Legal Blog

What Is Prosecutorial Misconduct?

Published on November 21, 2022

Video Transcript:

Prosecutorial misconduct can result in a criminal conviction being overturned. I’m a criminal appeals lawyer and I handle these types of cases. Essentially, prosecutorial misconduct is when the prosecutor commits misconduct, and what that means is when the prosecutor violates one of the rules about how there are certain rights defendants have. There are rules about what prosecutors are supposed to do and the rights that defendants have in a criminal case.

Some common examples of prosecutorial misconduct, things that have happened in prior cases and have resulted in convictions being overturned: One example is if the prosecutor is personally vouching for the truth of certain witnesses, trying to convince the jury that the prosecutor somehow knows who’s telling the truth and who isn’t telling the truth. Another example of prosecutorial misconduct that could overturn a conviction is what’s called a “Brady violation”, which means not turning over important evidence to the defense, evidence of innocence, evidence of how a witness has a criminal record or has a record showing that they are untrustworthy. That is considered a Brady violation. Another example of prosecutorial misconduct is when the prosecutor asks improper questions during cross-examination. For example, when cross-examining the defendant, ask questions to the defendant that are irrelevant to the case and would prejudice the jury. For example, asking questions about the defendant’s religious status if it has nothing to do with the case and it is solely to inflame the passions of the jury. Another example is if the prosecutor misstates the facts deliberately in front of the jury in an effort to sway them and get a guilty verdict in a way that is inconsistent with the facts. There are many, many other ways that prosecutors can commit misconduct.

Prosecutors are supposed to be agents of the court. They are supposed to be trustworthy, reliable. Our Criminal Justice System relies on their honesty and them doing the right thing. And so, in the cases that I’ve cited where the prosecutors have done the wrong thing, in any case where the prosecutor commits misconduct, that could be a basis for overturning the conviction. There are different types of appeals for trying to challenge prosecutorial misconduct. One common type of appeal is a direct appeal after a trial and conviction about what happened on the record. Another common type of appeal is called a writ of habeas corpus which is often about things that are not on the record. There is also a federal writ of habeas corpus about violations of federal rights. Many different types of appeals, but essentially prosecutors have a duty to uphold the law and to follow the law and make sure the defendants’ rights are protected.

If you have any questions about prosecutorial misconduct on a case that you’ve been following, you’re welcome to call me. I’d be happy to speak with you or have another member of my firm speak with you. Thank you. Take care.

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What Is Oral Argument in an Appeal?

Published on November 21, 2022

Video Transcript:

Oral argument is an element of many different types of appeals. I’m criminal appeals lawyer. I’ve done oral arguments many times and I’ll explain to you what they involve. Essentially, an oral argument is the opportunity near the end of an appeal to explain and answer questions that judges might have about the case. Now, to understand more about oral arguments, it is helpful to understand how appeals usually progress.

Appeals are almost all written documents. The defense counsel, the appeals defense lawyer, will argue how a person’s rights have been violated in the criminal case for example. Then the government may respond with their own written document, and often, then the defense has a chance to respond again. So, it’s almost all written but at the very end, here’s an opportunity for this oral argument.

Now, there are a few key points about oral argument. Number one is, you’re not allowed to bring up new arguments that you had not already raised in the written documents. You can’t bring up new arguments. The second thing that’s important to know is that this is often an opportunity for judges to ask questions about the case. Sometimes, judges are on the fence about how they want to rule, and if that’s the case, they will ask hard questions to both sides about hypothetical situations, about other case law to help the judges to make their decision.

But the third piece of information about oral argument is very important, which is that often it is not needed and not particularly helpful. In many cases, all of the arguments are clearly laid out in the written documents. Now sometimes, judges will ask for oral argument because they have particular questions, but oftentimes the written documents themselves, that’s enough. It explains the issue, it explains the arguments, it gives the examples, it cites the law, it cites the facts of the case. So, oral argument doesn’t need to happen in every single case.

I hope this has been helpful. If you have any other questions about oral argument or criminal appeals in general, you’re welcome to call me or call somebody else in my firm. Thank you. Take care.

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Do You Get a Free Lawyer for a Criminal Appeal?

Published on November 20, 2022

Video Transcript:

You are entitled to a lawyer when you appeal a criminal case, but the question is, are you entitled to the government to pay for your lawyer? There are certain types of appeals where the government will pay for a lawyer to represent you. The most common example is after you’ve been convicted after a trial, typically, the government will then select and appoint a lawyer to represent you. Either the court will select a lawyer or there will be a list of eligible lawyers for the government to pay to represent you during an appeal. Those types of appeals, you do get a free lawyer.

