcing him to testify against himself.
You Have the Right to . . .
The right to be free from self incrimination is commonly known as “pleading the fifth,” and refers to the Fifth Amendment to the US Constitution. That Amendment guarantees that citizens will not be required to testify against themselves. However, the right only applies to “testimonial” evidence. Testimonial evidence, the article explains, is evidence which “reveals the contents of your mind.”
The concern over fingerprint evidence is this: currently, courts cannot require a witness or a defendant to divulge a password, because doing so would require the defendant to “reveal the content” of his mind. However, if passwords are not combinations of letters and numbers that we keep in our minds, but are our unique fingerprints, perhaps courts could require defendants provide their “passwords” at trial.
Who Will Be Affected By the New Technology?
This would probably have the largest effect on white collar crime and identity crimes, where the use of a specific password would be at issue. Don’t be mistaken, the Fifth Amendment and all that it stands for will still apply in all contexts, however, biometric authentication might act as a way around the privilege in some cases.

However, this technology can actually affect any individual who uses the iPhone who stores information that could be used against them in a court of law. Therefore, it is important to know your rights in this area.

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In the justice system, there is one path for adult offenders and another for juvenile offenders. The adult system focuses on deterrence, retribution, punishment, and, to a lesser extent, rehabilitation. The juvenile system, however, is focused exclusively on providing rehabilitation and guidance to the offending juvenile with hopes of decreasing the chance of any future infractions.
Along those lines, generally speaking, the system allows many juveniles to serve sentences that do not include incarceration. Even when a sentence does include incarceration, it is not typically in an adult jail, but rather in a “youth camp” or “juvenile hall.” Sentences in the juvenile justice system tend to be centered around community service, probation, removal from unsafe environments, etc.
However, there are a few ways that a juvenile aged 14 or older might end up in the adult criminal justice system. First, the California legislature has determined that there are some crimes for which even juveniles should be tried as adults. These are generally very serious crimes that may carry long prison sentences with them. For example, a juvenile charged with murder will almost certainly be “directly filed” into adult court. This means that the juvenile offender will never appear before a juvenile judge but instead will go immediately to adult court. The decision whether or not to “direct file” a juvenile offender rests solely with the prosecutor.
Second, if a juvenile is charged with one of several aggravated offenses, and has committed a prior offense, the case is required to go straight to the adult system.
Third, the prosecutor can file for a juvenile fitness hearing to determine whether the juvenile defendant is suitable for rehabilitation. In this hearing, the judge will consider several factors, including:
1. The degree of criminal sophistication exhibited by the juvenile;
2. Whether the juvenile offender can be rehabilitated before juvenile court jurisdiction expires;
3. The juvenile’s previous delinquent history;
4. The success of previous attempts by juvenile court to rehabilitate the juvenile; and
5. The circumstances and gravity of the offenses alleged to have been committed by the juvenile.

If, after considering these factors, the judge believes that the juvenile offender is not amenable to rehabilitation, then the juvenile offender can be transferred to adult court and tried as an adult.
Once a juvenile is in adult court, there are only very few limitations on the sentence that the juvenile can receive. For the most part the juvenile will be sentenced in the same way an adult would be sentenced.

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