The manslaughter rules in california, and other parts of the United States, are very confusing and even contradictory. Consider involuntary intoxication...I am currently handling an appeal for a woman convicted of murder who was undergoing chemotherapy for breast cancer and taking numerous drugs to help her deal with the side effects, including ambien and prednisone. As a result of the treatment, her mental functioning was extremely impaired, to the point where she ended up killing her husband, shooting one of her sons, and trying to kill herself. Mental health doctors testified she was having a psychotic episode to the point where she did not know what she was doing, as a result of the drugs. The judge refused to give any manslaughter instruction, or an instruction that if the jury found she was psychologically unconscious she would not be guilty of murder.
If she had been acting in self-defense, or provoked, the court could have given a voluntary manslaughter instruction. Since she did not have such defenses, the court ruled that she could not have any manslaughter instruction, even though there was strong evidence she was not acting with malice. And the rule would seem to be that since malice is required to support a murder conviction, whether first degree or second degree, then if malice is negated by her psychological condition the jury should have been instructed on voluntary and involuntary manslaughter. However, because she was involuntarily intoxicated, given that she was taking medications for a health problem that she did not know would cause psychotic episodes, the court should have instructed on involuntary manslaughter, or even unconsciousness. Under such circumstances it is most likely that a jury would have at worst found her guilty of involuntary manslaughter, or even not guilty because she was not conscious.
This entire problem was addressed in a recent movie by Steve Soderberg called "Side Effects" where the protagonist in the movie was in fact found not guilty under circumstances similar to what i have described above. The twist in the movie was that the protagonist was faking, and thus she got away with murder. In the case I am appealing, my client was not properly defended by her trial counsel and she was erroneously convicted of murder. Unfortunately life does not always imitate art, although i expect her conviction to be reversed upon completion of the appeal.
If you are in trouble with the law, contact criminal attorney Alan Fenster immediately! Call our Beverly Hills office at (310) 273-3661 to schedule a free initial consultation.
www.alanfensterlaw.com
Friday, November 29, 2013
PLEA BARGAINING
Even the most famous of criminal lawyers can lose a trial from time to time. Mark Garagos, the well-known Los Angeles criminal defense attorney and media personality, lost the Scott Peterson murder trial, and the Winona Ryder petty theft trial, to name but a couple. So when you are looking for a lawyer to defend against criminal charges, it is important to hire someone who knows how to negotiate the best possible outcome for your particular circumstance, as well as being a strong advocate in the event you must go to trial.
I would like to provide an example of successful plea bargaining involving one of my clients. The young man became involved in an argument with several other young men in a parking lot one early morning. Harsh words were spoken and the client pulled out a BB gun and fired several pellets into the chest of one of his antagonists. The victim almost passed out from fear, but suffered only minor abrasions. The client jumped in his car and sped away, but eventually the police apprehended him and he was charged with Assault with a Dangerous Weapon and Assault with Intent to Commit Great Bodily Injury.
The client's father, a very wealthy man, hired a well-known criminal lawyer in Los Angeles for a hefty sum of money. The lawyer worked out a deal where the client would plead guilty to the Great Bodily Injury charge, and would be placed on three years felony probation with 30 days of Caltrans. At the end of probation the charge could be reduced to a misdemeanor. Not a bad deal, but the father didn't think it was good enough and eventually came to me.
Based on my review of the situation I found that there were many mitigating factors in the client's background which were not originally known to the District Attorney. I caused a Private Probation Report to be prepared which included many letters of good character, a psychological profile, and other relevant information. The court room prosecutor would not budge off the offer made to the prior lawyer, despite the new information. I ended up going to the supervising prosecutor in the district where the case was set, a prosecutor I knew and with whom I had a very good relationship. After further negotiation, we reached a disposition for a misdemeanor battery charge with some community service. The client and his father were, of course, ecstatic.Obviously a good working relationship with the prosecutor's office can be very important in reaching a successful plea bargain; thorough investigation and preparation are also very important elements in achieving a desired outcome. And never overlook the value of persistence. This website contains numerous examples of the efficacy of utilizing such techniques in the criminal arena.
