Celebrating 10 years! 2007-2017

Requesting Input From Criminal Lawyers

Opinions/Ideas from those of you in the JDU Universe who rep cacrimdefense01/23/18
I don't understand what the app does, can't you save email c trollfeeder01/23/18
Just spitballing here - look into the case law on filing a m juniordark01/24/18
It's probably an app like Our Family Wizard or Our2Homes. Is guyingorillasuit01/24/18
Both. She told him on several occasions that his communicati cacrimdefense01/24/18
You will really need to do for your jurisdiction authenticat tom_foolery01/24/18
The issue is authentication. You might try filing a motion t boomeresq01/24/18
Severing the cases is the winning strategy. How bad are the thirdtierlaw01/24/18
You want to go creative, challenge the charge and restrainin jorgedeclaro01/24/18
The problem with the argument is that the woman obviously wa thirdtierlaw01/24/18
She wants the RO, that's not the issue. It restrains my clie cacrimdefense01/25/18
Thank you one and all! I greatly appreciate the suggestions/ cacrimdefense01/25/18
OK, here's what transpired the week before last: The D to cacrimdefense02/12/18
You should stop posting details about your client's communic porochi02/12/18
Remember to always falsify some facts for deniability. jorgedeclaro02/12/18
Oh boo hoo. No one could identify him, these stories are a d wolfman02/12/18
Much will hinge on how tight the RO language is. Does the la nighthawk02/12/18
He's telling you he intends to violate the order, but only i onehell02/12/18
I'm quite aware of the fashion in which he's attempted to us cacrimdefense02/12/18
Oh I know you haven't crossed the line, but your client soun onehell02/12/18
I can't argue w/ your reasoning here. Thanks. cacrimdefense02/12/18

cacrimdefense (Jan 23, 2018 - 9:15 pm)

Opinions/Ideas from those of you in the JDU Universe who represent or prosecute (or have represented or prosecuted) criminal defendants will be appreciated.

The Situation: The D was facing a pair of misdemeanor charges. When he was arraigned, as per California law regarding his type of case, a restraining order was issued. The terms of the RO are that he stay 100 yards away from the alleged victim/baby mama, the victim's home, place of employment, and he may not communicate w/ the victim EXCEPT for the purpose of parenting/exchanging kids for visitation/making parental decisions.

For the purpose of communicating, the victim and the D have been using an app designed to record e-mail communications between the two parties. As it turns out, the D was using the communication service to discuss all sorts of things w/ the victim, unrelated to the care and maintenance of their kids. Mostly, he was pleading with her to come back, proclaiming his undying love for the victim, and attempting to salvage the romantic relationship. Such type of communications by the D went on for approx. a month.

About a week ago, the victim printed out the communications she had w/ the D for the past month via this app (almost 150 pages), and turned it over to the DDA working her case. Consequently, an amended complaint has been filed that now includes a third misd. charge against the D for violating the restraining order.

My Question: What can I do to keep this document from getting in front of the jury (besides plea-ing my guy out prior to trial)? Obviously, I'm going to object to the introduction of the print-out on the grounds of hearsay and it being confusing/excessively prejudicial to the jury. I doubt those objections will work, however. Can anyone think of something I haven't? I welcome all knowledgeable input. Have you done something imaginative or terribly creative, in a similar situation, in one of your cases in the past that's worth a shot?

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trollfeeder (Jan 23, 2018 - 10:08 pm)

I don't understand what the app does, can't you save email communication in an email client? If it printed out in some weird format, perhaps you can argue that there is an authentication issue. Relevance doesn't work, and it is a statement against interest, so hearsay doesn't work. Otherwise, your client hosed himself. I would try to wrap it up into a plea at this point.

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juniordark (Jan 24, 2018 - 12:00 am)

Just spitballing here - look into the case law on filing a motion to sever the added count for a separate trial. It would likely depend on what's in the document, and probably the 403 test in your jx as well.

Then if you get a separate trial on the restraining order charge, it's still an uphill battle. Whether D had actual notice of the terms could be an issue, what the elements are of the charge - is there an exception for contact consented by the protected party, how far from the judge's original order was D's communication and can you stretch it - "parental decisions" could include getting back together, after all, right? Hell, maybe even some kind of constitutional challenges to the charge against your client as-applied for vagueness of the original order and/or 1A infringement, or some state constitutional issues (you say you're in CA right? how's your judge?). The authentication/admissibility of the document is a good starting point too.

