What is a Public Defender? Here is what you need to know.

Later, the Supreme Court further explained that this right also required the government to provide a Defense Attorney, at the public’s expense, for defendants who could not afford an Attorney.  Eventually - and this is an interesting reflection on American Society - the court ruled that the Attorney had to be “competent” and stay awake during a trial.

The theory behind this right is that an everyday person accused of a crime has no chance against a skilled and highly trained prosecutor without a defense Attorney to ensure the process is fair, and the evidence reliable.

Yes, somewhere in history, our ancestors learned that prosecutors are not always right, honest and fair. The right to an Attorney at public expense for the poor is a uniquely American counter balance to that problem.

Now, the right to an Attorney for the poor has detailed rules.  Today in California, a Defendant has a right to a court appointed defense Attorney if:

1) charged with a misdemeanor or felony (includes DUI charges, but not traffic infractions); and

2) qualify as “indigent” under the current guidelines set by the county or local where the case is being heard.

When a Defendant meets these qualifications, the court must appoint a Defense Attorney at little or no cost to help the Defendant.

Are Public Defenders Real Defense Attorneys?

You bet. In most counties, there is a separate county division called the Office of the Public Defender, which is the collection of Attorneys hired by the county to act as the court appointed defense counsel for the poor or “indigent”. These attorneys are known as “Public Defenders”.

All Public Defenders are licensed by the State Bar of California to practice criminal defense law.  In fact, often, they are the best criminal defense trial attorneys around. This is due to the fact that they work every courtroom every day, they how their judges are likely to rule, and they know what to expect from the local juries. It is true that many young lawyers start their trial careers with a Public Defenders Office, but the reason for this is more often due to the excellent training available to new Public Defenders, than to the new commers’ inability to get a higher paying job.

Are Public Defenders Available To Everyone Who Asks for One?

No. You must first apply for a Public Defender in court and then qualify as “indigent” under the county’s rules. Generally, if an accused, or the family of the accused, can come up with the money for a private attorney, the accused will not qualify for a public defender. An unwillingness to borrow money for an Attorney, or to sell an asset such as a car does not make one “indigent”.  Generally the courts require that a defendant must have no access to resources for a private Attorney before the qualify for a Public Defender.

Are Public Defenders Free?

No. Almost all California Counties now charge a minimum fee for use of a Public Defender. And many counties now will charge the accused for the services of the public defender on a sliding scale based upon a person’s income, and the court will enforce payment of the bill.

Serious penalties apply to those who try to mislead the court about their ability to pay for a public defender.

How Do You Apply For a Public Defender?

You must appear in court on your assigned court day, and inform the judge that you want to request the help of a public defender. This problem is one giant disadvantage for people accused of Driving under the influence (Vehicle Code section 23152) because it means they do not get help prior to their court date.  And in DUI cases, there is a lot to do prior to a court date.  For example, a person arrested for a DUI offense in CA only has 10 days to schedule a DUI hearing to protect their drivers license, and a Public Defender’s help comes too late for that deadline.  And worse yet for the DUI defendant, the Public Defender will not help with DMV hearings at all.

Practice Tips:

In most traffic citation cases, a Public Defender is not available, because the Defendant is not charged with a misdemeanor or more serious crime.

Public Defenders have limitations.

Public Defenders are generally a great value for those who qualify.  However, they do have limitations that private Attorneys do not have.

One of the downsides of requesting a Public Defender is that you have to go to court to request one, and you may not get one you like.  In most misdemeanor cases, a private defense attorney can go to court for you, and you can always hire the one that works best with you.

Public Defenders are also generally assigned to deal with one case for a Defendant.  If the Defendant has several cases in different courts, a different Attorney may be appointed on each, making coordinating the defenses difficult.

Public Defenders will not assist with issues outside of the courtroom, such as DMV hearings (important in DUI cases), and generally will not talk to defendants or provide consultations prior to being appointed in court.  For defendants with outstanding warrants, this means it is unlikely that a Public Defender can help before getting arrested on the warrant.

A person who wishes to discuss a case with a Public Defender prior to appearing in court should call the Public Defenders Office in their county to see if a pre court consultations is possible.

