San Francisco & Bay Area Criminal Defense Lawyers

Smith v. Lockyer , 9th Circuit, Case #: 07-16876, Opinion dated 9/9/09: Case Holding: A supplemental instruction to the deadlocked jury, addressing concerns of a hold-out juror (concerns which are known to the judge) is considered a denial of defendant's Sixth Amendment right. Facts: Smith and co-defendant were charged with burglary, robbery, and forced oral copulation. At trial, the prosecution introduced DNA evidence linking Smith to the oral copulation charge. After deliberating, the jury told the judge two times that it was deadlocked on this charge and the judge gave an “ Allen ” instruction, directing the jury to return to its deliberations. On the fifth day, one of the jurors wrote the judge a specific note in which the juror expressed his concerns with the DNA evidence and explained that in light of his concern, he could not vote for conviction. Over the strenuous objection of the defense, the judge then instructed the jury to consider other specific evidence that it bel...

An En Banc Decision by Chief Judge Kozinski on August 31, 2009 will prove to be an influential decision on Fourth Amendment searches of computers. United States v. Comprehensive Drug Testing , 2009 WL 2605378 (9th Cir. Aug. 26, 2009). “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1. CDT sets forth new search and seizure rules for the Information Age. Because the seizure of electronic records is becoming more common than paper records, in the opinion, the Ninth Circuit advises that this calls for “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id. at *15. Background While more detailed facts can be found at United States v. Comprehensive Drug Testing , 513 F.3d 1085, 1089...

With Judge Sotomayor’s confirmation hearings set to begin on July 13, there have been many speculations as to which way the Supreme Court nominee will lean on criminal justice issues. A brief look at her experience as a former prosecutor and at some of her decisions on the bench may help to gain some insight into what type of justice may soon be taking the bench on the highest judicial body in the United States. With respect to criminal cases, statistically, more often than not, Judge Sotomayor has sided with the government. As of 2002, of the 90 criminal law-related cases considered by the appellate panel on which Sotomayor served, she sided with the government 65 times and with the defendants or prisoners 25 times. Whatever side she has ruled for, Sotomayor has nearly always been in the majority and has dissented on a defendant’s behalf only once. Looking more closely at her record, Judge Sotomayor has some notable criminal justice rulings on the subjects of federal sentencing and th...

The current recession appears to be having an effect on different aspects of crime rates, crime data, and the criminal justice system. Research suggests that rising unemployment and widespread law-enforcement budget cuts in equipment and staffing has resulted in an increase in crime. Additionally, the recession may arguably have an even more radical effect and result in the abolishment of capital punishment in certain cash-strapped states, with debates heating up over whether states should continue to seek the pricey sentence. The alleged link between the recession and an increase in crime is seemingly crime-specific. White-collar crime, including embezzlement and fraud, has reportedly been the area that has seen the biggest increase. Specifically, as reported by the National Internet Crime Complaint Center (NICCC), cyber fraud is at a record high. Online scams originating worldwide have seen a fifty percent increase in reported complaints in the month of Marc...

Some major cities across the U.S. are eliminating questions regarding criminal history from their job applications in order to prevent convicts from being shut out of the workforce. This policy has been termed “banning the box,” in reference to the box that applicants are forced to check when they initially apply for a position. Such changes in hiring procedures are aimed at helping ex-convicts to make a successful transition into society. Cities are coming to realize that one of the most significant barriers to successful reintegration is the inability of these individuals to gain employment. Disclosure of a past offense, regardless of its age or relevance to the position being sought, often functions to automatically shut out an individual from a job they are otherwise qualified for. These “ban the box” policies came about as a result of the national grassroots campaigning of an organization of formerly incarcerated people and their families called All of Us or None. These ...

On July 24, 2008, the California Supreme Court committed to a position it has resisted for nearly twenty years by holding that evidence supporting the need for a comparative jury analysis must be considered on appeal if relied upon by the defendant, even if the issue was not raised at the trial level. A comparative jury analysis examines the prosecutor’s questions to potential jurors to determine whether the prosecutor eliminated certain jurors based on racial motivations or because of a membership to a particular group. People v. Lenix, S148029, 2008 WL 2834291 (Cal. July 24, 2008) involved the prosecution of Arthur Lenix, an African-American man. During jury selection, the prosecution made five peremptory challenges, with the fifth challenge eliminating the last remaining black potential juror. Defense counsel challenged the decision, claiming that the strike was based on race. On appeal, the defense sought to compare the answers of potential white jurors who were sel...

On June 2, 2008 the United States Supreme Court severely limited the reach of the Money-Laundering Control Act (18 U.S.C. § 1956) in two separate decisions. In Cuellar v. United States (2008) 128 S.Ct. 1994, the Court unanimously held that in order to obtain a money-laundering conviction, the prosecution must prove that the defendant specifically intended his actions to conceal or disguise the attributes of the illegally obtained funds. This interpretation is a sharp deviation from the flexibility that has been attached to the statute since its creation in 1986. A person commits money laundering when he transports illegal funds, “knowing that the transaction is designed…to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” 18 U.S.C. § 1956. Courts have, however, traditionally interpreted the word “designed” liberally, allowing for convictions when merely the effect, not the intent, of the transpor...