{"id":530,"date":"2011-09-22T06:18:40","date_gmt":"2011-09-22T06:18:40","guid":{"rendered":"http:\/\/www.markagallagher.com\/socaldefenselawyers\/its-the-case-of-the-innocent-bystander\/"},"modified":"2020-10-30T20:48:23","modified_gmt":"2020-10-30T20:48:23","slug":"its-the-case-of-the-innocent-bystander","status":"publish","type":"post","link":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/its-the-case-of-the-innocent-bystander\/","title":{"rendered":"It’s the case of the Innocent Bystander!"},"content":{"rendered":"

\"\"<\/a>So I know a guy, let’s call him Innocent, who is facing 6 years in prison for, literally, standing around doing nothing.<\/p>\n

Innocent lives in an apartment building in Los Angeles, is (was) gainfully employed, and has had no trouble with the law in 10 years (10 years ago, he had a conviction for 1st degree residential burglary).\u00a0\u00a0For his wrongdoing 10 years ago, he paid the consequences, and then\u00a0turned his life around.<\/p>\n

So a few weeks ago, Innocent was at his apartment complex, standing by the pool, watching over his son. \u00a0The front window to his apartment, which faces the pool on the second floor, was open to let in some air.\u00a0 Suddenly the LAPD shows up at the small complex, looking for someone.\u00a0 This someone was apparently an associate of one of Innocent’s neighbors.\u00a0 Innocent did not know this person, had never heard of him, and so informed the LAPD when they asked him.\u00a0 After giving the LAPD his name at thier request\u00a0— which\u00a0is, in itself, intrusive\u00a0—\u00a0Innocent went back to standing by the pool, minding his business.<\/p>\n

About 10 minutes later, Innocent noticed that his front door was open.\u00a0 When he went up to his apartment to close the door, he found that LAPD officers had entered his apartment, and were frantically searching around, looking in the closets, opening drawers, and looking under couch cushions (???).\u00a0 Well, it turns out the police found some old .22 caliber rounds, rolling around loose\u00a0in an\u00a0open shoebox on the closet shelf.\u00a0 This shoebox contained some miscellaneous tools, and other “junk” items.<\/p>\n

Innocent was then arrested in his own living room, as he was not, due to his old felony conviction, allowed to possess any type of ammunition.\u00a0 Of course, no firearm, nor any other items of “contraband,” were recovered from Innocent’s apartment.<\/p>\n

The District Attorney’s office filed felony charges against Innocent, to wit: Felon in possession of ammunition, with one prior that is considered a “strike” within California’s “Three Strikes” sentencing scheme.\u00a0\u00a0 If a person has a prior conviction that qualifies as a “strike,” the Court has the authority to “double” his or her sentence on the present offense — which does not need to be a “serious or violent” felony.\u00a0 Furthermore, if a person has even one “strike” prior, they have to serve 80% of thier time; there is no “half-time” credit for second or third strike cases.<\/p>\n

So Innocent finds himself in jail, with\u00a0his world turned upside down.\u00a0 His lawyer keeps assuring him that the LAPD’s entry into his apartment was warrantless and illegal, and that all the evidence seized pursuant to the search (i.e., the rounds of ammunition) must be suppressed, and if said evidence is suppressed, the case against him will be dismissed.<\/p>\n

However, the prosecutor is satisfied with thier “offer” to plea bargain: they are offering him 16 months in state\u00a0prison, where he would get half-time credits.\u00a0 The prosecution’s offer is only open, however, if he takes it immediately, prior to litigating the search issue.\u00a0\u00a0 If Innocent wants to fight the illegal search, the plea bargain goes “off the table,” and he is stuck with, potentially, a bunch of incarceration time. So Innocent is straddled with a dilemma:\u00a0 exercise his right to stand up to a clearly illegal search, or serve time due to police’ bad behavior and unlawful intrusion.<\/p>\n

This is the kind of thing that, as a Defender, seriously offends and outrages me.\u00a0 It is a bizarre form of extortion, in my estimation.\u00a0 I cannot, on behalf of my clients, tolerate it.\u00a0 So to this type of unfair play, I say ‘stand up to it!’\u00a0 In my practice, I have found that more often than not, no matter how many motions are filed and aggressively litigated (and I admit, I love filing motions — I’m always looking for the ‘technical knockout’), there is a good chance that if all else fails, a little persuasion (and, on occasion, wheedling) will get the original offer back on the table.<\/p>\n

However, the client, the one in jail, is often scared to death, and doesn’t want to chance anything.\u00a0 I have had clients tell me that they feel powerless, up against odds they cannot fathom, and frightened to challenge “the machine.”\u00a0 I cannot express strongly enough that prosecutors know this, manipulate it, and even bank on it.\u00a0 It is not fair.\u00a0 This is not how our system is intended to work.<\/p>\n

Those who are accused need\u00a0a lawyer who doesn’t share in thier fear, and buy into it, and take the easy or frankly, the lazy way out.\u00a0 Your Defender is there to fight for you, so get to it, I say, have at it.. FIGHT ALREADY!!\u00a0 That’s just how I practice law; I don’t submit to extortion tactics when dealing with anyone’s freedom, period.\u00a0 Which is not to say I’m unfriendly with or even angry at prosecutors: they have their job to do, and I have mine.\u00a0 It isn’t personal.\u00a0 But someone’s freedom?\u00a0 It doesn’t get any more personal than that, and freedom should be\u00a0protected always, no exceptions.<\/p>\n

I believe that Innocent will be out of jail by October 1st, at the latest.\u00a0\u00a0 I’m always here to help — and to win, whenever possible — so feel free to contact my office anytime at\u00a0LyndaWestlundLaw.com<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

So I know a guy, let’s call him Innocent, who is facing 6 years in prison for, literally, standing around doing nothing. Innocent lives in an apartment building in Los Angeles, is (was) gainfully employed, and has had no trouble with the law in 10 years (10 years ago, he had a conviction for 1st…<\/p>\n","protected":false},"author":13,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"footnotes":""},"categories":[19,76],"tags":[],"class_list":["post-530","post","type-post","status-publish","format-standard","hentry","category-california-criminal-law-blog","category-know-your-rights-constitutional-law-blog"],"_links":{"self":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/530","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/comments?post=530"}],"version-history":[{"count":1,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/530\/revisions"}],"predecessor-version":[{"id":5673,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/530\/revisions\/5673"}],"wp:attachment":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/media?parent=530"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/categories?post=530"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/tags?post=530"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}