San Jose Criminal Defense Lawyer Blog

This story is a true lesson of the quandary you can find yourself in by representing yourself. More than two decades ago, Ines Sailer, a 23-year old German immigrant was found dead in a carport in East San Jose, a victim of multiple gunshot wounds. She was living in San Francisco before her untimely death.

However, no suspect was found and any leads led investigators into dead-ends. The case went cold. Nevertheless that cold case took on new life when in 2005, San Jose created its cold case department. CCD is a unit of investigators tasked with reopening cases long ago thought unsolvable. With the advent of DNA evidence such cases could now be re-investigated.

Melvin Forte, a 60 year-old former resident of San Francisco, now serving a life-term for a murder in San Francisco some years back. Investigators, having reopened Sailer's cold case, matched Forte's DNA.

However, the case was not necessarily a slam dunk. There are many issues that competent lawyers and experts use to show that a DNA sample may not be all so accurate. A "match" may mean the source is the criminal defendant. It may also mean that the defendant's DNA profile coincidentally matches the crime scene DNA or that there was an error in collection, interpretation, or contamination.
There are significant scientific issues that surround the introduction of DNA evidence such as errors in collection, inadvertent transfer of DNA, biased interpretation and misleading statistics. Of course, as with most attorneys I digress.

The San Jose District Attorney's Office is prosecuting Forte for the rape and murder of Ines Sailer. Forte refused counsel and is representing himself. His main argument, which appeared to gain steam, was the DA's failure to connect him to the City of San Jose.

Unfortunately for Mr. Forte, untrained in the art of cross examination, a relatively minor witness made a stunning revelation upon Forte's prompting. She positively identified Forte declaring that she saw him at the San Jose apartment complex where Sailor's body was found. Before Forte's questioning, the witness, a former housekeeper who worked at the apartment complex, was vague as to what she remembered. Then, to a stunned jury she blurted out "I remember seeing you!" and "Frequently, in the afternoon, sometimes midday, sometimes early evening." She even said that Forte once told her that he lived in the apartment community.

Prosecutors are seeking the death penalty.

Continue reading "Stunning Revelation in San Jose Murder Trial" »

As reported by this blog, an officer of the San Jose Police faked an arrest to scare a teenage boy. On August 30, 2010, an unnamed officer discovered that his stepdaughter had engaged in intercourse with her 15 year old boyfriend. The girl was 14 years old at the time. The officer appeared at the boy's home and handcuffed him in front of his parents. The boy was told he was being arrested for having sex with a minor and that the District Attorney's Office would likely file charges.

The cop was put on administrative leave pending an investigation of matter, which was handed to the DA for further review. In a statement the Santa Clara County District Attorney's Office said that the officer had the authority to detain the boy, who was suspected of having committed a crime.

The officer's attorney told reporters that the decision not to file charges was appropriate because: "It is not a crime to act as a concerned father, nor is it a crime to 'scare straight' a juvenile who is heading down the wrong path." She concluded that the boy's parents colluded with the officer to scare their son.

However, there is scant evidence that the officer ever contacted the boy's parents, who have never made that assertion. Further, the parents secretly recorded the incident with a cell phone, which seems to negate the officer's assertion that there was an agreement between him and the parents. Lastly, a "concerned father" would not have the right to handcuff someone just to scare him straight, police officer or not.

If this officer had no intention of arresting the teenage boy his detention and handcuffing was an illegal act. Police officers are not immune from the law. This officer should have come to the home, not in uniform, and talked to the boy's parents. The two families should have settled the matter together. It is the opinion of this blog that the unnamed officer should be prosecuted.

To read this blog's original posting on this incident click here.

Continue reading "San Jose Cop Not to Be Prosecuted for Fake Arrest" »

On the day of its grand opening, the South San Jose Police Substation closed shop for a year or more. Just as the city, city officials and construction workers celebrated the completion of the $92 million facility, the lights were shut and gas turned off. The vacant building is located on Great Oaks Blvd, just off of highway 85.

The City reports that the immediate closure is due to fiscal shortfalls and that a delay of a year will save money and jobs.

