Three Strikes

California Three Strikes Law Change Shows Promise (CA Proposition 36)

In 1994, Californians voted for a new ‘3 strikes’ law on the back of the Polly Klass case, in which a 12-year-old girl was murdered by Richard Allen Davis, a man who some argued should never have been allowed back on the streets due to his lengthy criminal history.  However, lawmakers and lawyers in the state successfully convinced voters to ease up on this penalty, a 25 years to life certainty after a third violent felony and to trust that crime rates would not go up once certain inmates were released from incarceration.

How have the last 10 months since Prop 36 was passed gone?  Everyone from lawyers to the average citizen seem to agree, it’s working just fine.  In fact, it’s working better than anyone expected.  Crime rates haven’t risen; former ‘3 strikers’ have been out of prison for nearly 4 months now and if they have been charged with any additional crimes, they have been minor and only 2% have been charged at all. Compare this with the fact that, on the whole, the state of California has a 16% re-arrest rate for former inmates who are were not imprisoned due to the 3 strikes rule and that’s a pretty good average.

What these changes, and success also mean is that there are over 2,000 three strikers who have petitioned the court for release under Prop 36.  Their lives, and the lives of their families and friends, will certainly be changed for the better now that they no longer have to live under the shadow of a long or life sentence.  Who can apply for release?  The new changes apply to anyone whose 3rd strike was of a non-violent nature, and had no prior convictions for sexual assault, drug trafficking, or several other violent crimes.

 

First District Court of Appeals in Oakland Overturns Murder Conviction

The First District Court of Appeal in Oakland has unanimously determined to reverse the decision of two lower courts to effectively overturn a murder charge against Jamie Thomas in the death of Samuel Navarro.  This higher appeals court decision was made on the basis that jurors in the original trial were not given the option to consider that Thomas had acted in a fit of passion.  Thus, the second-degree-murder charge against him (for which he has already been sentenced 40 years to life) has been overturned.

The original incident happened in 2007 in Oakland, on Pearl Street – a traditionally peaceful neighborhood.  It began with a complaint concerning Thomas’s car blocking the Navarro’s own.  A series of arguments followed, with one ending in several men ganging up on Thomas, beating him.  Testimony revealed that, at that point, Thomas retrieved a rifle from his car – at which point, a threatening Navarro dove for the weapon and Thomas fired.  The original Alameda County jury’s decision was that Thomas had not been acting in self-defense and he was convicted of second-degree murder.  In 2012, an appeals court upheld this decision, including new arguments from the defense that hearing Thomas’s own rap lyrics, which encouraged violent random shootings, had unduly prejudiced the jurors. However, they were not allowed to consider a manslaughter verdict at the time and this is the key sticking point for the First Circuit Court of Appeals.

Importantly, the difference between murder and manslaughter is difficult to decipher in California law.  The main dissimilarity between the two is planning; in order to prove murder, the prosecution must be able to show that there was forethought in the crime.  This, if Thomas indeed acted in the heat of passion, a voluntary manslaughter charge would be more fitting and the penalties lessened to a great degree ( 3, 6, or 11 years in state prison versus the 40 years that Thomas has been sentenced).

Reexamination of Evidence Leads to Prison Release of Modesto Man Convicted of Arson (CA Penal Code §451 )

72-year-old George Souliotes was convicted of arson (CA Penal Code §451 – malicious arson) and murder (under the “felony murder rule”) over 16 years ago.  Though he maintained his innocence in the incident – the deaths of three of his tenants in an apartment building he owned (6-year-old Daniel Jones, 3-year old Amanda Jones, and their mother Michelle, 31).  Witnesses in the original case testified that Souliotes harbored animosity toward the family, who he was trying to evict.  Evidence at that time included the presence of a particular chemical on his shoes and at the scene and undependable eyewitness testimony that placed him in the apartment complex just before the fire.  After two different trials – one of which ended in a hung jury and the other which resulted in his conviction – the Santa Clara University Law School branch of the Innocence Project took the case on.