You’re also welcome to hire a private lawyer. I actually do private criminal appeals for clients all over the country, all over the state. So, you’re entitled to a free lawyer in that type of case. There are other cases where you’re, generally speaking, not entitled to a lawyer. For example, if you plead guilty and then decide you want to appeal for some reason, maybe there was a problem with the guilty plea. Typically, you’re not automatically entitled to a lawyer in that case, only in rare circumstances. Other types of appeals, you’re not entitled to a free government-paid lawyer, although you could get your own private lawyer. For example, a writ of habeas corpus. That’s a type of appeal where the government will only choose to give you a lawyer for free, so to speak, if you make out certain arguments, if it looks like your writ of habeas corpus is likely to be granted or has very strong arguments.

So, it’s almost like a catch-22. You have to do a great job in articulating why you have a strong case and only then, would the government agree to provide you with a lawyer. Many people therefore choose to hire a private lawyer for a writ of habeas corpus. There are other types of appeals, really, “post-conviction relief” that aren’t technically appeals where you are not entitled to a lawyer paid for by the government, but you could get your own private lawyer. An example is an “application for commutation of sentence”. That’s an application to the governor’s office or it could be to the president’s office asking for a sentence to be cut short.

There are other types of character-based applications where typically, you do not have a lawyer provided for you by the government. You have to hire your own if you want a lawyer or you can just do something yourself if you want to represent yourself. Hope that answers your question. Many times, you are entitled to a free government lawyer, not of your own choosing, but of the court’s choosing or the government’s choosing, and generally speaking in all appeals, you are entitled to choose your own private lawyer if you do want to hire private lawyer.

If you have questions about criminal appeals, you’re welcome to call me. I’d be happy to speak with you or have someone else in my firm speak with you. Thank you. Take care.

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What Is an Opening Brief in an Appeal?

Published on November 20, 2022

Video Transcript:

What is an opening brief? An opening brief is generally speaking, the first document explaining why an appeal is appropriate, and why a conviction should be overturned, or a lower court’s decision should be overturned. The opening brief is usually created after the record from the court is created. So first, the record is created in the court and then whoever is appealing will file an opening brief; a document essentially, saying here is how the judge made an improper decision or here is how my client’s rights were violated. An opening brief will describe all that.

After that, the government will have an opportunity or the opposing party will have an opportunity to reply, usually a respondent’s brief, and then there was often a reply where the person who is appealing has the last word and can say, well, the respondents brief was wrong, and here is why. So, the opening brief though, is the first primary document explaining why an appeal is appropriate, why a lower court’s decision should be overturned.

I hope this has been helpful. If you have any questions about opening briefs, call me, I’d be happy to chat with you or have another lawyer in my firm speak with you. Thank you.

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What Is a Medical Reprieve of Sentence?

Published on November 18, 2022

Video Transcript:

What is a medical reprieve of sentence? A medical reprieve of sentence is essentially a cutting short of a person’s sentence for medical reasons. I’m an appeals lawyer. I handle all types of executive clemency applications, and this is essentially what it is: You’re applying to the governor. You’re saying, this person has this medical condition, or this person is in danger because of their medical condition, or this person otherwise needs to be released from prison because of some medical-related circumstance.

Maybe they had a compromised immune system, maybe they’re very old and are diagnosed with some ailment, maybe they are an increased medical risk because of whatever medical condition they have due to the confined quarters of the prison. So, a medical reprieve of sentence is asking for the governor to cut short a person’s sentence based on their medical condition.

Now, generally speaking, it’s also helpful if they have good behavior in the prison, and if somebody is stabbing guards left and right, they’re not going to get any help from the governor. But it’s primarily focused on their medical condition and how it is fair and appropriate for them to get out of prison earlier than they would normally get out of prison in order for them to receive the medical treatment that they need or to be in a safer condition.

If you have any further questions about a medical reprieve of sentence, or anything else about criminal appeals, I’d be happy to speak with you. You’re welcome to call me or call one of the other lawyers at my firm. Thank you. Take care.

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What Is a Commutation of Sentence? How to Win?

Published on November 9, 2022

Video Transcript:

What is a commutation? A commutation of sentence? Well, I’m an appeals lawyer, a criminal appeals lawyer and I apply for commutations of sentence all the time for my clients. I’ll tell you what it is and I’ll tell you how to try to win them. What it is? It is a shortening of sentence from the governor or from the president. Every State’s Governor has certain executive privileges, and in most states the governor has the power to commute or cut short a person’s sentence. The United States President also has the power to commute or cut short a person’s sentence. Now, state governors have the power to commute sentences on state crimes. The president has the power to commute sentences on federal crimes. Most crimes are state crimes. Murder, robbery, attempted murder, shoplifting, all sorts of things, most of them are state crimes, and so, if someone’s been convicted of a crime, usually it’s a state rime. So, a commutation of sentence is a cutting short of that sentence so the person can get out of prison earlier.

