WHERE DO WE GO FROM HERE?

Usually when I set out to write something here it is because I have an idea. I think there’s an issue out there that I can add a perspective to, be part of the solution to something. Not today. All I have are questions.

It has now been about six weeks since our courts ceased to function in a way even close to normal times. It will likely be another month before we even begin to inch back towards normalcy. I fear it may be much longer than that before we have a fully functioning justice system again.

Jury trials are the lynch pin of the criminal justice system. Sure, most cases resolve short of trial, but the prospect of trial is the great equalizer. If prosecutors and judges (and sometimes even the accused) don’t act reasonably, we have the option to “take it to the box,” and let twelve members of our community step in and resolve our dispute.

Conducting trials seems next to impossible if we are to comply with social distancing and social distancing seems here to stay for the foreseeable future, unless we want to return to shelter-in-place orders shortly after they are lifted. Picking a jury requires bringing anywhere from sixty to one hundred potential jurors into a courtroom. No courtroom can handle that capacity if people are expected to keep six feet of distance. Once selected, a jury sits in the box, in close proximity to one another. Courtrooms are designed so that the jury is in close proximity to the witnesses as they perform their function of assessing those witnesses credibility and acting as finders of fact.

It seems certain to me that it will be much harder for litigants to receive their day in front of a jury for at least the remainder of 2020. Orange County, for instance, has already announced that they will limit the number of jury trials that can be conducted at one time and that they anticipate significant difficulty in compliance with jury summonses.

A lack of access to jury trials will significantly impact prosecutors’ and courts’ incentive to resolve cases. The only immediate consequence of a failure to make a reasonable offer of settlement is likely to be that the defendant sits around waiting, not an attractive option for those in custody particularly as jails become breeding grounds for the virus.

So, that’s the problem. What is the answer? I do not know yet. But I do know our justice system does not function without access to jury trials and jury trials are not something that can happen virtually; they require bringing people together in the same place, often in close proximity. Some how, some way, we must be able to continue to do that or the system as we know it will be more broken than it was before the pandemic.

WHO WILL WATCH THE WATCHERS

There are few places in which the balance of power is as uneven as in criminal prosecution. On one side, you have the government, with essentially unlimited resources. On the other, you have the defendant, an individual mustering whatever resources they can to fight the immense power of the government.

The Founding Fathers and courts ever since have recognized and sought to fashion ways to attempt to even this playing field to some extent. This is because, ideally, we want criminal prosecutions to be about justice. Were the government to simply view their primary goal as “winning,” they could likely do so almost all of the time due to the vast imbalances in resources, power, and information.

In this and my next blog entry, I’ll be taking a look at two recent California cases that underscore the difficulty of putting these ideas into practice. Today, I’ll be talking about the informational disadvantages that exist between the government and individual defendants and the systems in place that aim to balance that inherent inequity, if not always successfully.

Brady v. Maryland was a landmark decision by the United States Supreme Court in 1963 that held that the prosecution must turn over all exculpatory (essentially all favorable) evidence to the defense. For example, in Brady, the prosecution had failed to turn over to the defense in a capital case a written confession from the co-defendant admitting to having been the person who actually committed the killing.

More recently, the Orange County Informant Scandal unraveled the capital case against Scott Dekraii when it was uncovered that the prosecution had failed to disclose evidence related to informants used in the prosecution that would have undermined their, and the Sheriff deputies who acted as their handlers, credibility. That case is a prime example of the principle behind Brady. The information was such that the prosecution was in a unique position to know about it and it was only through the heroic work of Deputy Public Defender Scott Sanders and a good deal of luck that it was uncovered.

As stated in Brady, “Society wins not only when the guilty are convicted, but when criminal trials are fair." This sentiment was echoed and underscored by the 4^th District Appellate Court in the decision that is the subject of my next blog. In Dekraii, the prosecution failed in their duty to put fairness ahead of winning.

A place where this concept gets incredibly difficult is the disclosure of police officer misconduct. Police agencies are considered part of the prosecution team, meaning information in the possession of a police agency is treated as information that the prosecution also knows or should know about and must turn over if exculpatory. Problematically, California has some of the most robust laws in the country when it comes to protecting police officer personnel records, to the point where police unions take the position that even the prosecution is not entitled to know information that they are under a Constitutional obligation to disclose.

In this case, the Los Angeles Sheriff Department, in an effort to comply with Brady, maintains an internal list of personnel whose records may contain Brady information so that prosecutors can make appropriate disclosures to the defense. The Deputies’ Union then sued its own department, seeking to prevent it from sharing such information.

