Recent Blog Posts

Judge Dismisses Charges in San Bernardino Corruption Case

Paul Grech — Fri, 19 Aug 2011 23:45:00 GMT

In the largest corruption case in San Bernardino's history, Grech & Firetag successfully demurred to several counts and allegations in a major blow to the Prosecution's case. The Court agreed with the defense that several allegations were without merit and ordered those charges dismissed. A full account of today hearing can be found here.

Dozens of Charges Dropped!

Paul Grech — Thu, 19 May 2011 23:35:00 GMT

Grech & Firetag scored a major victory in a political corruption case in San Jacinto following the dismissal of dozens of charges! The District Attorney's office had alleged over a hundred counts of election fraud, perjury and government code violations against nine different defendants. Realizing that the case was grossly overfiled, the Court agreed with the defense and ordered that over 40 charges be dismissed against our client. Information related to this hearing can be found here.

Bill To Make Battery on a Cop a "Strike" Defeated in Committee

Chad Firetag — Wed, 13 Apr 2011 17:56:00 GMT

Yesterday, a California Legislative committee voted down a proposal to make battery on a cop a "strike" offense in California. The bill was supported by Officer Ryan Bonaminio's father, the officer who was murdered several months ago. Ellis Green, the man authorities have charged the murder, had previously been convicted of battery on an officer in the past. Green is facing the death penalty.

Not all felonies are "strikes." Only those felonies listed in Penal Code section 1192.7, subd. (c) qualify as a strike offense. Penal Code section 69, battery on a police officer, is not one of those listed felonies. However, based on the severity of the assault, an offense could still be charged as a felony strike. For instance, if the suspect used a weapon or caused great bodily injury in the assault, then the perpetrator could be charged with mulitple felonies, some of which would be considered "strikes."

Nevertheless, the bill did not have enough votes to pass. The panel's chairman, Assemblyman Tom Ammiano, D-San Francisco, sympathized with Bonaminio, but said he had "very serious concerns" about the measure's implications, particularly its impact on the state's crowded prisons.

An article related to this story can be found here.

US Supreme Court redefines testimonial evidence under the Sixth Amendment

Chad Firetag — Thu, 07 Apr 2011 23:52:00 GMT

The Supreme Court recently published a confusing case that may affect how courts view the Confrontation Clause. Following the seminal cases of Crawford v. Washington and Davis v. Washington, the United States Supreme Court held that with few exceptions, a prior testimonial statement could only be admissible if the witness was unavailable and a defendant had a prior opportunity to cross-examine the witness.

In Davis, the Court defined "testimonial" to exclude a telephone call to 911 regarding an "ongoing emergency", thus permitting the transcripts of such calls to be used against a criminal defendant.

However, in Michigan v. Bryant (2011) 131 S. Ct. 1143, the Supreme Court seems to have taken a backward step from its prior decisions. In that case, the victim did not call 911, but identified Bryant as his shooter after he was shot and while police were looking for the perpetrator. The issue before the Court in Bryant is whether the police's questioning occurred in the context of an ongoing emergency. The Court ruled that it was and based its decision, in part, on the subjective intent of the officers who took the information.

In a blistering dissent by Justice Scalia, he called the Court's reasoning an obfuscation of Crawford's logical approach. Nevertheless, criminal defense attorneys must be aware that in violent altercations, like the one posed in Bryant, prosecutors will attempt to skirt the confrontation clause requirements by arguing the "on-going" emergency exception.

It remains to be seen how the California courts will interpret Bryant and whether they will expand the "on-going" emergency exception. However, criminal practitioners must be aware of this problem if faced with a confrontation question.

Tougher Sex Offender Laws in Orange County

Chad Firetag — Wed, 06 Apr 2011 17:58:00 GMT

Orange County has recently approved a law that will restrict the movement of registered sex offenders, effectively barring them from entering beaches, parks and harbor areas. Under the new law, any sex offender who visits any of dozens of public spaces without prior approval from a county official may face up to six months in jail and/or a $500.00 fines.