The second question is how to win? How to win a commutation of sentence? And the main way to win is to show good character, show that the person deserves a commutation, deserves a shorter sentence. Most people who are commuted admit that they did the crime, and so, it’s not a question of whether they’re innocent or there’s a problem with their conviction, but rather they show good character, they show that they’re a person who deserves to be released early. They’ve done well, in the prison, they’ve been in programs in the prison, educational programs, rehab programs, they’ve helped other inmates and very importantly, often that they have a game plan for when they get out of prison. They can support what they’re saying, I want to work in a certain place and I have a job offer letter. I’ve family who say they’re going to house me, so I’m not going to be homeless in the streets. So, showing that the person morally deserves this and we’ll be able to reintegrate in society, that is really how to win a commutation application.

I hope this has been helpful if you have any questions about commutations or executive clemency or any other type of appeal, call me, I’d be happy to chat with you or have another lawyer in my firm speak with you. Thank you.

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California AB 2799 — Excluding Use of Rap Lyrics Against Defendant

Published on October 6, 2022

Effective September 30, 2022, prosecutors will be limited in their ability to use rap lyrics against criminal defendants to show a propensity for violence or for committing crimes or as character evidence. The California “Decriminalizing Artistic Expression Act,” AB 2799, amends evidence rules in criminal proceedings and gives judges direction on how to determine whether the “probative value” (whether the evidence establishes a fact relevant to the crime charged) of using artistic expression against the defendant outweighs the risk of prejudice and bias that can arise from the use of artistic expression, such as rap music, to prove that a person is guilty of a crime.

Although the Act is not limited to rap music, the motivation for passing the act was the increasing use of rap lyrics against defendant of color, which endorses stereotypes and increases the risk of juror bias against them.

Use of artistic expression against a defendant is not entirely prohibited, but its introduction is limited. A judge, in determining whether the probative value of the evidence outweighs the “substantial danger of undue prejudice,” must first recognize that the probative value of creative expression for its truth is minimal unless that expression meets specified conditions. While this does not create a presumption that the expression cannot be used, it is significant that the court must start its analysis with the fact that the value of using expression for “literal” truth is minimal.

The court is also required to consider the danger of bias against a defendant and must hear testimony (if offered) on the genre of creative expression, including the context of such expression, and on research demonstrating that the introduction of a particular type of expression introduces bias into the proceedings. Such testimony must be presented outside the presence of a jury to avoid potential prejudice.

Artistic expression may, however, sometimes be used as evidence of a defendant’s guilt, but only when the expression was “created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available.”

AB 2799 is a victory for criminal defendants, especially rap musicians, in that it expressly limits the use of artistic expression to demonstrate the bad character of the defendant or to show that he or she has a propensity to commit violence or engage in crimes. Eliminating bias and stereotyping is crucial to a fair trial, and defendants have one more protection against the introduction of evidence against them that is unrelated to the underlying facts of the crime.

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Spolin Law P.C. Seeks Compassionate Release for Clients After California AB 960 Becomes Law

Published on October 6, 2022

Recently passed California AB 960 gives inmates with serious illnesses and other medical conditions new opportunities for resentencing and compassionate release.

AB 960 attorney Aaron Spolin and his award-winning legal team are ready to file applications to seek compassionate release for clients. We know that you want to be home with your family, and our goal is to help you return to a more normal life. Call us today at a class=”ibp” title=”Call Spolin Law P.C. Today!” href=”tel:866-963-7561″>(866) 963-7561 to find out if you qualify for AB 960 relief.

What Is AB 960?

In a triumph for incarcerated persons who seek release from prison due to a serious medical condition, California passed Assembly Bill 960, effective September 29, 2022. Now, inmates with serious and advanced illnesses that have end-of-life trajectories and other serious medical conditions may be eligible for resentencing and compassionate release.

Who Is Eligible for Compassionate Release Under AB 960?

The old law allowed the release of prisoners only if they were diagnosed with a terminal illness likely to result in death within 12 months or if they required 24-hour care. Now, if an inmate has a serious and advanced disease or medical condition with an “end-of-life trajectory” or is found to be permanently medically incapacitated, they may be eligible for compassionate release.