If you are in trouble with the law, contact criminal attorney Alan Fenster immediately! Call our Beverly Hills office at (310) 273-3661 to schedule a free initial consultation.
www.alanfensterlaw.com
I would like to provide an example of successful plea bargaining involving one of my clients. The young man became involved in an argument with several other young men in a parking lot one early morning. Harsh words were spoken and the client pulled out a BB gun and fired several pellets into the chest of one of his antagonists. The victim almost passed out from fear, but suffered only minor abrasions. The client jumped in his car and sped away, but eventually the police apprehended him and he was charged with Assault with a Dangerous Weapon and Assault with Intent to Commit Great Bodily Injury.
The client's father, a very wealthy man, hired a well-known criminal lawyer in Los Angeles for a hefty sum of money. The lawyer worked out a deal where the client would plead guilty to the Great Bodily Injury charge, and would be placed on three years felony probation with 30 days of Caltrans. At the end of probation the charge could be reduced to a misdemeanor. Not a bad deal, but the father didn't think it was good enough and eventually came to me.
Based on my review of the situation I found that there were many mitigating factors in the client's background which were not originally known to the District Attorney. I caused a Private Probation Report to be prepared which included many letters of good character, a psychological profile, and other relevant information. The court room prosecutor would not budge off the offer made to the prior lawyer, despite the new information. I ended up going to the supervising prosecutor in the district where the case was set, a prosecutor I knew and with whom I had a very good relationship. After further negotiation, we reached a disposition for a misdemeanor battery charge with some community service. The client and his father were, of course, ecstatic.Obviously a good working relationship with the prosecutor's office can be very important in reaching a successful plea bargain; thorough investigation and preparation are also very important elements in achieving a desired outcome. And never overlook the value of persistence. This website contains numerous examples of the efficacy of utilizing such techniques in the criminal arena.
If you are in trouble with the law, contact criminal attorney Alan Fenster immediately! Call our Beverly Hills office at (310) 273-3661 to schedule a free initial consultation.
www.alanfensterlaw.com
Sunday, November 10, 2013
SUCCESSFULLY AVOIDING CRIMINAL PROSECUTION
One of the golden rules of the criminal defense bar is that a client should never talk to the police when he/she has been arrested for some alleged criminal conduct. However, a creative lawyer should never blindly follow a so-called "golden rule". This is particularly true when an innocent client has been arrested. In such situations, the creative criminal defense lawyer should leave no stone unturned to help the client avoid a criminal prosecution in the first place.
Just because someone has been arrested for a crime does not mean he must thereafter be prosecuted. Law enforcement must bring the police reports and any other evidence bearing on the arrestee's guilt to the applicable prosecutor's office for review to determine whether criminal charges should be filed and the case taken to court. The prosecutor must decide whether there is enough evidence to believe there is a reasonable probability that the charges to be filed can be proved beyond a reasonable doubt. If the evidence submitted does not meet that requirement, then the case is not filed and the arrestee need not even go to court for an arraignment.
If the person arrested employs a lawyer immediately after his arrest, the lawyer should make every effort to assist law enforcement in becoming aware of exonerating evidence and thus preventing the case from being filed. For example, in the area of spousal abuse, a husband and wife may get into a heated argument where the wife [or sometimes the husband] gets so upset that the police are called and a false or exaggerated claim is made of physical abuse. In Los Angeles as well as most jurisdictions in the United States, if the police are called on a domestic violence claim, after the O.J. Simpson fiasco, somebody is definitely going to jail, no matter how minor the problem may be. In Los Angeles, bail on a charge of domestic violence is automatically $50,000.
In such situations, the police report will usually reflect sufficient grounds for the case to be filed by the prosecutorial agency. Police officers are trained in the laws of spousal abuse, and it is almost a certainty that their reports will cover all bases, even if they have to fictionalize or exaggerate the statements of the "victim". However, if the innocent arrestee hires an attorney before the case goes to the prosecutor, it is sometimes possible to intervene with the investigating officer before he gets to the prosecutor and demonstrate how the claim is false, thus preventing the case from getting filed. For example, recently I represented a man who was accused by his wife of hitting her several times before she called 911 and the police arrived. When the police contacted the wife, she was crying, disheveled, and had bruises on her face. Sounds like a slam dunk filing, right?
Wrong. It turned out that the wife had a previous felony conviction for assault with a deadly weapon on her husband, and during the argument between the husband and wife he had called his mother, a former police officer, and told her that his wife was attacking him again. I contacted the investigating office and asked him to speak to the mother and check out the criminal record of the "victim". As a result of this intervention, no criminal charges were filed, and an innocent man did not have to even go to court.