My advice is you are not sure if you qualify for a public defender?  Shop around for a private attorney first, and find out how they can help more, and faster than a public defender.

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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Flow Chart That Makes the Criminal Process Easy To Understand

For most everyday people stuck in the court system the procedures and dates are all just a tangled mess of confusion. Unless you’ve been brain damaged by law school, terms like “Arraignment”, “pre trial” and “indictment” probably have no meaning, but may be very stressful.

Well- I have good news. The Bureau of Justice Statistics has created an excellent flow chart for the misdemeanor and felony criminal process that makes it all understandable. By looking at the chart, you can see where a case is at in the system, and what lies ahead. It covers all cases from DUI misdemeanors to capital murder cases. I am happy to say that I whole-hartedly recommend using it to figure out what is going on if you are not sure about the status of a case.

Criminal Justice System Flow Chart

To use it - just click on the thumbnail image to the left.  Then just follow the line to the status you are trying to understand. There is a separate line for Felonies (Top); Misdemeanors (middle) and Juvenile (Bottom).  Through all three lines, you can see what avenues are available for getting out of the system, and what is next in line.

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Former Orange County Sheriff Convicted, But Prosecutors Overcharged the Case.

Santa Ana   On Friday afternoon in a hot and stuffy Santa Ana Federal Courtroom,  former Orange County Sheriff Mike Carona got the best news of his life.  It came as a court clerk read the verdicts:  not guilty of Conspiracy, not guilty of Mail Fraud, not guilty of one count of Witness Tampering.  Upon hearing the news, Carona sobbed with happiness and laid his head on a courtroom table.

Unfortunately, there was bad news too.  The jury found Carona guilty of one felony count, a second charge of Witness Tampering.  Although the former Sheriff escaped conviction on 5 of the 6 corruption charges that could have sent him to federal prison for 20 years, he was convicted on one count.  Sheriff Corona is now a convicted felon.

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For this one conviction, Carona faces possible probation, up to a maximum of 10 years in prison. Legal commentators expect Corona to get probation or a light sentence in light of the lack of seriousness of the conviction and former Sheriff Carona’s record of community service.

Despite this bad news, Sheriff Carona was very happy with the outcome.  “It is an absolute miracle” he beamed at a press conference, and “I’ve a couple of incredible lawyers”. But he was also grateful, and admitted he was not perfect.  “I’ve made some  mistakes . . .  and I own those.”  He asked the crowd and on lookers to judge him by the good acts he accomplished.

Jurors had to listen to evidence of the Sheriff’s back office sexual encounters, and secret audio recordings where the Sheriff used racial slurs.

The verdicts show the jury rejected the central claims of the governments case against Carona.  Despite an investigation that included secrete wire taps and surveillance,  and bombarding the jury with evidence of the Sheriff’s infidelity, the jury said “No” to 5 out of 6 of the government’s claims of wrong doing.

There were many persons of color on the jury, and the racism did not sit well with them.  The only African-American on the jury admitted that he had a tough time being fair, and had to focus on the judge’s admonitions to be fair and objective.

The juror admitted after the trial:  “I heard the n*******r comment and that sort of closed my mind into thinking whatever he is charged with he is guilty.”

But he and other jurors reported they followed the law, even though they did not like his conduct.   “The prosecutors did a great job of proving that he had affairs.  Did they prove he was guilty of all charges? No.”

An interview with the prosecutor during the post trial press conference showed a tired Government Attorney who was somewhat embarrassed by the outcome.  For the prosecutors, the outcome was, as one lawyer quipped, “a F.R.E.D. - a freaking ridiculous economic disaster”.  The government spent hundreds of thousands of dollars investigating and prosecuting Carona (according to estimates published in news sources), and achieved relatively little.

At the press conference near the courthouse lawn, prosecutors put on their game faces and reported a victory (with a crackling voice):  “Justice was done in this case.  We are pleased with this guilty verdict.”

An Attorney familiar with the case pointed out that young or over ambitious prosecutors will at times “over charge” a case against a high profile defendant to advance their own agenda.  History is soaked in examples of prosecutorial over charging, and any cynic need only look to the Duke University Lacrosse debacle to see how it works.