Think about that for a moment. The prosecution is under an obligation to share with the defense information about deputy misconduct that may be exculpatory. The Sheriff’s Department knows what deputies fall into this category and indeed keeps a list of such deputies. But the union’s position is that it is unlawful to share that list with the prosecution! By definition, if the union’s position is correct, the prosecution would be unable to comply with their Constitutional obligations designed to ensure fairness to the defense in order to protect dishonest deputies.

Fortunately, on August 26^th, in Association for Los Angeles Deputy Sheriffs v. Superior Court, the California Supreme Court rejected that position. In a relatively narrow holding, the Court declared that while the Brady list maintained by the department did constitute confidential information under the statutes protecting police officer personnel records, disclosure of the list to prosecuting agencies did not violate that confidentiality.

It is worth noting what a narrow exception this case creates. Law enforcement agencies may alert prosecutors that an officer has information in their personnel file that constitutes Brady information. The prosecution, as obligated, may then share that information with the defense when required. The defense still must file a motion demonstrating the materiality of such information to even find out what it is. And this still very onerous process is one that a police union saw fit to challenge all the way to the state Supreme Court.

More reform in this area is incredibly necessary as the scales are still tipped heavily in favor of the government to the detriment of the defendant even when the government complies with all of its obligations in a trustworthy manner. And, oh by the way, when they do not it is almost impossible for the average defendant to discover the omission. Further reform must happen.

In the next blog, a companion to this one, I’ll explore a recent decision underscoring the prosecutor’s obligation to pursue fairness and justice ahead of victory.

WHO WILL WATCH THE WATCHERS

As our country and its experiment in democracy continue to grow and evolve, one of the most confounding questions we continue to wrestle with is how to properly regulate and police institutions that we imbue with great power. The founding fathers sought to solve this problem by avoiding the concentration of power in any one branch, institution, or individual and created the ingenious system of checks and balances.

Such a system, however, only works if a number of preconditions are in place. The parties must maintain some relative equilibrium in power, they must not hold undue influence over one another, and most importantly, the forces that could serve to corrupt one party must not have similar incentives/abilities to corrupt the party we hope to have the police.

“Ok,” you’re wondering, “what is the point of all this, Frances?”

Recently, we have watched the failure of this system in two very important and high profile circumstances.

On a local level, it seems to be clearer and clearer that the Orange County Informant Scandal will be a scandal in name only, with the bad actors who brought about the scandal escaping unpunished. On a national level, while the cookie is still crumbling, we have witnessed a Justice Department, which is ostensibly supposed to operate independently with the aim of…well, justice…, operating as a politically motivated partner of President Trump.

Here in Orange County, the California Attorney General recently tried to quietly announce that their investigation into the informant scandal was complete. Despite ample evidence of misdeeds and perjury committed by law enforcement and the Orange County District Attorney’s office, the investigation is simply over without a single prosecution and not even so much as a report. The complete inaction of the Attorney General’s office as well as the United States Attorney’s Office, who have also unconvincingly claimed they were investigating the scandal without a single thing to show for it, will serve as a stain on both these offices and the decision makers who were utterly derelict in their duties.

Meanwhile, after a two year investigation by Special Counsel Robert Mueller, a position created specifically to ensure an investigation conducted independent from political pressure and foster the public trust, Attorney General William Barr did not wait 24 hours before decimating that trust and politicizing the process via an intellectually dishonest letter to Congress purporting to summarize the findings of Mueller's report. It was a transparent, politically motivated move designed to influence public perception of the report’s findings prior to its release. As I’ve said, this drama is still unfolding and we now know that Special Counsel Mueller personally objected to the content of the summary and Congress is weighing action against Barr including calls for his recusal from the investigation and the possibility of impeachment. However, much of the damage may have already been done as Barr’s letter has already significantly influenced the public debate over the report’s significance and in today’s lightning fast news cycle, that influence is hard to undo.

So, what went wrong and how do we fix this? I think there are two answers. First, watchdogs must be truly independent. In each of these cases, the entities charged with oversight were far too closely aligned and intertwined with those they were to be watching. Second, the vigilant public is the only true solution. In the context of the Mueller report, it appears the public is doing its job. This story is not simply going away as the Trump administration and Barr seemed to have hoped it might. In contrast, the public scrutiny of the informant scandal seems to have waned. After a flurry of coverage, the story became a national one. The California Attorney General and United States Attorney's Office expressed concern and assured the public that they would investigate and act. And then…they simply waited for the story to die. Sadly, it appears that they may have correctly calculated that public interest in this story would not persist.