Now back to the golden rule of never letting your client speak to the police. After his arrest and before any charges were filed I was hired by a man charged with felony assault with a baseball bat. The victim was in the hospital with a concussion and there were several witnesses to the assault. Again, a standard filing, one would think.
Wrong again. The assault by my client was the culmination of various events where he was attacked by friends of the victim, and in retaliation he confronted one of these friends while the victim was present. After a fight with one of these friends, the victim ended up fighting with one of the client's friends, and eventually my client had to come to his friend's assistance by hitting the victim over the head with a baseball bat. With my heart in my mouth, I brought my client to meet with the investigating officer, along with other witnesses who had information about the events that led up to the brawl. After interviewing my client [who had recently applied for a law enforcement job so any criminal filing had all would have eliminated his employment in law enforcement] and our other witnesses, the investigating officer recommended that no charges be filed against my client! So much for the golden rule.
If you are in trouble with the law, contact criminal attorney Alan Fenster immediately! Call our Beverly Hills office at (310) 273-3661 to schedule a free initial consultation.
www.alanfensterlaw.com
Just because someone has been arrested for a crime does not mean he must thereafter be prosecuted. Law enforcement must bring the police reports and any other evidence bearing on the arrestee's guilt to the applicable prosecutor's office for review to determine whether criminal charges should be filed and the case taken to court. The prosecutor must decide whether there is enough evidence to believe there is a reasonable probability that the charges to be filed can be proved beyond a reasonable doubt. If the evidence submitted does not meet that requirement, then the case is not filed and the arrestee need not even go to court for an arraignment.
If the person arrested employs a lawyer immediately after his arrest, the lawyer should make every effort to assist law enforcement in becoming aware of exonerating evidence and thus preventing the case from being filed. For example, in the area of spousal abuse, a husband and wife may get into a heated argument where the wife [or sometimes the husband] gets so upset that the police are called and a false or exaggerated claim is made of physical abuse. In Los Angeles as well as most jurisdictions in the United States, if the police are called on a domestic violence claim, after the O.J. Simpson fiasco, somebody is definitely going to jail, no matter how minor the problem may be. In Los Angeles, bail on a charge of domestic violence is automatically $50,000.
In such situations, the police report will usually reflect sufficient grounds for the case to be filed by the prosecutorial agency. Police officers are trained in the laws of spousal abuse, and it is almost a certainty that their reports will cover all bases, even if they have to fictionalize or exaggerate the statements of the "victim". However, if the innocent arrestee hires an attorney before the case goes to the prosecutor, it is sometimes possible to intervene with the investigating officer before he gets to the prosecutor and demonstrate how the claim is false, thus preventing the case from getting filed. For example, recently I represented a man who was accused by his wife of hitting her several times before she called 911 and the police arrived. When the police contacted the wife, she was crying, disheveled, and had bruises on her face. Sounds like a slam dunk filing, right?
Wrong. It turned out that the wife had a previous felony conviction for assault with a deadly weapon on her husband, and during the argument between the husband and wife he had called his mother, a former police officer, and told her that his wife was attacking him again. I contacted the investigating office and asked him to speak to the mother and check out the criminal record of the "victim". As a result of this intervention, no criminal charges were filed, and an innocent man did not have to even go to court.
Now back to the golden rule of never letting your client speak to the police. After his arrest and before any charges were filed I was hired by a man charged with felony assault with a baseball bat. The victim was in the hospital with a concussion and there were several witnesses to the assault. Again, a standard filing, one would think.
Wrong again. The assault by my client was the culmination of various events where he was attacked by friends of the victim, and in retaliation he confronted one of these friends while the victim was present. After a fight with one of these friends, the victim ended up fighting with one of the client's friends, and eventually my client had to come to his friend's assistance by hitting the victim over the head with a baseball bat. With my heart in my mouth, I brought my client to meet with the investigating officer, along with other witnesses who had information about the events that led up to the brawl. After interviewing my client [who had recently applied for a law enforcement job so any criminal filing had all would have eliminated his employment in law enforcement] and our other witnesses, the investigating officer recommended that no charges be filed against my client! So much for the golden rule.
If you are in trouble with the law, contact criminal attorney Alan Fenster immediately! Call our Beverly Hills office at (310) 273-3661 to schedule a free initial consultation.
www.alanfensterlaw.com
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