The law, which was approved unanimously by the Board of Supervisors on Tuesday, was spearheaded by OC District Attorney Tony Rackauckas, who insisted the law was to keep sex offenders away from children. Critics of the law quickly pointed out that most sex offenses do not occur by strangers but rather by family members, thus diminishing the argument of protection. Further, those same critics suggest that the law may be practically unenforceable since it will be difficult to track those persons who are sex offenders. For instance, persons on parole who have suffered a sex offense in the past may be subject to GPS monitoring, but their movements are already tracked. Others who are not on parole or supervision but who still have to register would be undetected.

The law could also be challenged on several constitutional challenges. Following the election where voters overwhelmingly approved tougher restrictions on where registered offenders could live, i.e., prohibiting persons from residing within 2000 feet of a school, California has had to defend a number of lawsuits that seek to defeat the law. Similar challenges could be made in Orange County.

It remains to be seen whether this law will pass constitutional muster or could be enforced in a practical manner. A report of the new law can be found here.

New Legislation May Bring New Court of Appeal

Chad Firetag — Wed, 06 Apr 2011 17:58:00 GMT

A new bill in the California Legislature is making its way through various political channels that would create a new District Court of Appeal. If this bill passed, it would replace the current 4th District, Division Two Court of Appeal with the 7th District Court of Appeal.

Currently, the Fourth District Court of Appeal, Division Two, serves Riverside, San Bernardino, and Inyo counties; combined the area covers 37,000 square miles, and is home to more than 4 million people. The area is so large that for every justice in Division Two, there are 609,125 people in the jurisdiction.

By contrast, in the Fourth District Court of Appeal, Division One, in San Diego, there are only 342,328 people per justice, and in Division Three, in Santa Ana, there are only 397,771 people per justice. The disparity is huge. Conversion of the Fourth Appellate District, Division Two, into its own free-standing District Seven will concentrate administrative and budget responsibilities in the Inland Empire where they belong, and will remove an unnecessary layer of bureaucracy standing between Division Two and the people of the Inland Empire.

The bill is currently in committee in Sacramento.

Serial Murderer Gets Two More Life Sentences

Chad Firetag — Tue, 05 Apr 2011 18:26:00 GMT

After pleading guilty to the murder of Anthony Martinez, a judge today sentenced serial murderer Joseph Edward Duncan III to his tenth life sentence. Duncan has already been sentenced to die to three sentences stemming from murders committed in the state of Idaho by a federal court. Typically, the federal death system is quicker than California, which currently houses the largest number of death row inmates in the country.

Riverside County prosecutors filed murder charges in 2007 and extradited Duncan to face the death penalty. Newly-elected District Attorney Paul Zellerbach accepted a settlement from Duncan's attorneys to agree to the life sentence. Although DA Zellerbach said that it was a very difficult decision to agree to a life sentence, he agreed to that punishment only after the family indicated that they would agree to the settlement.

A news report can be found here.

Civility in the Courtroom

Chad Firetag — Tue, 05 Apr 2011 18:12:00 GMT

This article by the Press-Enterprise gives an interesting perspective about how lawyers and attorneys can best serve their clients by using a more civil approach. Contrary to popular belief, the best attorneys are not always the loudest. Oftentimes, I have seen where bluster actually hurts the client. A recent example is illustrative: once I was in court waiting to speak to the District Attorney and another lawyer was in front of me. Although I did not hear the beginning of their conversation, at some point I heard the defense lawyer start to yell at the District Attorney, which only made the District Attorney get angry although she didn't lose her temper. Eventually, the defense lawyer got up, yelled some more and then stormed away.

I was next in-line. My thought was to diffuse the situation and be overly civil to the District Attorney given what she had just experienced. After she collected her thoughts, she and I began to speak and after a few moments, she agreed with what I wanted and reduced the charges. In that instance, it was my client who prevailed while the other client suffered.

The point is that the attorney's only responsibility is that the client's case resolve in a favorable manner and not to be the loudest in the room.

Pacheco Must Go

Paul Grech — Mon, 31 May 2010 18:25:00 GMT

This was the article that I wrote condemning the Pacheco administration and why a change was needed. This was one of my proudest moments as a criminal defense attorney.

By PAUL GRECH JR. and STEVEN L. HARMON

We can no longer endorse Rod Pacheco for district attorney. During three and a half years as district attorney he has demonstrated that he is unfit to lead the chief law enforcement agency of our county.