“This is why a defendant is presumed innocent until proven guilty.  Charges do not guarantee a conviction.”

Editor

Email: cdort@dortlaw.com

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Not All Prosecutors Are Honest. Santa Cruz Prosecutor Guilty of Corruption in State Bar Trial.

Santa Cruz County Assistant District Attorney, George Dunlap got some bad news recently. After a long, multi year battle, he lost a State Bar trial over several charges that he misused the power of his position as a prosecutor, and violated ethics rules for Attorneys. The decision leaves him facing a multi year suspension of his law license, and caused him to resign as a prosecutor.

Dunlap is generally recognized in the local community as a skilled prosecutor who handles the most serious cases in the county. But his trouble arise out of several disturbing incidents that formed the body of the State Bar’s numerous charges against him.

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In one charge, Dunlap was found to have violated ethical rules and misused his position as a prosecutor when he tried to prevent a police officer from arresting his girlfriend for a DUI.

During his trial, the State Bar found that Dunlap was a passenger in a car driven by his girlfriend who was under the influence of alcohol. At the time, Dunlap was a prosecutor for the San Joaquin County District Attorneys Office.

The car was stopped by police who began a DUI investigation. Dunlap interfered with the investigation when he showed the investigating officer his District Attorney badge, and told the officer “This is Bullshit”, “Are you really going to go through with this?” in an attempt to get the police to let the driver go.

The State Bar also found that Dunlap later interfered in the prosecution of his girlfriend in the case by making unauthorized court appearances on behalf of the DA’s office while he had an impermissible conflict of interest. After being told by his boss, Elected District Attorney John Phillips, to “Stay the fuck out of the case”, Dunlap made court appearances on the case and attempted to prevent the court from issuing a warrant for the woman after she failed to comply with court orders.

Dunlap was fired from his position as Assistant District Attorney “for cause” as a result of the incident. Then, despite the firing, he was hired by the Elected District Attorney in Santa Cruz County, Bob Lee, as a felony division prosecutor.

In another charge, the State Bar found that Dunlap was once arrested for a Felony DUI after an auto collision. A police investigation of the collision, which left several people injured, concluded that Dunlap was driving with a Blood Alcohol Content of nearly 2x the legal limit.

Because there were injuries in the accident, Dunlap was originally charged with a felony and faced prison time if convicted on all charges. The State bar found that although the charges were later reduced to a misdemeanor, Dunlap failed to notify the State Bar of the Felony charges as required by regulations.

State Bar prosecutors were seeking complete disbarment of Dunlap, but did not get it. The final ruling by the State Bar Judges recommended that the State Supreme Court suspend Dunlap’s law license for a period of 5 years, but allow him to apply for reinstatement after 2 years suspension, a program of ethical testing, and a showing of rehabilitation.

Local Defense Attorneys were happy with the ruling. Many felt that Dunlap used illegal harassment to coerce witnesses to testify for the prosecution, and used dishonest tactics to get convictions. At least1 defense Attorney filed an appeal of a murder case based in part on the allegation that Dunlap committed prosecutorial misconduct in getting a witness to testify falsely at a trial. Another referred to Dunlap as “Fat Bastard”, rather than use his name.

Others in the local community felt that Dunlap got railroaded by baseless charges.

Dunlap continued to work as a prosecutor in Santa Cruz during the case. He fought the State Bar charges for years as his own Attorney, then hired a private Attorney to assist in the actual trial. He testified in his own defense, but the State Bar judges ruled that his testimony and lack of memory was “not credible” and lacked honesty.

There is an unconfirmed report that the State Bar offered Dunlap a plea deal of 5 years actual suspension if he admitted guilt without a trial. The result at trial was better than this offer for Dunlap, and the trial paid off.

Dunlap has a right to appeal the decision. If he does not win an appeal, the State Supreme Court is expected to ratify the decision and actually impose the multi year suspension.