In the end you always have jury nullification. If these are emails of affection they will look way better to a jury than threats or obscenities.

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guyingorillasuit (Jan 24, 2018 - 2:42 am)

It's probably an app like Our Family Wizard or Our2Homes. Is there anything in the printout that suggests that she communicated to him that his messages are inappropriate? Or did she engage him in conversation instead? That would be a big distinction.

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cacrimdefense (Jan 24, 2018 - 12:09 pm)

Both. She told him on several occasions that his communications about staying together were inappropriate, and he routinely ignored the victim's admonishment (and just kept begging). Sometimes she answered by saying she doesn't want a future where they live together again.

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tom_foolery (Jan 24, 2018 - 5:34 am)

You will really need to do for your jurisdiction authentication rules and get ready to explain it well for a judge. Maybe it has a chain of custody type requirement. For internet stuff, sometimes there is caselaw that says it's unreliable

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boomeresq (Jan 24, 2018 - 7:05 am)

The issue is authentication. You might try filing a motion to suppress based on whatever your jurisdiction has available. It could possibly be an entrapment based on how long she waited to report it. The problem is with restraining orders any unapproved communication becomes almost a per se violation.

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thirdtierlaw (Jan 24, 2018 - 9:29 am)

Severing the cases is the winning strategy. How bad are the actual e-mails? I know a lot of DAs are "afraid" to take ONLY a Violation of an abuse prevention order to trial when it seems like the "victim" is both engaging and encouraging the conversation. Especially if she waited a month to report it to the DA. However, if they aren't severed those, "loving communications" take on a totally different light in front of the jury.

I'm also interested in how the e-mail app works. Authentication arguments might be helpful there. But I suspect on something like this, the judge will say, it's more of a factual issue on whether or not he was the one who sent her the e-mails.

The reality is that you have a loser of a case. So the winning strategy may be to file a motion to sever, a motion to exclude, etc. Put the state in a situation where they need to decide if 3 misdemeanors are really worth all this trouble and try to get a good deal.

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jorgedeclaro (Jan 24, 2018 - 7:49 pm)

You want to go creative, challenge the charge and restraining order as a violation of the First Amendment for free speech and freedom of association. The restraining order is a content-based restriction and prior restraint on speech as it forbids speech specific to its content. Does the government have a compelling interest in restricting otherwise lawful speech between consenting adults? Same thing on freedom of association.

I've always been of the belief that the court cannot enter a restraining order over the objection of the protected party without satisfying strict scrutiny. What's the basis for preventing consenting adults from associating with each other? None, nada zip.

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thirdtierlaw (Jan 24, 2018 - 7:59 pm)

The problem with the argument is that the woman obviously wants the restraining order in place.

In CA are complaining witnesses unable to lift the restraining order?

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cacrimdefense (Jan 25, 2018 - 2:50 pm)

She wants the RO, that's not the issue. It restrains my client, not the victim. She wants him just to shut up about everything else, and get his mind in the frame of being a cooperative single parent.

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cacrimdefense (Jan 25, 2018 - 2:54 pm)

Thank you one and all! I greatly appreciate the suggestions/ideas.

When this matter works its way through to resolution, in one manner or another, I'll let you guys know what happened.

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cacrimdefense (Feb 12, 2018 - 12:36 am)

OK, here's what transpired the week before last:

The D took a plea bargain we negotiated: He copped to Count 3 (Violating a Protective Order) and the first two charges against him were dropped. In add'n to the misd. conviction, he has informal probation for 3 years, has to take some anger management classes, pay some fees, etc.

Of course, one of the "etc." listed above is a protective order, preventing him from getting near his GF/Baby Mama victim, and limiting him to communications w/ her to through-his-attorneys-only (Me and the lawyer handling his custody case).

Naturally, b/c his inability to stop running his mouth at the victim was the problem w/ this case all along, I warned the D beforehand that there was no point taking the plea bargain if he was just going to blow off the RO again. I assured him the consequences would be more severe, and that the judge would be properly pissed off if he went back to his endless begging and ignoring the authority of the court.

