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Public Facebook Communications Deemed Disclosable to the Defense, and There May Be a Constitutional Argument to Obtain Private Facebook Communications

Posted By admin 2018-05-28 19:55:11

The Supreme Court of California found this week that public Facebook communications are disclosable to the defense pursuant to a lawful subpoena. Criminal lawyers have circulated this ruling, Facebook v. Supreme Court, widely in the Los Angeles defense community that I am part of. However, another important course of argument for the defense to pursue that has not received as much attention is also alluded to in the Facebook decision. In my view, the defense may also be able to argue that federal limits on disclosure of private or restricted electronic communications are unconstitutional when they undermine Fifth and Sixth Amendment rights.

The Stored Communications Act (SCA) imposes a federal limit on compelled disclosure from Internet sites, including Facebook. The SCA declares that, generally, service providers like Facebook may not disclose stored electronic communications except under specified circumstances. Exceptions include when a social media user consents to production of communications that she posted, and when such communications are compelled by law enforcement through search warrants or prosecutorial subpoenas. The defense, until this week, was long at a disadvantage when it came to obtaining production of electronic communications from servers like Facebook.

This week, the California Supreme Court ruled in Facebook v. Superior Court that public posts fit the SCA’s lawful consent exception, and that a provider must disclose public communications pursuant to a subpoena that is authorized under state law. Private or restricted communications between Internet users are deemed protected. There is some ambiguity to this ruling. For instance, how does a court distinguish public and private? Does a user need to set her entire profile as “public” in order for the communication to fall within an exception? Is there a limit on the number of people a communication can be sent to before it falls within the exception and can be compelled? The Court also left open whether accounts that were public and then changed to private could be subpoenaed. These issues are ripe for litigation.

Importantly, the Court also did not resolve the issue of whether the SCA is unconstitutional to the extent that it purports to afford providers a basis to refuse to comply with defense subpoenas. The defendants in the Facebook v. Superior Court matter argued that the SCA infringed their federal constitutional rights under the Fifth and Sixth Amendments to a fair trial, to present a complete defense, and to cross-examine witnesses support their subpoenas. No court has ever found the SCA to be unconstitutional on this ground. The Court of Appeal rejected this argument on the basis that a criminal defendant’s right to pretrial discovery is limited, though it has observed that the SCA might eventually need to be declared unconstitutional to the extent that it precludes enforcement of such a trial subpoena issued by the trial court itself, or by defendants, with production to the court.

Given the Court of Appeal’s observations, and the Supreme Court of California’s decision to decide the case on other grounds, it seems that defendants may be able to raise this constitutional argument when electronic communications are treated as restricted or private and thus not producible. I seek production of social medial communications in many of the criminal cases that I defend, and I am very excited to litigate this issue in the future.

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Supreme Court Reminds Defense Lawyers that the Defendant is the Master of Her Defense

Posted By admin 2018-05-21 19:13:46

The Supreme Court held in McCoy v. Louisiana that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. In doing so, the Court overturned a Louisiana inmate’s death sentence because his lawyer had told the jury against the inmate’s objection that the inmate was guilty. This case is an important reminder for defense counsel about important ethical limitations on their role as counsel.

The majority in McCoy acknowledged that the defendant’s lawyer was “in a difficult position: he had an unruly client and faced a strong government case.” The defense lawyer’s apparent purpose in McCoy was to demonstrate that the defendant was suffering from a mental defect and incapable of forming the crime’s requisite specific intent. This was a reasonable, but unethical, strategy to help his client avoid the death penalty.

I find it helpful to return to the California Rules of Professional Conduct to confirm my ethical obligations to the client, court, public, and other counsel. Each case involves unique ethical considerations, even though the roles of counsel and the client are seemingly clearly defined. For instance, a criminal defendant’s lawyer may be responsible for what the Court describes as “trial management,” including what evidence to object to and what arguments to pursue. On the other hand, the defendant has the right to make certain fundamental decisions, including whether to plead guilty or waive the right to a jury trial, as well as the decision to maintain one’s innocence. These distinct roles can rub against each other in contexts like in McCoy, where a client if found to meet the low threshold of being fit stand trial, but may not, from the lawyer’s perspective, be making a reasonable tactical decision for her case. Ultimately, McCoy reminds defense counsel that clients who are fit to stand trial must respect a client’s autonomy.

The Court’s ruling in McCoy highlights the principle that the client alone is the master of his defense. This precept finds resonance in the Sixth Amendment, which grants the right to put on a defense directly and personally to the accused-not to his lawyer and not to the state. Accordingly, my approach is to offer well-researched, candid legal advice to my clients on the strength of the case against them, and all other relevant factors. I explain to my clients my opinion on whether it is best to enter a guilty plea or go to trial, and make sure they understand the relevant factors they must weigh to decide which course of action to take.

Overall, I think it is extremely important to having meaningful dialogue with clients about fundamental decisions that they must make for their cases. Defense lawyers must remember that, at the end of the day, it is the client whose life is on the line, and effective representation requires us to respect our clients’ autonomy while providing them with all relevant information and thoughtful legal advice.

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The Sanctuary Defense: New Policy and Possible Pitfalls

Posted By admin 2017-04-18 20:26:14

The Trump presidential administration has publicly announced on numerous occasions that they intend to intensify their efforts to identify and to deport illegal aliens currently living within the United States, even those who have committed no violations of the law other than living in the US without legal authority. In March of 2017, Attorney General Jeff Sessions unveiled plans to expedite the deportation of illegal immigrants who have been convicted of crimes and are being housed in federal correctional facilities.