Inmates no longer must prove that they require 24-hour total care requirement. Compassionate release is available for people with functional impairments resulting in the permanent inability to complete one or more activities of daily living as well as those with progressive dementia.

AB 960 Recall or Resentencing Process

A critical feature of the new law is that it requires the California Department of Corrections and Rehabilitation (CDCR) to recommend recall or resentencing for someone who meets the medical criteria for resentencing. The law also requires that a hearing must be held within 10 days of the recommendation of the Department to avoid delays in release.

Presumption of Eligibility

The new law creates a presumption that a person who meets the medical criteria will be given compassionate release unless they pose an unreasonable risk of danger to public safety.

Right to Legal Counsel

Indigent incarcerated persons referred to the court for recall and resentencing under these provisions are entitled to appointed counsel to handle their hearings.

There may be some complications with the CDCR recommending inmates for resentencing and compassionate release. Further, prosecutors may claim compassionate release is inappropriate due to risk to public safety. It’s important that you work closely with a post-conviction relief attorney who can help you navigate the AB 960 hearings.

Contact an AB 960 Lawyer at Spolin Law P.C.

Compassionate release for serious medical conditions has long needed an overhaul. With the changes in the definition of medical conditions that qualify for resentencing and release and the new procedures for speeding the process along, more inmates who deserve compassionate release will be able to get it.

The award-winning legal team at Spolin Law P.C. is ready to file applications for resentencing and compassionate release under AB 960. Our lead attorney Aaron Spolin has extensive experience getting successful outcomes for clients like you. Call us today at (866) 963-7561 to learn more about your options for compassionate release under AB 960.

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What Is a Case Review?

Published on August 23, 2022

Video Transcript:

Many clients ask me about the case review. What is it? What does it involve? So, I thought I’d answer the four most common questions I get. What is the case review? That’s number one. Number two, what records are reviewed? Number three, how unique is each case review? And number four, is it necessary? Is it necessary before doing any appeal?

So, the first question is, what is a case review? Well, a case review is a review of a client’s case, to see what the issues are, what the possible avenues for appeal are. It’s in great part for me to get to know the person’s case so I can know what’s available. So that’s essentially what it is. It usually ends with a written report, but not always. So that’s what a case review is.

The second question is, what records are reviewed? Typically, I like to get as much as I can but usually, I can see very early which records will be relevant and I typically review the records that are relevant to the appeals options. For example, if someone was just convicted and just sentenced five days ago, then the transcripts from the court are going to be very, very important because the direct appeal is typically an option right after somebody is sentenced, after they are convicted. Whereas somebody who may have been convicted, let’s say 20 years ago, and they’ve tried all their normal appeals, and now they’re coming to me because a witness has recanted the testimony or there’s DNA evidence showing the person’s innocence or something that’s not really related to the transcripts, well then, I would review the other material. So, I review the material that’s relevant, not necessarily every document that was ever produced in a case.

The third question is, how unique is each case review? Each case review is unique. It shows what is available for that particular client, but there is also going to be material that might overlap with another client, for example, background material. If I’m explaining what is a certain type of appeal, what is a Writ of Habeas Corpus in this state, what is a direct appeal, I’ve had to the best of my ability formulated the best articulation of what that is, and that’s going to apply to multiple different people. But of course, then the application to a particular client; that would be unique. Another example might be, there could be multiple clients in similar circumstances who have the same general types of options available to them. For example, someone in a particular state out of a particular county who was convicted at a particular time, and their sentences craft in a certain way, they might have similarity to somebody else who has those exact same circumstances. But generally speaking, it is unique to that person. But also remember one other thing which is the case review is a little bit for the client, for them to know what’s available, but it’s also in great part for me to know about the person’s case. My goal for the case review is not just to share what’s available, but for me to become a little bit of a mini expert in the case. So, me reviewing the relevant records, reading about the case, communicating with the client, that helps me to get in a position where I can say, okay, I feel like I know, you know, level 1 on this case, ready to move on if that’s what the client would want.

The fourth question is, is a case review necessary? No, it’s not necessary. What I would do for a case review is what I would do when I would start any type of appeal anyway. I would get the relevant records, I would become familiar with the case, and that would help me to do whatever type of appeal is appropriate. So, the case review is usually a good first step, because I would be doing it anyway, doing some other appeal. And it’s also a good first step because sometimes an individual might think well, they’re really a great candidate for this new law, they’ve been hearing about it, they’re a great candidate for this thing the jailhouse lawyer has been talking about, but is that really true? So, I can do a review to tell a client, you know this might be a good option, this might not be a good option. I know you’ve come to me and you want to do XYZ type of appeal, but that’s not going to work. So, it’s helpful to do a review so I can share what is realistic, what actual options are. Some clients come to me and they say you know what, I know that I want this type of appeal, I know that I want, you know, a writ of habeas corpus, I was innocent, here is the evidence, and just, I don’t care about anything else. Fine, and I can do that. So, no, a case review is not necessary. I recommend it, but it’s definitely not necessary.