When the group of law students began investigating, they wanted to revaluate the evidence against Souliotes, including the state criminalist’s testimony that the flammable liquid on his shoes matched what they believed to be the origin point of the blaze.  By 2005, they were able to prove, through chemical testing, that the liquid on the shoes was not at all the same as the flammable liquid that had led to that fateful night’s conflagration.  Since this new evidence has arisen, Souliotes has been rightly released – and informed by a federal judge that his original set of defense attorneys were incompetent, as they had called no witnesses to testify on his behalf during the second trial.  It seems as if someone should apologize for the pain and suffering that Souliotes has gone through over the years, but District Attorney Birgit Fladager has stated that her office will make no such move – especially since, despite the overwhelming evidence, she still holds on to the belief that the man is guilty.

Paramedics Contaminated Crime Scene in Monte Sereno Millionaire Slaying

Until recently, there was really only one suspect in the November murder of Ravi Kumra, former owner in a Saratoga vineyard and entrepreneur – Lukis Anderson (26) of San Jose, whose DNA was found in the slain millionaire’s home. For months, local law enforcement officials, prosecutors, and defense attorneys alike have tried to figure out how Anderson could have been in two places at once – both black out drunk in a hospital and in the midst of murdering Kumra, whose home was far away.  New evidence suggests, however, that there is no mystery at all.  In point of fact, the paramedics that responded to the grisly scene at Kumra’s Withey Road mansion were the same that brought Anderson to the hospital 2 hours before for high-level intoxication (5 times the legal limit) from a local liquor store.  The two employees of a local ambulance company (Santa Clara County Ambulance) now stand accused of not having followed proper procedure when it comes to cleaning themselves between calls.

Though Anderson has now been released, he spent a lengthy 5 months in jail for the murder of Kumra, even though Anderson had never met the victim or anyone else who was present at the mansion at the time of the murder.  There was nothing to tie him to the crime except the DNA evidence found on Kumra’s body.  It was impossible for Anderson to have committed the crime, seeing as he was in the hospital for more than 12 hours after the attack.

Dying Declaration Exception Used in Suisun City Stabbing Case (CA Evidence Code §1240 – §1242)

The victim in a stabbing on Worley Road in Suisun City managed to give local law enforcement officials the name of her attacker before expiring.  After an argument on the 1300 block of Worley Road, the unnamed target was stabbed repeatedly.  Police have yet to release the name of the suspect, but are on his or her trail.

This brings up an interesting legal question, namely whether or not utterances that would normally be considered inadmissible in court because they are considered hearsay could be admitted because they are “dying declarations.”

According to California Evidence Code, hearsay (statements uttered by persons who may not be reliable witnesses or that cannot be appropriately substantiated) is not admissible as evidence in a court of law.  However, there are several exceptions to this rule (Chapter 2, CA Evidence Code). Outright confessions are one example of this, but so are dying declarations (CA Evidence Code §1240-§1242). A dying declaration is exactly what one may think – a statement made by a victim as they are taking often their last breaths.  This is not considered hearsay because the victim has direct knowledge of the crime.  A dying victim has every right to alert law enforcement officials to the identity of their assailant and to the circumstances of their demise.  Other exceptions to the hearsay rule concerning evidence are: official records, former testimony, scientific publications, and statements made against abusers by children under 12 years of age.

Richmond High School Gang Rape Draws Attention (CA Penal Code §261)

It sounds like the beginning of a 1970s horror flick based on a Stephen King novel. A 16-year-old girl leaves the safety of the crowd at an innocent Homecoming dance and ends up incoherently drunk and crumpled under a picnic table, dress askew and a trail of grisly pieces of evidence – a high-heeled shoe, a used condom, and a pair of underwear ripped to shreds.  What happened to the unnamed victim may never be known.  She was approached by a classmate after the dance who asked her if she wanted to “party” with some of his friends. What she didn’t bet on was that over 20 different men would participate in her gang rape – some of them molesting her with foreign objects and sexually assaulting her and others simply standing by for possibly two hours while others attacked her.