For the first 48 hours after his conviction the D went cold turkey. He kept voicing his shock that things had resulted in the current situation, opining about the "insanity" of the RO, and generally bemoaning his poor fortune. He texted me at least two dozen times during the first two days. About 2/3 of his communications were repeated instructions to call the girl, and tell her she needs to go to court to modify the protective order (Naturally, I declined). The other 1/3 were inquiries of the following type: Is it OK if I call her parents? Can my mother call her? Would it be all right if my mother called her parents (Of course, I pointed out that all these efforts were simply pretexts for him to pass along messages and info to his former GF, and were therefore prohibited)?

This past week was calmer. I spoke to him on Monday and Friday for the purpose of checking to see if the D was still out of custody. He advised me that he has only been violating the restraining order in ways that he believes avoid recordation (when they exchange the kids at a mutual friend's house). He was terribly sullen, said seeing his children only makes him more depressed b/c they remind him of the love he lost, and that he can't concentrate on his work and anticipates his business going belly up b/c he's ignoring it. Further, he conveyed he can't believe that his former GF said (to the D's face), "I'm happy with the restraining order terms the way they are."

Whether the following is true or not, I won't know until later: The D related that he is now doing his homework on countries to which he can relocate to start over, and more significantly, avoid his child support obligations.

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porochi (Feb 12, 2018 - 1:48 am)

You should stop posting details about your client's communications with you on a public forum. You've already revealed enough info. that someone who really wanted to could probably ID your guy. You're a lawyer, not a gossip columnist.

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jorgedeclaro (Feb 12, 2018 - 5:58 pm)

Remember to always falsify some facts for deniability.

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wolfman (Feb 12, 2018 - 2:47 am)

Oh boo hoo. No one could identify him, these stories are a dime a dozen in a state bigger than a bunch of European countries put together. Thanks for posting an update, OP. It's a good thing I'm not a crim/family lawyer, since I feel like I would not be able to keep from slapping some sense into the client in your situation... unless he was maybe paying me a ton. Is he paying you a ton? I sure hope so.

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nighthawk (Feb 12, 2018 - 9:47 am)

Much will hinge on how tight the RO language is. Does the language make clear that only parental decisions can be discussed? What is the meaning of parental decisions? Can cohabiting for the sake of the children be construed as part of the permitted actions. Many of these types of documents are drafted broadly, leaving some grey area. Your job, as defense attorney, is to work that language.

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onehell (Feb 12, 2018 - 1:40 pm)

He's telling you he intends to violate the order, but only in ways that won't be recorded. He's also asking you to funnel messages to the GF that have nothing to do with the kids.

In short, it sounds to me like the focus of the representation is now shifting away from defending against charges of past violations of the restraining order or evaluating whether a proposed course of action would violate it. Instead, he's trying to use your assistance to find ways to commit new violations without getting caught. That's an ethical no-no.

You are his lawyer, not his accomplice. You're getting close to that line where you have to consider withdrawal IMHO.

For the future, this is a good thing to think about up-front. One thing I always used to do with prospective clients, BTW, is try to ascertain whether they have accepted the fact that the romantic relationship is over. If they were still in denial about that, then I didn't take them on. I would say something like "sure, reconciliations happen. But I'm not a therapist. Saving the marriage/relationship is simply not an objective I can help you achieve, nor is it an objective that will accomplish anything but getting you into trouble if your ex does not share it."

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cacrimdefense (Feb 12, 2018 - 1:50 pm)

I'm quite aware of the fashion in which he's attempted to use me to pass along prohibited communications, and I have not done so on even a single occasion. Believe me, "accomplice" is a term that has flashed through my mind multiple times, and I will engage in none of the necessary conduct for it to be accurately applied to me.

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onehell (Feb 12, 2018 - 2:25 pm)

Oh I know you haven't crossed the line, but your client sounds like a habitual line-crosser. Time for a Come to Jesus talk: "I can't help you break the law, and if that's what you're going to keep asking me to do, or if you're going to carry on violating the restraining order despite my advising you not to, then I will not be able to represent you anymore."

Even if you refuse to actively assist, him saying "I'm still blowing off the order, but don't worry, I'm not leaving a paper trail this time," still puts you in an ethical quandary.

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cacrimdefense (Feb 12, 2018 - 5:34 pm)

I can't argue w/ your reasoning here. Thanks.

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