In response to this assault on undocumented immigrants, many communities have openly labeled themselves as “sanctuaries,” meaning they offer some measure of protection to illegal aliens by limiting their cooperation with federal authorities. Under the anti-commandeering doctrine announced by the U.S. Supreme Court in 1997, states and localities are not obligated to aid the federal government in enforcing a federal scheme like national immigration proceedings. Nevertheless, in January of 2017 president Trump issued an executive order threatening to withhold federal funds from so-called “sanctuary cities.” The legality of Trump’s order is tenuous at best, but it is another clear signal that his administration will use any method they can to attack illegal immigration, even if that means going after persons with legal status who merely protect illegal aliens from federal detection.

According to federal criminal law, specifically 8 U.S. Code § 1324, Bringing in and harboring certain aliens, any person who, “…knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation,” is guilty of a serious federal crime. The penalty for this felony can be up to five or ten years in prison depending on the facts. And while prosecution of these federal felonies used to be somewhat uncommon, it seems that under the leadership of Attorney General Jeff Sessions, U.S. Attorneys Offices across the country may receive new guidance and directives which advise them to take a closer look at these type of federal felonies.

Under the same statute anyone who simply conspires to hide illegal aliens from federal authorities or aids or abets in the process of hiding illegal aliens from federal authorities is also breaking the law. The same steep penalty of potential federal prison also applies. This provokes an important question: can religious organizations be prosecuted for offering “sanctuary” to undocumented immigrants?

Historically, places of religious worship have been a safe haven for vulnerable populations, such as illegal immigrants. Still today many churches, temples, synagogues etc. offer food, water, comfort, and shelter to desperate people, a vital service for any civilized society. Generally speaking law enforcement officials have afforded a certain level of respect to religious organizations that provide such unconditional kindness to any and all who seek their refuge. Many undocumented persons have sought the aid of religious organizations especially when they fear detainment and deportation by federal authorities. In 2011 the Department of Homeland Security (DHS) issued a policy document referred to as the “Sensitive Locations Memo.” In it, DHS describes how and to what extent Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) can execute their enforcement actions in so-called “sensitive locations” such as places of worship. The general policy is that ICE and CBP should not disturb religious places of worship, and any enforcement actions in these locations requires prior approval from the appropriate supervisory official. The memo does allow for certain necessary actions in sensitive locations under emergency situations referred to as “exigent circumstances.” Moreover, the new presidential administration may soon amend or completely rescind the Sensitive Locations Memo. Further, this memo is already being violated in sanctuary cities across the country, such as Los Angeles, where ICE agents are appearing in courthouses to detain undocumented aliens, who have court proceedings, and who have done nothing wrong aside from being undocumented in the first place.

In keeping with the historical respect of places of worship, there is a special legal exception to the laws against harboring illegal aliens that is afforded only to religious organizations and its members; the sanctuary defense. The special immunity of the sanctuary defense is only applicable to very specific religious members under strictly limited conditions. According to subsection (C) of the Bringing in and harboring certain aliens statue, It is not a violation of the law, “for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.”

According to the explicit language of the statute, the sanctuary defense only applies to the harboring and transportation of illegal aliens who are working within the religious organization as a minister or missionary. Therefore, actively hiding undocumented immigrants from federal authorities, who are simply members, not ministers, is not a protected behavior under the sanctuary defense. Moreover, a “bona fide nonprofit religious organization” is defined as an organization exempt from taxation as described in the Internal Revenue Code of 1986. Therefore, if your organization is not a recognized 501(C)(3) you should not expect to be covered under the sanctuary defense. Further, the undocumented persons must be volunteers, not paid staff of the religious organization. Although the illegal alien missionary may be provided basic living necessities such as shelter, food, and medical treatment, they cannot be provided an additional wage or salary.

Note that the law does not require that the religious organization or its members to publicly proclaim themselves to be a “sanctuary” group. In fact, announcing intentions to potentially use the sanctuary defense may be counterproductive as it may alert federal authorities to the location of illegal aliens and also were the sanctuary defense to fail, such an announcement helps prove one of the requisite intent elements of the criminal statute, under 8 U.S.C. §1324, by showing authorities that the organization or people involved “knowingly” harbored undocumented aliens. Unfortunately, places of worship who publicly declare themselves to be “sanctuary” organizations are not afforded any additional protection from prosecution under the law.

The laws surrounding sanctuary and the potential use of the sanctuary defense are extremely nuanced and complex. Any organization seeking to potentially act as a sanctuary should consult with an experienced attorney to make sure they understand all the potential risks, including the increasingly real risk of criminal prosecution.

 

Karen L. Goldstein is a Los Angeles criminal defense lawyer who has been dedicating her time to learning how to provide pro-bono legal services involving sanctuary defense.  (888) 445-6313. kgoldstein@klgcriminaldefense.com

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MS. GOLDSTEIN NAMED TO SUPER LAWYERS RISING STAR LIST IN SOUTHERN CALIFORNIA FOR 2017

Posted By admin 2017-04-05 19:39:44

Karen L. Goldstein has been selected to the 2017 Southern California Rising Stars list for Criminal Defense. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Learn More MS. GOLDSTEIN NAMED TO SUPER LAWYERS RISING STAR LIST IN SOUTHERN CALIFORNIA FOR 2017

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