There have been at least 7 men charged with the offense (CA Penal Code §261) and at least two of them could end up spending the rest of their lives in jail.  Yet, the defense attorneys in the case insist that there is little real evidence to connect the boys to the events of that night.  First, the evidence found on the scene is arguably undependable due to its being compromised by the arrival of a police helicopter on the scene during the initial investigation. Couple this with the fact that the DNA taken from the condom is merely ‘trace’ evidence and this case may not be as open and shut as it seems at first glance.

In fact, there are only two truly good reasons for prosecutors in the case to remain confident – Ari Morales and Manuel Ortega, two men who agreed to plea bargains in exchange for 27 years in prison for the former and 32 for the latter.  Attorneys for the girl plan to put her on the stand during trial, but she may not be of any use as she was completely drunk on brandy the night of the attack and does not remember anything.

Rio Linda Woman Sentence to 192 years for Child Molestation (CA Penal Code §288)

40-year-old Rosemary Eusted was sentenced to 72 years + 120 years to life for the ongoing molestation of at least four children over a period of several years.  Two were girls that spent time in her home and were 6 and 7 years old when the molestation occurred in 1997.  Then, in 2005, Eusted molested two additional victims (5-10 years old) in Placer County.  It is only in recent years that Eusted’s victims have felt comfortable enough to come forth, fearing her violent nature and threats.  In the case before the Sacramento Superior Court, all victims testified and Eusted was convicted of 17 counts of lewd and lascivious acts with force against a child under 14 years of age.

California law (CA Penal Code §288) dictates that, when sexual acts are performed with a child, this is a particularly heinous offense.  To begin with, the simple fact that the child is under 14 years of age comes with an 8-year term in state prison.  Additionally, however, if any type of force or violence was used, then the sentence can go up to 10 years in state prison. In Eusted’s case, force was used and there was a pattern of continual abuse spanning over a period of 3 months, which affects sentencing even further – a person can receive up to 16 years for each count of molestation.

While child molestation is a very serious crime and should not be taken lightly, there are many persons who are falsely accused of this particular offense each year.  Although Eusted is most likely guilty of these terrible acts, we must also remember that the National Innocence Project has assisted in the exoneration of thousands of such persons through the use of DNA evidence.

VIOLATIONS OF CALIFORNIA LAW PREVENTS NEW EXECUTION RULES

Officials in the California system who have authored a bid for new rules on execution, including using a different method than most states in the U.S., have evidently not bothered to “do their homework” when it comes to state laws on the subject.  The need for a change in the system and methods of execution is simply unnecessary and, for many citizens, unreasonable.  There is, to be sure, a long and hotly debated history of capital punishment in the state of California.

Before the 1972 case, People v. Anderson, there were 709 executions carried out in California, beginning in 1778 when San Diego County officials shot several Native Americans charged with conspiracy to commit murder.  People v. Anderson caused the death penalty to be revoked in the state, until it was reinstated in 1978.  Yet, since 2006, there has been a moratorium on executions in California due to a decision made by U.S. District Judge Jeremy Fogel, who found so many problems with the state’s methods when executing prisoners that he stopped the process entirely.

Now, California prison officials are attempting to return to the era of capital punishment – with one serious problem that the First District Court of Appeal in San Francisco cannot allow.  What is that issue?  They have completely altered and re-written the state’s execution rules to include, not one injection of lethal substances, but three: an anesthetic, a paralytic, and potassium chloride (which causes an electrolyte imbalance and thus causes the heart to stop). Most states use a large dose of one medication – a strong barbiturate that prevents pain and prevents the possibility of a prisoner becoming conscious during the process.

