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Defending Alleged Teen Shooter: Where Motive Is Hard To Find, Mental Illness Often Lives

Posted By admin 2019-12-06 17:25:07

Over the past month, school shootings have unfortunately become a pertinent topic in California. Earlier this month, a 16-year-old killed himself after supposedly shooting five students at their Los Angeles suburb high school. Two teens died; three others were injured.
More recently, L.A. authorities arrested a 13-year-old middle-schooler because they suspected he planned to commit a school shooting. Other students told teachers they heard the teen threaten to shoot students. Police found evidence to believe the teen had the ability to commit the violent offense and, therefore, arrested him. He will possibly be charged with making criminal threats or attempted murder.

Thinking About Sentencing When The Unthinkable Happens
School shootings are undoubtedly tragic. They shouldn’t happen, and too many people, including children and adults, have lost their lives to gun violence committed by teens. Conversations surrounding this teen violence, however, most often revolve around gun control. That is an important conversation, but so is the value of proper sentencing and treatment of teens accused of violence.

In many school shooting incidents, the young perpetrator takes his own life. Those who do live to face the consequences of their actions face the most severe of sentencing. From a criminal defense and humanity standpoint, it is crucial we ask whether adult-level, life-long sentencing is appropriate for the minors who commit violence in our society. These teens committed awful acts in these cases, but they are still children. They are often children suffering from mental health issues.

There Is More Than A Gun Behind The Violence
Since school shootings have become more common in the U.S., researchers have tried to study the cases and find commonalities among the tragic incidents. While the people involved all certainly have their unique stories, the United States Department of Education claims to have identified some common factors among many of the teens behind the violence:
• History of depression
• History of attempted suicide

What do these common factors tell us? They tell us that underneath the violence was or is a teen struggling with mental and emotional health problems. In many of the school shooting cases, the teens who perpetrate the violence don’t survive; it becomes too late for the community to help them once the immeasurable damage has been done.
In the case of the recent teen arrested based on the suspicion he’d commit future violence, maybe it is not too late to reach him. There are signs of depression and other mental struggles his community could identify and address through the proper medical routes. Mental health counseling, sometimes medication, and even simple improved communication between a kid and his family can make a life-saving difference.

A pediatric study found that teens who self-report mental health problems such as depression are more likely to have access to guns. To compound that concern, other research shows if there is a gun available to a teen, the chance he will commit homicide increases by three times compared to a teen with no access to a firearm. We know the young teen in the recent case did have access to a gun, which further supported authorities’ decision to step in and act upon the suspected threat.

Defending A Teen Is Defending His Right To Hope
When a case involves violence against children by children, emotions run deep. In any criminal case, defendants are entitled to a fair legal process. When the defendant in a case is a teenager – a child, stakes are so high.

A teen facing murder or attempted murder charges has a lifetime ahead of him that will be directly altered by the outcome of the case. As a defense attorney in Los Angles who handles murder and violent crimes cases on a regular basis, the question always remains: will this young client get the chance to try to improve his well-being and outlook on the world through counseling and emotional education, or will the system treat him like a lost cause? And it is my job as a zealous criminal defense attorney to ensure the former and not the latter.

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Is the Federal Prosecution Being Fair In the College Admission Scandal Cases?

Posted By admin 2019-11-13 17:56:01

The current college admission scandal involving several wealthy and even celebrity defendants is an example of the media and wider conversation turning true legal matters into a sort of public soap opera. These federal crime cases deserve more than a predictable punchline. Let’s talk about the moral messages and fairness regarding the prosecution strategies and sentencing in the federal cases.

The Story So Far
There are 52 defendants who were federally indicted in this case, most of them parents who tried to get their children into college through fraudulent test scores or paying to have them recruited into college athletic programs. The defendants have faced federal charges of bribery, conspiracy to commit mail fraud, money laundering, and honest services mail fraud. This also means they could face double digit prison sentences in federal prison.
The most famous of the defendants in the federal cases are actors Felicity Huffman and Lori Loughlin; they both represent the different defense routes taken in these cases. Huffman is an example of someone having taken a plea deal. She already served time for pleading guilty to paying for altered test scores. She was sentenced to 14 days but served 12 days in prison. Another defendant was sentenced to one month in prison for paying for a better ACT score for his child.

And this begs the age old question: is it fair that white collar offenders tend to receive more lenient sentences than other types of federal defendants and other types of federal crime cases? As a federal crimes lawyer in Los Angeles, it is readily apparent that defendants tend to receive more severe prison sentences for drug trafficking, child pornography, and/or RICO charges. Is this fair?

Strategy and Ethics
This question must be considered in the context of prosecutorial discretion and ethics. Federal prosecutors routinely threaten to add new charges to a defendant’s federal case as what some have called a scare tactic. It is a way to try to scare defendants into taking plea deals they didn’t want or maybe don’t deserve to take.