Ultimately, all of the entities we are talking about derive their power from the public. As such, they must answer to the public when the public so demands. But, when the public is not vigilant, the incentive to perform the watchdog role subsides.

At the end of the day, we are the watchers. Each and every one of us. We cannot, unfortunately, trust that the watchdogs will be watching unless we are willing to vigilantly watch them.

WILL COOPERATING WITH POLICE HELP MY CASE?

Resisting arrest, even when innocent of any crime, is a criminal act in and of itself that can be used to make you appear guilty of other charges. Is the inverse true then? Does cooperating fully with the police help you in your criminal defense case, and can it help reduce your charges or have them dismissed?

Unfortunately, the scales are not perfectly balanced. While interfering with and harassing a police officer will put you in cuffs, being subservient and telling them everything they want to know will not get you out of them. But it might help. To get to the bottom of the question of whether or not cooperation helps you, we need to examine another imbalance inherent in the criminal justice system.

SEPARATING THE TRUTH FROM THE LIES

After you have been arrested for a crime, the law enforcement officers present may try to get you to talk, or to cooperate with their investigation, after reading your Miranda rights. They may say that you are not in any trouble and they just want some answers. They may even claim that you will face lesser charges if you give them some evidence upfront, like where your accomplices went or what it is you stole. This is where things get deceptive and you need to take a grain of salt.

While it is illegal for you to lie to a law enforcement official – this can constitute obstruction of justice if an investigation or questioning is underway – it is not illegal for them to lie to you. When the officer says they will help you out if you talk, they probably won't. Or they probably can't due to the limitations of their job description. To this end, your cooperation should never become your own self-incrimination.

After you have been arrested, simply say you want to use your Fifth Amendment rights to remain silent and wait for an attorney to represent you. While you technically aren't helping them with your silence, you certainly aren't being uncooperative or disruptive. And remember: most police officers are just men and women doing their jobs and who do not want any trouble – if you do not want to remain respectfully quiet and calm for your own sake, you can at least do it for theirs.

If you need an Orange County criminal defense attorney to represent you after you have been charged with a crime, you should look no further than The Law Office of Frances Prizzia. Our lead attorney, Ms. Prizzia, was rewarded the 2015 Avvo Clients' Choice Award for criminal defense! And we offer FREE case evaluations to all inquiring clients.

WHY DO I NEED AN ATTORNEY?

Why do you need a criminal defense attorney after you have been charged for a crime? The question has crossed the minds of probably everyone who has ever been arrested for what they considered to be a minor violation. Others still know they are innocent of any wrongdoing and assume that the court will surely see things the same way. That's the point of the criminal justice system, is it not? To sort out the wrongdoers from everyone else?

There is a longstanding mantra that the law and litigation are less about knowing and more about proving. And this is one of many reasons why you really do need a criminal defense attorney, even for misdemeanor charges.

REASONS YOU NEED A CRIMINAL DEFENSE LAWYER

Difference between knowing and proving: Your rights as described under the Fifth Amendment of the Constitution of the United States permit you to stay silent when you are being arrested. This is not so you can collect your thoughts, it is so you don't say the wrong things and incriminate yourself of a crime you didn't commit. Innocent people are convicted of crimes every year, mostly because they only knew they were innocent but were unable to prove it.
Penalties can be reduced: Imagine the scenario where you are caught "red-handed" while stealing something. Do you need a criminal defense attorney now, when the evidence is so clearly stacked against you? Yes! Even when a conviction is practically guaranteed, the penalties never are. An experienced defense lawyer can fight to have your sentencing minimized, possibly making it so your arrest and conviction never show up on your criminal record.
One mark is all it takes: And speaking of criminal records, the moment a single mark shows up under your name, you must be aware that employers, landlords, educational institutions, and more will start to turn away from you. Misdemeanor or a felony, it doesn't matter – to many people, a conviction is a conviction is a conviction.

You may also wish to consider that the federal government itself recognizes the importance of a criminal defense attorney. When someone is arrested, the very same Fifth Amendment entitles them to a public defender if they cannot afford their own; albeit, public defenders are often overworked and impersonal, but this does not diminish the importance of their role in our country. Laws are complicated, to say the least, but a lawyer has dedicated their career to understanding, interpreting, and upholding them.

If you live in Southern California and have been arrested for a criminal act, you should contact The Law Office of Frances Prizzia. Our Orange County criminal defense attorney has a long history of successful case results to her name and an "Excellent" Avvo Rating. Find out what she can do for you by calling 888.392.8114 for a free consultation.