San Jose Criminal Defense Lawyer Blog

San Jose Mayor Chuck Reed formed a commission to investigate police behavior after hundreds of citizen complaints regarding police conduct, particularly over the past two years. Many of these complaints report that police harass, harry and sometimes resort to violence over non-violent, petty crimes and infractions. The commission studied 180 different incidents over the past year and came to a conclusion: there are no "rogue" officers or any pattern of serious police abuse.

Not surprisingly, this report conflicts with the Mercury New investigation of over 321 cases where abuse was documented and often by the same officers. The Mercury reminds us of the case of Phuoung Ho, a college student, who was tasered while handcuffed. That infamous case was caught on a cell phone video, which can be seen on this blog.

I have been blogging about police for some time. We should remember the police officer who "faked" an arrest of a 15 year old boy, when the officer learned the boy had a sexual relationship with his step-daughter. What about the report from several Christian congregations that says 35 percent of its congregation have been stopped by police for no cause. And then the two separate fatal shootings of two Vietnamese men, who should have been detained, rather than killed.

In 2007 the San Jose Police release an inner-departmental memo that showed police used greater force on blacks and latinos. The department has ceased releasing such documents.

San Jose does have a problem with police abuse, whether it is using violence when not necessary, or arresting people on that catch-all charge, drunk in public. The police do protect us, but they cannot be allowed to violate constitutional rights and guarantees.

Under state law adults are prohibited from furnishing a minor with alcohol. The state is also prepared to pass a law holding parents responsible for underage drinking and driving. Santa Clara County has similar provisions. However, San Jose is next in line, as Councilwomen Nancy Pyle has proposed an ordinance that would hold parents liable for underage drinking that takes place in their home.

The law is in response to an accident that occurred on September 21, 2010, where the driver was 18-years old and intoxicated. His passenger, Roshan Rahbari, was killed and driver arrested. However, there was no allegation that the driver's parents furnished alcohol, or that the drinking took place in their home.

These laws are sometimes referred to as "social host" regulations. Morgan Hill, Saratoga and Monte Sereno all have similar provisions on the books. In these jurisdictions the ordinances hold parents responsible whether they knew about the drinking or not and punish them with fines. So, if Mom and Dad go on vacation and leave their 18 year old at home, they are responsible for any drinking that occurs in that house.

However well-intentioned these laws are, most surveys report no drop in the amount of alcohol teens consume both in and outside the home. Of course if the county and other cities are any gauge, San Jose will profit from a new source of revenue.

Recently, Santa Clara County Supervisors agreed to not participate with a federal program that requires local county jails to share the fingerprints of inmates who are in the country illegal to federal immigration officials and Immigration and Customs Enforcement or ICE.

The national Secure Communities Program, created about a year ago, is designed to collect fingerprint information to locate and ultimately deport those inmates who are in the country illegally. One report credits that the program is responsible for more than 47, 000 deportations.

Other Counties, such as San Mateo and San Francisco had objected to the program, but those protests have been toned down in recent months after the Department of Homeland security said that local jurisdictions can "opt out" of the program. Secretary Napolitano repeated this pledge in a letter to Congresswomen Zoe Lofgren.

However, last month ICE seems to have changed its attitude and indicated that it is willing to work and talk with local authorities, but the agreement to participate is between the Federal Government and the States, not with those local municipalities. It seems that the local authorities, who are to disseminate information regarding their inmates, have no say in the matter.

Today, if an inmate is here illegally, and serves actual time in a county jail, the government may place an immigration hold on him, which leads to eventual deportation. Under the federal program any illegal immigrant who merely books with the jail will face possible deportation. No longer will attorneys be able to prevent deportation by obtaining an alternative to jail, such as electronic monitoring, weekend work etc. Let's see how far Santa Clara will go with this.

Continue reading "Feds to Santa Clara County: Fork over the Fingerprints" »

Each attorney at trial is allowed a certain number of "peremptory challenges" to dismiss potential jurors from hearing the trial. Other dismissal can be for "cause" if each side believes the potential juror unfit from sitting in the jury box.

However, race, gender, national origin among others cannot be used as factors when dismissing a juror, whether it be a peremptory challenge or for cause. The court system will not allow trial attorneys to manipulate the legal system by excusing someone merely because he or she is the same race as the defendant or victim or when race plays some other role at trial.

In 2008, Santa Clara County prosecutor Alison Filo did just that, so says the 6th District Court of Appeal. In 2008 defendant Khoa Khac Long was being prosecuted for rape and theft of a prostitute. Deputy District Attorney Filo excused three Vietnamese jurors claiming it was based on factors other than race. In fact she gave Judge Gilbert T. Brown three different excuses for each juror:

1.The first juror did not speak English well enough to understand the details of the case. Never-mind that the court offers Vietnamese language interpreters for just these instances.

2.The juror's sister was prosecuted for fraud in the past, which would prejudice the juror's view of the legal system. Of course this is purely speculative at best

3.For the third juror, Filo said: "I don't feel comfortable with his body language." This juror even said things that were favorable to prosecution!

Judge Brown excepted these explanations and after a jury was selected and trial concluded, Khoa Khac Long was found guilty of the charges. She is currently serving a 14-year prison term, but now may get a new trial based on the appellate court's ruling.

Continue reading "San Jose Judge Allowed Race to Improperly Dismiss a Juror" »