Within days after the decision, Dunlap quit his job as a Santa Cruz County Assistant District Attorney for “personal reasons”.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Tip: Do Not Sleep In Your Car if You Have Heroin in Your Pocket.

Palm Springs, CA. Actor Gary Dourdan of the famed investigative series CSI, was arrested on Monday morning, April 28, 2008, for felony possession of cocaine, heroin, and other drugs while sleeping in his car alone. Although he plays a law enforcement officer in the imaginary TV world, he now faces multiple felony charges that could send him to prison in real life.

Officers of the Palm Springs Police Department contacted Dourdan on a Monday morning after noticing his car parked in the wrong direction on the side of the road with the interior light on. According to reports, he was asleep in the car alone at approximately 5:25 a.m. He appeared dishelved and disorientated.

41 Year Old Gary Dourdancopyright Palm Springs PD

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Dourdan was released several hours later after posting bail, and promising to return to court for an Arraignment.

According to attorney sources, police will always investigate a person sleeping in a car at the side of the road, especially after a special event such as a music festival. “Police know that intoxicated persons, drug addicts, and others on the run, will sleep in cars on the side of the road.” Police often catch car thieves, undocumented immigrants, and even homicide suspects sleeping in their cars. “Its an easy way to find a felon” according to one attorney.
Unconfirmed reports indicate that Gary was at the Cochella Music Festival in Indio prior to the arrest. He was arrested along a common route from the festival back to Los Angeles for thousands of music fans. Dourdan lives in the Venice area of Los Angeles County. It is not known why he did not stop at a hotel.

There was no evidence that Dourdan distributed or shared his drugs with other music fans.

He is presumed innocent and may have a jury decide his fate if he wishes. It is not known what impact the arrest will have on his employment as an actor who plays a law enforcement officer.

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Although possession of any amount of cocaine or heroin is a felony that carries a state prison term as a maximum sentence, Dourdan may qualify for a special drug diversion authorized by Penal Code section 1000. Attorney sources tell us first time offenders that qualify for the special “PC 1000″ program are offered supervised drug treatment in place of a prison sentence, and if they complete the treatment successfully, they can avoid a permanent felony conviction.

However, evidence of distribution of a controlled substance prevents eligibility for the program.

What’s the moral of the story? Drug possession and sleeping in a car do not mix well.

Editor

Email: cdort@dortlaw.com

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How to Look Up Common Penal Code Violations

The first step in taking care of a criminal case, whether it is a routine DUI or serious robbery case, is to figure out what the charges are. Many times a court or prosecutor will make this difficult for everyday people because they will refer to charges by number, rather than name. The following information can help you sort it out.

When a person is charged with a crime, it means they are accused of violating a law or statute. Most of the time, California criminal charges come from alleged violations of the California Penal Code, and sometimes from the Vehicle Code or Health and Safety Code.

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Some penal code violations are classified as Misdemeanors, which means they carry a maximum sentence of 1 year in the county jail. Other vioaltions are classified as more serious Felonies, which carry a maximum sentence of at least one year in State Prison.

Some crimes can be charged as misdemeanors or felonies depending on the facts, and are known as “woblers”. Petty theft, is an example of a penal code “wobbler” that can be a misdemeanor or felony, depending on the value of the property stolen.

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Below is a table of common penal code violations with their section numbers, and standard bail settings as published by the Superior Court of California for the County of Sacramento. If you want to read the actual text of the statute (law), it can be found in the California Penal Code by the section number.

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How Does A Defense Attorney Get A Not Guilty Verdict? Talent and a Sense of Justice.

On October 24, Santa Cruz County Assistant Public Defender, Kristin Carter, got news of another jury trial win. A jury of 12 people returned an acquittal on her clients 2 charges, vandalism and criminal trespass.

The verdict meant that Ms. Carters client was Not Guilty of charges that could have sent him to prison. Instead of an undeserved prison sentence, the client was going home.

This win was no fluke for Kristin Carter. Like most trial wins for a Criminal Defense Attorney, this verdict was the product of not only hard work, but talent and a sense of justice.

Ms. Carter is a 15 year veteran of the Public Defenders Office. She represents the poor who are unable to hire private attorneys. Most of her clients never pay for her services, and when they do, she does not get the money. It goes to the county coffers.