Whatever your thoughts may be on capital punishment in general, it is certain that most Californians would agree with the new ruling that prevents “cruel and unusual punishment” as suggested by the recent changes submitted to the court by the state Department of Corrections and Rehabilitation.  It makes sense for the First District Court of Appeal to reject these changes because they are, in fact, unreasonable and simply unlawful.  The authors should have done a little more research before submitting this re-written document – and it is frightening that the very Department of Corrections and Rehabilitation representatives are so unaware of the laws in the state to which they are duty-bound.

Valley Springs: 12-year-old Arrest in Leila Fowler Murder (CA Penal Code §187(a))

When Leila Fowler (8) was found stabbed to death in the kitchen of her family’s ranch style home, it was her brother (12) who seemed most upset.  Now, the young boy has been arrested in connection with the case pursuant to CA Penal Code §187(a), even though there seems to be little evidence to support this.  By all accounts, including the testimony of the children’s mother, the Calaveras County Sherriff’s Department is grasping at straws.  The boy’s original testimony was that a strange man with silver hair had broken into the home, killed Fowler, and run – that his sister was the victim of an attempted burglary turned home invasion.

Because of the violent and intimate nature of the crime, this 12-year-old will soon find his fate in the hands of a juvenile court judge – and perhaps in the hands of psychiatrists and psychologists assigned to the task of determining his mental health. In the state of California, a juvenile can be charged as an adult when it is deemed appropriate, but the offender has to be aged 14 years or older.  This is because the goal of the California juvenile justice system is not punishment; it’s rehabilitation. Yet, there are some cases in which much younger children, like this boy, may be deemed “too bad” to be considered redeemable – and the decision as to whether this boy will face life in prison or 25 years in jail will be up to the judge in the case.

A crime like this is heartbreaking; it’s as simple as that.  However, when we turn the harsh and unyielding eye of justice on to a young child, the situation becomes even less palatable.  The question on everyone’s mind is whether or not this boy was capable of changing so swiftly from a loving brother who never fought with his sister to a cold-blooded murderer.  The odds are that this is an unlikely scenario and that the Calaveras County Sherriff’s Department will end up with egg on their faces soon enough.

Defense Attorneys Now Better Positioned to Assist Clients

The state of California has learned a bit of a lesson from history.  Recently, a Second District Court of Appeals decision has strengthened the defense attorney-client relationship by making it almost as airtight as a therapist’s relationship with their patient.  It could be argued that this debate has been ongoing – at least since the 1974 and 1976 Tarasoff v. Regents of the University of California I & II

In what came to be known as the “Tarasoff Case,” a fellow student from India – Prosenjit Poddar, murdered a young woman by the name of Tatiana Tarasoff.  Although Tarasoff had shared but a few exchanges with Poddar, he became unreasonably attached to her, so much so that he sought psychiatric help at his roommate’s urging.  The psychologist, Dr. Lawrence Moore, who saw Poddar on several occasions, attempted several times to have him committed after Poddar made threats against Tarasoff. However, the university police force at the time decided for themselves that Poddar was harmless and let him go. Poddar killed Tarasoff in her home less than a year later.

The Tarasoff decision brought to light the very difficult position that mental health professionals are in when clients make threats against a third party.  Yet, this may be an arguable point in the psychiatric world – it is not the same for defense attorneys.  Part of a successful defense attorney’s job is to ensure that their client receives a fair trial.  Now that the Second District Court of Appeals has determined that this right overrides the duty to report other crimes – like child abuse, for one – a balance of confidentiality and fairness seems to have been reestablished.

Though no one would argue that what happened to Tatiana Tarasoff was pleasant, Dr. Lawrence Moore neither needed nor desired to breach confidentiality with Poddar in order to prevent this horrible crime.  Many agree that it was the failure of the campus police to act on Dr. Moore’s instructions that allowed Tarasoff’s death to occur.  Now, in light of this new decision, a therapist may go directly to an individual’s defense attorney with any such suspicions and the decision as to whether to act to prevent these will be left in the capable hands of legal professionals.