"It's a reflection of just how difficult the budget challenges are," says city spokesman Tom Manheim, who nevertheless notes that the substation is expected to have a life of 50 years. He didn't say if that was 50 years of an open building or one in mothballs.

Construction of the substation began in 2007 after voters approved a bond measure in 2002. The structure came in more than $9 million over-budget. The City blames the additional costs on the original design of the facility and orders for additional mechanical and plumbing requirements.

The building is more than 2,000 square feet larger than the San Jose facility and boasts an elegant board room for police officers and detectives, conference rooms, a day care and even a gym. I dare say that the San Jose facility is more the substation than this building. There are, at last count, 25 plasma televisions throughout the structure.

What, no donut shop?

Continue reading "San Jose Police Substation Opens and Closes on Same Day" »

Officer Clay Rojas, of the Santa Clara Police Department was arrested Thursday for felony conspiracy and is held on $250,000 bail. It is alleged that Rojas (a former San Jose police officer) handed over confidential and personal information to a member of California Chapter of the Hell's Angels.
The District Attorney's Office had not revealed much, but has indicated that Rojas supplied DMV records of "private persons" using police resources. The manner in which he obtained the records could not be done at the civilian level.

It is unclear why Rojas, a 35-year veteran of the police, gave the documents to the Hells Angels and whether he is a member himself. Also to be arraigned are William Bettencourt and Vivian Rodriguez. It is alleged that Rojas gave the confidential information to Bettencourt (a member of the Hell's Angels) who then passed it on to Rodriguez. Bettencourt is being held without bail because of an extensive criminal record.

Rojas had been previously investigated in 2000 where it was alleged that he and several other officers of the San Jose Police Department wrongfully shot and killed Shaheed Jamal Daniels, after a domestic violence call. Rojas was later cleared.

In this matter Rojas faces a maximum prison term of three years. Bettencourt, because of his criminal history is looking at 25 to life.

Chief of Santa Clara Police, Steve Lodge, said that Rojas made "some incredibly bad decisions," in supplying confidential information to the Angels.

No, he made some incredibly bad criminal acts. It is most egregious because he is a law enforcement officer who has the public's trust. No special treatment should be given to this officer of the law.

Below is a History Channel Presentation of "Gang Land: The Hell's Angels." The video contains graphic images; viewer discretion is advised.

Continue reading "Santa Clara Cop to Face Prison" »

A 1977 rape and murder of a Santa Clara teenage girl went unsolved for 32-years until DNA evidence linked the man to the crime. Richard Archibeque, originally from Santa Clara, was convicted for the rape and murder of his fellow high school student Mary Quigley decades after the crime was committed.

Police reopened the case and using DNA testing matched Archibeque (who was convicted in 2006 for unrelated rape). Archibeque has been sentenced to a life term after the jury found him guilty of raping and strangling Quigley to death. She was found hanging from a cyclone fence in the War Memorial Park in Santa Clara. She was last seen at a friend's birthday party hours before.

Archibeque has appealed to the Sixth District, claiming the prosecution provided insufficient evidence for a reasonable jury to convict. The court has rejected his argument, saying that the prosecution's case-in-chief was "more than adequate." It is unclear whether Archibeque, through his attorneys will appeal to the California Supreme Court.

Since the 1977 murder and before his 2006 conviction, Archibeque married and had a daughter. He worked as a handyman until his 2006 arrest and conviction for the rape of a 16-year old girl. He spent three years in prison on that case until law enforcement matched his DNA in the 1977 murder.

Continue reading "Sixth District Upholds Murder Conviction for San Jose Man" »

Governor Schwarzenegger signed into law a new measure that gives Superior Court Judges the discretion to take away a defendant's driver's license for ten years upon a third DUI conviction. Jerry Hill of San Mateo sponsored the measure, which takes effect January 1, 2011. Under this new law, a third conviction for a DUI within a ten-year period can be punished with a revocation of the defendant's license for an entire decade.

In a press conference, Hill noted that 12,364 DUI convictions are for a third or fourth violations out of a total of 188,000 convictions in 2008. The idea behind the law is to take 10,000 drivers off the road who prove themselves habitual offenders. He further reported that 310,000 Californians have three or more convictions for driving under the influence.