In this particular case, her client did not have any money to hire a private lawyer and the court appointed Carter to represent him. For the client, it was a Public Defender or no attorney to help with his felony case. Fortunately for the client, he landed in good hands.

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By the time Ms. Carters case made it to the trial date, the only charges left on the District Attorneys Complaint were misdemeanor vandalism and criminal trespass. The case started off much worse, with felony burglary and other charges.

Although the Assistant District Attorney prosecuting the case originally filed serious felony charges, such as burglary, they did not withstand pre-trial challenges. The most serious of those charges were dismissed after a preliminary hearing.

It was at that point the Superior Court Judge ruled in favor of the defense arguments, and found that the prosecutor, a young and ambitious DA, had over-charged the case. In short, the facts and evidence could not support an original charge of felony burglary.

The judge reduced the charges over the DAs objections, and Carter’s client’s jail exposure dropped drastically. Because of pretrial work, the felony charges were reduced to misdemeanors by the judge. That was in itself a win. But Carter’s sense of justice told her there was more work to do for this client.

As Attorney Kristin Carter saw it, the reduction to misdemeanors was not the end of a a real defense attorneys work. This client was not guilty all the way, even of misdemeanor charges, so she kept working. When the District Attorney refused to dismiss the case completely, Carter demanded a jury trial on the remaining charges.

Although jury trial work is very stressful and difficult for an attorney, even when well paid, she does it for reasons other than money. Carter is not afraid to take a case to a jury when the government oversteps their authority, or distorts the facts. In fact, she loves it. And this was such a case.

Ms. Carter has completed jury trials on nearly every type of criminal case, from reckless driving to homicide. She has handled simple 2 day trials, and those that last 6 weeks or more. She rarely loses, mainly due to a well evolved pattern of analytical and persuasion skills that most often pulls juries to her side.

A quick study of Ms. Carters final argument to the jury in Judge Stevens’ Courtroom reveals why she has won so many of her 85 jury trials.

“I’ve always dreamed of the case where I could just get up here and tell the jury that the prosecution has not meet their burden of proof, and that it would be so obvious, I could just sit down. This might be that case,” she tells the jury.

“But I am afraid. I am afraid that maybe there was something you missed, some piece of evidence that appeals to you, or something the prosecutor said that I need to correct.”

Within minutes, she had convinced the jury something was wrong with the case.

Carter’s 20 minute final argument then moved forward in a straight path, step by step outlining the reasons for the jury to give her, and the innocent client, a “Not Guilty” verdict.

First, the defendant did not have the required criminal intent to make a trespass:

“He did not intend to enter his neighbors apartment”. “He damaged a wall . . . . He was investigating noises. . . . the noises may have been in his head, but he was investigating noises.”

Second, she argued that the neighbors’ fear was not evidence sufficient to convict the defendant of anything:

“No one disputes that [the neighbor] was scared, but fear is not an element of the crime of trespass.”

Third, she pointed out that the defendant did not enter the neighbors’ apartment like the prosecutor alleged. The evidence showed he made a hole in a wall, but did not go through it.

“He did not enter the apartment. He did not breach the plane,” she argued with a clever football analogy that rang loudly to the Raider fans in the jury.

The jurors understood the analogy and saw the replay in their minds. The defendant did not break the plane. There was no score. They could easily understand.

Lastly, Carter pointed out that the DAs implication in the opening statements that the defendant tried to avoid capture was flat out wrong. With a sincere, passionate, delivery, she told the jurors:

“He did not run, he did not hide. He came home, took his pants off and went to bed. . . . When the police knocked on his window, he responded.”

Ms. Carter’s final touch was a slightly tattered chart meant to illustrate the different levels of the burden of proof, and the presumption of innocence. She calls it a “Guiltometer”. While placing the worn chart on the wall for the jury to view she tell the jury: “it was in my car” and gets a laugh in a tense courtroom.

“Its a bit tattered, like the Constitution”.