Any other questions, you’re welcome to call me. You’re welcome to call another lawyer at my firm. I hope this has been helpful. Thank you.

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California Supreme Court Rules SB 1437 May Apply to Some “Special Circumstances” Murder Cases

Published on August 17, 2022

Senate Bill 1437 was passed in 2019 to allow individuals convicted of certain murder charges to get a reduced sentence. On August 8, 2022, the California Supreme Court decided in a case called People v. Christopher Strong that some special circumstance findings in murder cases do not automatically preclude defendants from resentencing relief under SB 1437.

Who Is Eligible for SB 1437 Relief?

You may be eligible for a reduced sentenced under SB 1437 if you were convicted of felony murder, special circumstances felony murder, manslaughter, or attempted murder. You can be eligible if you accepted a plea offer or were convicted by a jury.

The law applies retroactively to anyone who has already been sentenced as well as new cases, if the following apply:

  • The defendant was not a substantial actor in the murder; and
  • The defendant did not “act with reckless indifference to human life.”

Specifically, the defendant must have been convicted under the accomplice liability theory for felony murder or natural and probable consequence doctrine.

Originally, people who were convicted of “special circumstance” felony murder had petitions denied or stayed because of the special circumstances of their case. However, with the Strong case ruling, the California Supreme Court held that special circumstances do not automatically bar defendants from seeking SB 1437 relief to vacate a conviction and get resentenced to achieve a reduced sentence.

What Is Special Circumstance Felony Murder?

A felony murder is a homicide that occurs while the defendant was committing or attempting to commit a felony crime. The attempt or commission of the felony is often the special circumstance under which the killing occurs.

To be charged with special circumstances felony murder, the defendant does not have to have personally committed the felony. Aiding and abetting a felony or conspiracy to commit a felony may also be considered special circumstances. Intent to participate in committing the felony is enough to get a special circumstances felony murder conviction.

Special circumstance murder is often called “capital murder” as it can result in the death penalty. A person convicted of special circumstance murder may also be sentenced to life in prison without the possibility of parole (LWOP).

Factors Considered to Determine Eligibility for Resentencing

When determining if an individual is eligible for resentencing under SB 1437, the court will consider if the defendant was a substantial actor in the homicide or if they acted with reckless indifference to human life as described on California Pen. Code §190.2(d).

In the Strong case, the jury found true that Mr. Strong was a “major participant” who acted “with reckless indifference to human life.” However, the California Supreme Court found that this decision was made before clarifying guidance had been issued in two other cases: People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.

Those factors considered by the court include, but are not limited to the following:

  • Role of in planning the crime that led to the deaths
  • Role in supplying, using, or knowledge of lethal weapons
  • Awareness of dangers posed by the nature of the crime
  • Experience with or conduct of other participants
  • Physical presence at the crime scene
  • Opportunity to restrain or stop codefendants
  • Aid provided to the victims
  • Efforts to minimize risks of violence during the felony
  • Duration of the felony
  • Knowledge of likelihood of killing

Thus, even if you were found to be a major participant who acted with reckless indifference to human life, you may now be eligible for relief under SB 1437 according to these new court rulings.

What Laws Did SB 1437 Change?

SB 1437 amended California Pen. Code §188 and §189 and created Pen. Code §1170.95. These laws define certain terms associated with murder charges and established who is eligible for resentencing under the new law.

Soon after SB 1437 was passed, the California Legislature passed SB 775, which expanded eligibility of resentencing to people who were convicted of manslaughter under the felony murder theory or natural and probable consequences doctrine as well as attempted murder under any theory in which malice is imputed solely based on participation in the crime.

How a Top SB 1437 Lawyer Can Help You

If you were convicted of special circumstances felony murder or another eligible offense, you should immediately contact Los Angeles criminal appeals attorney Aaron Spolin. As an award-winning defense attorney, he knows the law and can apply it to your case.

When you contact Spolin Law P.C., our appeals team will investigate your case and obtain your trial records. We will determine if you are eligible for SB 1437 relief and help you file a P.C.

1170.95 Petition to get your sentence reduced. This law applies retroactively, including to those that have already been sentenced.

Call our post-conviction and appeals law firm today at (310) 773-0881.

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