There is a great deal of misunderstanding, we find, about when one can sue a criminal defense attorney for malpractice. Many people who call our office believe there is no prerequisite at all to bringing such a case, other than their belief that the attorney did not get as good of a plea bargain as expected or that the client was convicted at trial. When we tell the person calling us that actual innocence must be proven, the caller is skeptical and suspicious. However, this is correct, as one can read by clicking on the following link.
As the reader of this blog may know, actual factual innocence, established by acquittal after retrial or a grant of habeas corpus relief, is required to sue a criminal defense attorney for malpractice. This general rule, however, does not apply to a malpractice action in a Sexually Violent Predator (SVP) civil commitment case. Why is this so? To read about this exception to the general rule, click on the following link.
The following case summary is perhaps one of favorite because it demonstrates how a little knowledge in the hands of the wrong person can be a dangerous thing. A public defender in Riverside County put her knowledge of Missouri v. McNeely to the test on herself in her own arrest for DUI. Courageous? You be the judge in reading the following summary, which answers whether a DUI suspect has the right to demand a warrant for a blood test.
As one may appreciate, a judge can set conditions of probation that are designed to prevent the probationer from committing the same crime again and conditions that help educate or treat the probationer so that once probation ends, that person is able to more easily follow the law. However, some probation conditions may seem arbitrary or unrelated to such objectives. Is prohibiting a juvenile on probation from having any access to a cell phone, computer or tablet proper? Click on the following link to read about a case that addressed this issue.
It is well-known that in a criminal case, a victim may recover money in the form of restitution from defendant if defendant caused injuries or other damages to the victim. The idea is to punish the defendant by making him or her pay in proportion to the result of criminal conduct. But what if the victim was partially responsible for the result? Should defendant have to pay for that, too? The following case summary answers this question.
If someone is facing a felony, it is extremely rare to represent oneself. It is equally unusual for such a person to prepare, file and argue a Penal Code § 995 motion to dismiss. However, it occasionally does happen. What can that person do if the judge wrongfully denies the 995 motion? Is a writ of mandamus the solution? Is it an appeal? Click on the following link to find out.
One may know that if a misdemeanor is dismissed by the prosecutor, it cannot be refiled. This is known as the “one dismissal rule.” There is a “two dismissal rule” for felonies, but, as with most things in the law, there are exceptions to what one may think bars the prosecution from refiling the case (seemingly for a third try). What are the exceptions? Click on the following link to find out.
While our office does not handle civil cases for elder abuse, we do get quite a few phone calls asking for information about such a case. The phone call usually comes from a concerned heir of the elderly person, sometimes seeking to preserve an inheritance and other times honestly concerned about the safety or welfare of an elderly person. Often, the motivation for the call is a combination of the two interests. To read about what is required for a civil case for elder abuse, click on the following link.
When a case is a misdemeanor, the custody credits can be higher than a case that is a felony. The factual situation leading to this is often when a person is sentenced on a felony for one thing, i.e., a strike offense to be served at 85% minimum, and a felony, i.e., possession of a controlled substance, at the same time, but with consecutive sentences so that the possession charge is served at 85%. If the possession charge is reduced to a misdemeanor, does the amount of time one serves drop to 50% maximum? To read the decision of an appellate court on this very topic, click on the following link.
It is easy to appreciate how a witness’ documented history of hallucinations or a psychiatric condition that affects one’s truthfulness could be useful to a defendant in a case built upon that one witness’ statement to police. But how does one obtain such records legally? Does a judge need to be involved and if so, what is the proper way of seeking such records? Click on the following article to find out.