Despite these scare tactics, Loughlin has taken the bolder route of pleading not guilty to her criminal charges and, therefore, awaiting trial. This defense strategy could lead to no prison time if she is found not guilty during trial. The other side of that coin is a guilty verdict, which without a plea deal, could mean much more prison time than several days. And as a result of this decision, she may experience what criminal defense lawyers in Los Angeles refer to as a “trial tax.” – facing increased penalties (more charges, a lengthier prison sentence) simply for exercising her constitutional right to trial.

Has Advantage Become Disadvantage For Defendants?
Cases like this college admission scandal become widely known not just because they involve the wealthy and the famous. There is usually an underpinning of larger legal and societal themes at the core of the issue. In this case, the theme is the societal advantage of wealth.
First, there is the societal advantage that these wealthy parents have and allegedly used their money to secure their kids a leg up into school and the world thereafter. The money helped them help their kids in ways less affluent parents can’t help their own.

Their money helps these same people afford a criminal defense that will more likely help them avoid a conviction or severe sentencing. Less wealthy parents charged with varying types of crime throughout the country deserve a proper criminal defense but can’t always afford to fight like those in these cases.

The judge in this case, Judge Indira Talwani, however, seems set on making an example of the defendants in the college admission cases. She says she hopes incarcerating the men and women will serve as a deterrent for others out there who might be tempted to engage in this same “entitled” behavior. This also begs the question: is it fair to make an example of these defendants just because they are wealthy and famous?

Conclusion
Through today’s constant media buzz, it is easy to think of certain so-called “scandals” as mere pop culture conversation. But these “scandals” are not a joke to the people involved, and they are not a joke in terms of the bigger picture of the ethical, legal matters the notorious cases present.

As a criminal defense lawyer who handles lots of cases involving federal fraud crimes, I have seen how these cases can be twisted to bully defendants. An experienced defense lawyer like me can help see through the prosecution’s strategy in order to best identify the wisest route for my client.

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California Bail Reform Act (Senate Bill 10) Will Not Protect Against Preventative Detention

Posted By admin 2018-08-27 01:50:51

The California Bail Reform Act, Senate Bill 10, proposes to eliminate the bail fee system, but could replace one harmful system with another. The money bail system must be stopped: it undermines the presumption of innocence, leads to false guilty pleas, and disproportionately affects racial minorities and indigents. However, Senate Bill 10 is unlikely to promote pretrial justice and proscribes procedures that could violate due process.

First, Senate Bill 10 excludes broad categories of people from release from custody pre-arraignment. This includes low-level violations if the person has a pending case, and persons arrested for restraining order violations (even if the arrest turned out to be wrongful or the restraining order invalid). Further, the bill would give local courts practically unlimited power to carve out other exclusions from release, resulting in county courts having the ability to detain practically anyone accused of a crime. These overbroad categories render meaningless the presumption in favor of releasing all but a specified few defendants before trial.

Second, the bill provides unfettered discretion for judges at arraignment to order preventative detention. For instance, a court would be able to order detention if the defendant has a pending case or is on probation, regardless of how minor the previous and new charges are. The new system would allow judges to inappropriately hold people in preventative detention without having to set a bail amount.

Third, the incarceration decision is influenced by profile-based risk assessment tools that are not objective assessors of risk. These risk assessment tools take limited information about an individual—including arrest and conviction history—to create a profile, then make a statistical estimate of the likelihood that individual will get re-arrested or miss a court date based on data about other people with similar profiles. These tools tend to reinforce the system’s ingrained biases and lack transparency.

The risk categories required in the proposed legislation are policy choices, meaning that whoever controls the implementation of the tools can decide how broad to make each category. This adjustability of scoring is significant given the proposed scheme in which anyone labelled “high risk” cannot be released pre-arraignment and will have a presumption of preventive detention.

Fourth, the bill would make the probation department responsible for recommending release or detention and conditions of supervised release, while allocating supplemental funding for probation departments depending on how many people they supervise and what level of supervision.

Senate Bill 10 must be reformed to provide for community oversight. It should also include rules requiring judges to look at each defendant’s unique circumstances, and limit the power of county courts to create overbroad categories for presumptive detention.

In the meantime, defense lawyers should continue to thoroughly interview clients about their backgrounds and present detailed, individualized submissions on bail. For instance, if a client falls within a high-risk category for absconding, the defense lawyer should be prepared to show the court that this client has never missed a court date and has strong ties to the community.

Thorough preparedness will also strengthen a client’s chances at release. In my practice in Los Angeles, I prepare both written and oral submissions whenever possible so that I have already presented my client in a favorable light to the judge before the bail hearing. This upfront work will help ensure the court and prosecution are aware of the factors favoring release in spite of the problems with the new bail system.