We have seen a series of poor decisions that wasted taxpayer money, clogged the courts and deteriorated the quality of justice for all citizens of Riverside County. We have seen the Riverside County court system overwhelmed by an increase in needless and often frivolous criminal case filings and trials.

In order to accommodate the district attorney's new policies, the Riverside County Superior Court suspended all trials of civil lawsuits. Victims of auto accidents, professional negligence and purchasers of homes and buildings with major construction defects could no longer have their cases heard; employers and employees with disputes were denied a forum to try their cases. Businesses needing timely decisions from our judges to adjust to changing market conditions, or exploring relocation to Riverside, soon discovered that clogged local courts meant Riverside was simply "bad for business."

Foolish demands

After shutting down the civil courts, Pacheco pressed the courts further, demanding that juvenile dependency, family law and probate courts immediately turn themselves over to criminal cases. His vision of Riverside would have left us with no forum for removing children from abusive homes and placing them in foster care. No courtrooms in which divorce and child custody cases could be decided. No courtrooms in which a deceased person may leave a legacy to heirs. Riverside County's judges refused Pacheco's demand. He took the matter to the Court of Appeal and lost.

We have seen nearly 330 criminal cases dismissed due to court congestion. We have seen more than 750 jury trials end without a conviction on any charge. We have seen more than 800 additional jury trials end with a jury acquittal on at least one charge. This failure rate is unprecedented for Riverside County. Jurors have sacrificed thousands and thousands of days away from their jobs to hear cases that should never have gone to trial.

We have seen a series of poor decisions that clogged the courts and eroded the quality of justice for all citizens of Riverside County.

Misused resources

By the end of 2007, the crisis in Riverside had reached the attention of the chief justice of the California Supreme Court. A strike force of the best judges in California was dispatched to help our county. These judges presided over trial after trial in which Riverside County citizens rejected the DA's case and sent defendants home after they sat in jail for years awaiting their day in court.

During 2007 and 2008, convicted criminals were given early releases from Riverside County jail in record numbers because space was taken up by a backlog of defendants awaiting trial. It is simply unacceptable that as district attorney, Pacheco accepts no responsibility for this mess. It is a failure of leadership.

DA Rod Pacheco won't adjust his destructive policies.

Citizens vote at the ballot box and in the jury box. The votes from the jury box over three and a half years reflect a powerful rejection of Pacheco's filing policies and misuse of taxpayer resources. Statistics compiled by the courts and available for public review demonstrate that in record numbers jurors are rejecting charges filed by the district attorney.

Pacheco's response has been to criticize jurors, judges and everyone with whom he disagrees.

Judge Paul Zellerbach offers hope for positive change.

At one point, he even criticized criminal defendants and their lawyers for demanding trials in which they would later be found not guilty.

For months, the district attorney has maintained that none of this is his problem. He refuses to cooperate with the court in the orderly prioritization of criminal cases. His refusal to meaningfully assist the court is a complete abdication of his professional, ethical and legal responsibility to keep our community safe.

Another consequence of Pacheco's poor leadership is poor office morale. Within a few months of Pacheco taking office, dozens of the office's most experienced lawyers began leaving, and more than 90 veteran prosecutors -- over one-third of the office -- have now departed. The flight of talented prosecutors during Pacheco's term is directly related to his management style.

The grand jury noted that the district attorney's office is marked by a pervasive culture of fear and intimidation based on the perception that Pacheco punishes lawyers with whom he disagrees. It's time to put an end to this mismanagement.

We have also seen Judge Paul Zellerbach serve Riverside County for more than 32 years: 22 years in the Riverside County District Attorney's Office, and 10 years as a tough and fair judge. Paul Zellerbach offers hope for positive change in conviction rates, the responsible setting of priorities and the overall promotion of public safety, while saving taxpayer dollars.

Too much damage

By now, most everyone is familiar with Pacheco's comment that "any prosecutor can convict the guilty, but it takes a great prosecutor to convict the innocent." Even if uttered in jest, this statement is patently offensive to our values and reflects again his unsuitability for office.

Pacheco's consistent failure to accept responsibility for the damage done to his office and our community is no longer acceptable. It is for these reasons that we have withdrawn our support for Rod Pacheco and now strongly endorse Paul Zellerbach for district attorney.