As she goes through the chart’s list of levels of proof, one by one, she points out:

“if you think he may be, or probably is guilty, that is still not enough to convict. . . . You must have an abiding conviction of the truth of the charges.”

After the final arguments were over, and the prosecutor was done rebutting Ms. Carter’s argument in the best way he could, (he commented that Ms Carter had “poo pooed” the prosecution evidence) attorneys discussing the case on the courthouse steps were generally in agreement - Kristin Carter had won another case with persistence and skill. It was just a question of time before the jury came back with a “not guilty” verdict.

Carter’s husband, Douglas Fox, also a defense trial attorney, commented that Carter was pressured by the court to plead her client guilty to the misdemeanors, and it was a good thing she did not give in to the pressure. Pleading guilty in this case would be a true miscarriage of justice.

“How long will it take?” the attorneys asked each other on the courtroom steps, each exchanging estimates of time before the jury returned with a verdict. Would it be 2 hours? Half an hour? 20 minutes? Seven minutes is considered the record.

As expected, before the end of the afternoon, the jury sent word to the judge that they were done. A verdict was reached. When the judge officially asked for the verdict in open court, the foreman stated they had a unanimous verdict. 12-0 for Not Guilty on all charges.

It was a complete victory for the defendant and Ms. Carter. Her client breathed a deep sigh of relief that was visible as it left his shoulders. From felonies to not guilty on all charges, the verdict saved him an undeserved state prison sentence.

A case that was originally charged as a felony burglary by the Santa Cruz County District Attorney, had ended in a unanimous Not Guilty verdict. Ms. Carter was proven right again, and the verdict justified the need for more talented public defenders like Carter to protect the innocent who cannot afford a private attorney.

According to tradition at the Santa Cruz County Public Defenders Office, Ms. Carter was entitled to a celebration party for the win at the Public Defenders Office. A reward of after-work refreshments, including French bread, brie, and fresh fruit, along with well deserved congratulations, were dished out to this persistent defense attorney who prevented a miscarriage of justice.

Ms. Carter occasionally accepts private cases where a quality defense can make a difference. She can be reached at: (831) 429-1311.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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How Safe is Hwy 1 in Malibu? Barron Hilton Joins Long List of Privileged Drunk Drivers on the PCH

Think driving to work on Hwy 1 along the Pacific Coast in Malibu to Santa Monica would be a dream commute? It may be way more dangerous than the idyllic image portrays. Not only is the 2 lane road narrow and undivided, with a blinding sun glare in morning and afternoon, it is also crowded with inattentive tourists starring at the ocean. But if you also consider the danger posed by local celebrities on that famous 2 lane road, the true life threatening danger appears.

On any given day, you may find Britney Spears in a manic 80 mph dash down Malibu Canyon Rd. for a Starbucks fix with a son sitting in her lap,

or Mel Gibson coming home from a bar, swerving from lane to lane, ready to burst out of his German made Benzo and launch into a anti-semetic road rage fury.

Then there is Lindsay Lohan, driving around jacked up on champagne and cocaine, bouncing off parked cars and sidewalks on her way home from binge drinking and purging. And you may find Nicole Richey, a repeat offender, stoned and high on cocaine driving to Burbank Airport.

Or Nick Nolte, who was described by highway police as:

“drooling” and “completely out of it” when he was pulled over in Malibu for driving like an intoxicated person in his black Mercedes. Nolte, 61, failed a field sobriety test after a California Highway Patrol officer stopped his car on the southbound side of Pacific Coast Highway, near his home” in Malibu said Police Spokesman Capt. Dan Bower.

Now, a new danger to the lives of innocent dream commuters in the morning rush hour has surfaced - the younger brother of celebrity party star Paris: 18 year old Barron Hilton.

Barron Hilton was arrested on suspicion of driving under the influence of drugs or alcohol (Vehicle Code section 23152(b)), on the Pacific Coast Highway at 8:10 a.m. on Tuesday, February 13th, 2008.

Yes, 8:10 a.m. On a weekday.

He was stopped by CHP officers on Hwy 1 , after a concerned citizen reported a drunk driver swerving on the road way. Police reported that Barron nearly hit a guardrail as he attempted to stop for their flashing patrol lights.