Of course what is unsaid are the unintended consequences. This kind of law will create a new under-class of people; and a class of people perpetually at risk for violating the law. Mobility is essential in today's world. It is more than just a hardship to deny a person's mobility for an entire decade and not to expect that person to drive unlicensed. This law will create a new group of citizens consistently at-risk.

Judges will have wide discretion when sentencing defendant's convicted of driving under the influence. It is hoped they use this discretion well.

Continue reading "San Jose Drivers to Face Stiffer DUI Penalties" »

Three police departments, roadblocks, patrol vehicles, foot-officers and a Sheriff's helicopter all failed to capture a fleeing suspect yesterday. And what is the man accused of doing? Stealing a cell-phone from a pedestrian.

At around 6:00 p.m. at the 400 block of East Meadow Drive in Palo Alto a man riding a bicycle between the ages of 16 and 25 asked to borrow a pedestrian's cell-phone. The good samaritan handed his black Droid Smart phone to the unassuming bicyclist, who, as one would guess, rode off with it.

In response to this, officers from the Palo Alto, Mountain View and Los Altos Police
Departments set out a massive manhunt for the phone thief, setting up a vast perimeter. Squad cars and foot-police from all agencies were sent out in search of the cell phone stealing bicyclist, who eluded capture. Even a Sheriff's search from the sky failed to locate the suspect.

When asked, Agent Max Nielepko of Palo Alto, told reporters that the helicopter might have been a little over the top.

You think?

The First District Court of Appeals in San Francisco overruled Governor Arnold Schwarzenegger who denied parole of a man convicted of killing his 20-month baby over twenty years ago. Kuldip Kler, convicted of second degree murder on February 25, 1987, will be eligible for parole because of a clean in-custody record, acts of remorse and acknowledgement of the crime.

Further, in its ruling, the court indicated that the Governor was wrong for basing his denial on the facts of the crime itself and not for the conduct of Kler in the 20 subsequent years.

""The factors relied upon ... are not supported by the record, nor do they lead to the conclusion that (Kler) would be an unreasonable risk of violence if released on parole," the court's opinion states.

Kler was up for parole in 2007, but his release was denied by the Parole Board. However, the Board reversed itself and granted the parole after an appeal. This was followed by Schwarzenegger's denial of Kler's freedom some months later.
The District Court gave several reasons for reversing the Governor:

1. Kler's exemplary behavior while in custody, attendance at counseling meetings and self-help sessions.
2. Kler's acknowledgement of the crime and his guilt. During the trial Kler testified that he was in an epileptic fit when the baby died.
3. Expression of grief and remorse for the child and his behavior.
4. Because of his record while incarcerated and his behavior and conduct, he no longer poses a threat to the community

Governor Schwarzenegger may appeal to the California Supreme Court. The Governor's Office declined to comment.

The Santa Clara County Special Enforcement Team has intensified its war on cannabis and other illicit drug activity. Twenty-two people were arrested this week relating to a marijuana sales ring here in the South Bay. According to police and the Attorney General's Office, members of the ring sold and delivered their goods to a wide-spectrum of people. It is illegal in California to deliver marijuana unless you are a primary care-giver. Local law enforcement also discovered 25 pounds of marijuana, 9 firearms and 223 cannabis plant (not quite within the limits of "compassionate use." Details of the bust, dubbed the "Up in Smoke Sting," were not given to reporters.

The sting might have cannabis dispensaries on edge because many of them also act as a delivery service. For such dispensaries to legally deliver they must have a "pre-existing" relationship with the patient, someone who has a recommendation from a physician to use marijuana for a medical condition. Most medical marijuana users register with specific dispensaries.

Santa Clara Police Chief Stephen Lodge told reporters: "I believe this is just the tip of the iceberg of people who are hiding behind the voter approved concept of medicinal marijuana to sell illegal drugs on an unprecedented scale." However, this one sting operation does not prove that there is a large cannabis conspiracy in the San Jose area.

Continue reading "Santa Clara County Steps-Up Drug Raids" »