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U.S. Supreme Court Will Review the Problematic Separate Sovereigns Exception

Posted By admin 2018-07-10 20:48:09

The United States Supreme Court agreed recently to consider whether to overturn a longstanding rule that allows federal and state prosecutions for the same offense. The cert petition filed on behalf of Terrance Gamble was granted, allowing the Court to decide “[w]hether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

Mr. Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama state had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government from prosecuting a person more than once for the same offense, but courts have long held that this only bars reprosectution by the same sovereign. Put simply, under what is known as the “separate sovereign” exception, the federal government may reprosecute a person after a state prosecution (and vice versa). A defendant can therefore be prosecuted by both the state government and the federal government for the same offense.

My firm in Los Angeles practices criminal law at both the state and federal levels, giving me a unique opportunity to observe how the separate sovereigns exception is applied in California. I have noticed (and been disturbed by) duplicative federal-state prosecutions becoming increasingly common. This trend is in part because of the growing scope of federal criminal law. In addition, I think that states are benefiting from the exception to help fill investigative gaps, or refine legal arguments, that led to exoneration at the federal level. (The same goes for the federal government). Furthermore, the separate sovereigns exceptions appears to be applied more frequently in high profile cases, and/or cases involving serious charges that carry serious social stigma. For instance, the Justice Department recently brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

Mr. Gamble’s case is instructive on why the separate sovereigns exception raises serious constitutional issues and is ripe for challenge. For defendants like Mr. Gamble, the separate sovereigns exception can result in a lengthier time in custody. As a result of the duplicative conviction, Mr. Gamble must spend an additional three years of his life behind bars. This result is incompatible with the text of the Double Jeopardy Clause, and with the original purpose of the Clause and federalism more broadly. As Mr. Gamble’s petition for a write of certiorari explains:

The court-manufactured “separate sovereigns” exception— pursuant to which [Mr. Gamble’s] otherwise plainly unconstitutional duplicative conviction was upheld— is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law.

I agree with Mr. Gamble’s position. The purpose of the Double Jeopardy Clause is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to stigma, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. The separate-sovereigns exception cannot be reconciled with this purpose.

That the separate sovereign exception has drawn scrutiny from liberal and conservative justices alike points to its fundamental unfairness. UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. While I am disturbed that the separate sovereigns exception is being applied more readily, I am optimistic that the Supreme Court will find that the exception cannot be squared with the Double Jeopardy Clause and should no longer apply.

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New Ninth Circuit ruling paves way for defense lawyers to argue that prior felony convictions for robbery under California statute should not be treated as “crimes of violence”

Posted By admin 2018-06-11 04:51:01

The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors under the United States federal courts system. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense; and (2) the defendant’s criminal history. I spend a considerable amount of time on each of my federal cases strategizing how to arrive at the most favorable sentence for my clients under the Guidelines. The Guidelines involve a complex series of rules, and it is important for defense lawyers to stay on top of how federal courts interpret controversial areas of these rules.

Thankfully, the Ninth Circuit provided helpful guidance for the defense this past week on cases involving prior felony convictions for robbery. Under the Guidelines, the base offense level for offences can vary depending on whether the defendant has one or more prior felony convictions for a “crime of violence.” The Guidelines define the term “crime of violence” as any offense under federal or state law, punishable for a term exceeding one year, that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) falls within certain enumerated violent offences.

In Edling, the Ninth Circuit found that the district court erred in treating the appellant’s previous robbery and coercion convictions under Nevada law as a crimes of violence. Accordingly, it vacated a sentence for being a felon in possession of a firearm and remanded for resentencing.

In essence, the Ninth Circuit ruled that robbery, under Nevada law, is not a crime of violence because it can be accomplished by instilling fear or injury to property alone. The panel found that Nevada’s robbery statute sweeps more broadly than the Guidelines’ definition of a crime of violence, which requires physical force against a person. The panel further found that the robbery under Nevada law is unlike generic robbery, listed as an enumerated offence clause for crimes of violence, because generic robbery requires danger to the person, not merely danger to property. Similarly, the panel concluded that the new Guideline definition of extortion, also listed as an enumerated offence in the crimes of violence clause, does not include a threat to property.

I view the Edling decision as an exciting win for California, especially for federal clients with prior felony convictions for robbery under California statute. The Edling holding on robbery under Nevada law will likely control the question for robbery prior convictions under California law. The Ninth Circuit has previously ruled in a few cases that Nevada’s robbery statute is materially indistinguishable from California’s robbery statute. Accordingly, the Ninth Circuit should rule in future cases that robbery, under California law, is not a crime of violence. Going forward, defense lawyers should fight against any prosecutor’s claim that robbery in California is a crime of violence.

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