The 18 year old Hilton was arrested after police contacted him and observed what they reported as “objective signs of intoxication”. His eyes were red and watery, his speech slurred. They detected a strong odor of an alcoholic beverage on his breath.

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After the police contacted Barron, they instructed him on standard field sobriety tests, which the police claim he failed. It was not clear if he was given a field breath test. Attorney sources state that the police are not required to take a breath test at the location of the stop. “A field breath test on a portable machine is only one piece of evidence the police can use to justify a DUI arrest.”

During a search incident to arrest, police discovered the Hilton was in possession of a forged drivers license. He may have used the fake ID to purchase alcohol, or enter age restricted Santa Monica area bars or clubs.

From the moment the police stopped his Benz, Barrons day got worse. After being arrested, he was transported to the Lost Hill Police Station where he elected a breath test from a permanent intoxilizer machine. The results were reported as 0.14, nearly 2x the legal limit for adults.

The legal limit for adults is 0.08 % blood alcohol content, but for minors under the age of 21, the legal limit is lower.

When Barron was booked in to the Lost Hills Police Station holding cell, his original charges where 2 misdemeanor DUI counts: violation of Vehicle Code section 23152(a) and 23152(b), which carry a max sentence of 1 year in the county jail. While in jail, an additional felony charge was added for the forged drivers license. As a felony, the forgery charge carries a possible penalty of 1 year in the state prison.

Altogether, Barron faces 1 year in the county jail, and 1 year in the state prison as a maximum sentence. Attorney sources believe that prison time is unlikely. As a first offender, he may qualify for probation, and the felony charge may ultimately be reduced to a misdemeanor.

His original bail was set a $5,000, but then raised to $20,000 because of the felony. Reports on entertainment web sites stated that his sister, Paris, refused to post his bail or help get him released.

Barron, the Heir to a billion dollar fortune created by his father, did not have the $20,000 needed to bail out in his pockets. The police could not locate it in his wallet, and the jail would not accept american express cards.

Eventually, Barron was bailed out with assistance of friends.

Barron Hiltons LA County Jail Booking Sheet

Barrons first court date is an Arraignment, scheduled for April 14, 2008 in the Los Angeles County Superior Court, Malibu Courthouse. The courthouse is just blocks from where Barron was arrested. At the arraignment, Barron will plead guilty, or not guilty.

He is presumed innocent and has a right to a jury trial. Defense Attorneys routinely plead not guilty for their client to gain time to review the evidence and negotiate plea agreements. In this case, attorneys will be seeking to get the Felony charge dismissed or reduced to a misdemeanor, which does not carry possible prison time. A trial, if necessary, would take place in a few months.

The penalties for a first time DUI in LA County are nearly standardized. Generally, a first offender will receive a 30 day jail term that is “suspended”, or paused. In place of the suspended jail term, the first offender can expect a few days in jail before being convicted, then a probation term of 5 years.

Terms of the DUI probation generally include several days of sheriffs work program, substance abuse classes, a fine of $2000 and other restrictions on obeying laws.

Is Barron Hilton still driving? Probably.

The DMV is expected to suspend Barrons drivers license for a period of four months. However, in California, drivers arrested for DUI have 10 days from the date of the arrest to request an “Administrative Per Se Drivers License Suspension Hearing” from the Department of Motor Vehicles Driver Safety Office. Most private defense attorneys schedule the hearing for their clients. But Public Defenders, who represent the poor, do not help with DMV suspensions.

Because he has the right to an appeal of the DMV action, Barrons license may remain valid for several months.

Hwy 1 between Santa Monica and Malibu is a celebrity highway, and the route of choice for drunk celebs driving home to Malibu from LA partying. It is the only way home from may LA hot spots to the Malibu Hills.

Should something be done about it?

Or is it inevitable that an impaired Celeb will one day kill a family of tourists from Oregon?

What is going on here?

Whats the moral of this story?

Use a helmet if you are driving Hwy 1 in Malibu.

Look for follow ups to this story as we follow the case.

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Recommended Publication: DUI Process: Clear Your Drunk Driving Record.