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Archive for the ‘Criminal Law’ Category

Enough of Zero Tolerance Yet Again?

Wednesday, October 21st, 2009

Six year old first grader Zachary Christie was recently suspended  from Downes Elementary School in Newark Delaware for bringing a camping eating utensil to school.  He was initially faced with the prospect of a 45 day commitment to reform school for his transgression.

In previous blog entries I addressed the Milpitas California High School Official’s decision to bar from high school graduation ceremonies a student who had broken up an on school campus fight in the name of maintaining the integrity of the school district’s zero tolerance policy on campus violence, and the United States Supreme Court’s decision of early this year in Safford School District v. Redding, where the court deemed unreasonable a strip search of a 13 year old girl alleged to have been in possession of ibuprofen.

Enough of zero tolerance yet?  The Newark Delaware School District Board voted to amend the district’s zero tolerance policy allowing for a less draconian punishment for Zachary of three to five days of suspension, rather than the initially indicated reform school commitment.  To accommodate Zachary the amendment to the policy was made retroactive to the beginning of the school year.

Are schools really moving forward?   Is this a signal of the beginning of the end of zero judgment, zero tolerance for school culture in the United States?

If you or someone you know has questions regarding criminal justice issues and youth please contact the San Jose Juvenile Lawyers at the Law Offices of Bernard P. Bray.

Will the Sun Shine Again in San Jose?

Tuesday, October 20th, 2009

On Tuesday night October 20, 2009, the San Jose City Council will address a recommendation by the Sunshine Reform Task Force, to release more police records, and increase reporting of police statistics.

Certainly not many would disagree that openness builds trust.  Recent San Jose controversies (all discussed previously in this blog) stemming from San Jose City Hall resistance to information sharing in the Daniel Pham shooting by San Jose Police case, last year’s DUI alleged injury accident case involving former San Jose police officer Sandra Woodall, and last summer’s scandal concerning alleged bad faith public drunkenness arrests in downtown San Jose, to mention but a few, all support the San Jose City Council supporting the Sunshine Reform Task Force recommendations.

Will the sun shine again in San Jose?

If you or someone you know has questions regarding criminal justice issues please contact the San Jose DUI Lawyers at the Law Offices of Bernard P. Bray.

Terminated SJPD Officers: Political Sacrificial Lambs or Cover Up Failures?

Thursday, October 8th, 2009

In March of 2008 District Attorney Investigator/former San Jose Police Officer Sandra Woodall was involved in a traffic collision that resulted in an injury. Highly regarded, and well liked, responding San Jose Police Officers Sergeant Will Manion and Officer Patrick D’Arrigo are reported to have failed to conduct a DUI investigation notwithstanding evidence of possible DUI, and to have filed police reports indicating that there was no evidence of drinking impaired driving involved with the accident.

A responding emergency medical technician latter claimed that Woodall appeared disoriented, smelled of alcohol, and admitted to drinking. The mother of the young woman injured in the accident asked the officers at the hospital to test Woodall for alcohol, and later filed a complaint when tests were not performed. Woodall was ultimately charged with DUI, and pleaded guilty to same.

Sergeant Manion and Officer D’Arrigo were both terminated from the San Jose Police Department by Chief Rob Davis who has recently been through a tumultuous run politically with widespread community discussion about discriminatory arrests, police pension costs, police substation cost overruns, sunshine law issues relating to the public’s access to police records, POA issues, to name but a few.

Was Woodall afforded special treatment because of her connection with Law Enforcement? Were the Sergeant and Officer treated overly harshly, after all a grand jury concluded that the two were not guilty of any criminal conduct? Should emergency medical technicians and citizens be second guessing more qualified police officers when it comes to crime investigation?

The most important issue of all, as far as this writer is concerned, is whether the terminated officers filed false reports with a view toward covering up a possible crime to protect a fellow law enforcement officer. Police reports are relied on by citizens, probation officers, prosecutors, judges, attorneys, insurance companies, and the laundry list goes on and on. Police reports are afforded deference to an extent that there are looked upon in many quarters as the gospel truth. The need for unqualified fidelity and good faith in the preparation of police reports is an unquestioned absolute. Police officer false reporting is a felony offense in the state of California pursuant to California Penal Code section 118.1. However, as above noted, a grand jury exonerated the Officers of any criminal conduct.

While this matter involved city employee personnel issues, the City of San Jose needs to fully address the above issues. Were the Sergeant and Officer made to be political scapegoats to revive a Police Chief’s sagging political reputation, or was there really a double standard, and bad faith exercise of discretion on the Officer’s part, in the investigation and follow up to the March 2008 traffic accident with a view toward covering up a possible crime to protect a fellow law enforcement officer?

If you have questions regarding criminal justice issues contact San Jose Criminal Lawyer Bernard P. Bray.

Now That The Gates Brouhaha is Over, Can’t We All Just Get Along?

Tuesday, September 29th, 2009

No question about it, we Americans are a nation of people that want to be left alone.  We cherish our privacy, and do not take infringements on it lightly.  This privacy phenomenon dates back to the founding of our nation, and was codified in our Constitution as the Fourth Amendment to the Bill of Rights.  People do not like government being involved in their lives, and law enforcement, in particular patrolling police officers, need to be acutely aware of and sensitive to this at all times.

This past summer’s arrest of the prominent Harvard Professor Henry Gates for disorderly conduct while having difficulty entering his home after returning from a trip, and the major American brouhaha that followed, illustrates the above point.  Gates and a driver were detained by the police after they arrived in response to a neighbor’s call of suspicious activity.  Who said what to whom seems to be at the heart of the controversy.  In light of the call the police had a legitimate concern that Gates and his driver could have potentially been up to no good.  Gates was apparently irritated by what he thought was the heavy handed manner he was treated by the police in his own home, and accused them of racism.  Regrettably, the situation resulted in Gates being arrested for disorderly conduct.

Perhaps everyone just overreacted?  Certainly the circumstances, at least as reported, and the police response bring to mind the old adage: “sticks and stones may break my bones, but names will never hurt me.”  It is this writer’s opinion that Gates should have been deferential and respectful.  There was no excuse for harsh words. On the other hand, the police should not have made the arrest.

Oftentimes I have had occasion to lecture clients on interacting with the police.  While most citizen police interactions are innocuous, when one is being formally contacted by the police only a “‘yes sir’, ‘no sir’, ‘yes ma’am’, ‘no ma’am’”, will do.  This is not the type of an encounter that one may wish to needlessly prolong or aggravate.  Demonstration of an inappropriate and/or bad attitude is never appropriate, and even dangerous, as the Gates episode clearly demonstrates.  Gates’ expression of his opinion of the officer’s perceived personal character trait for prejudice was completely inappropriate in light of the nature of the encounter. It needlessly escalated an already uncomfortable situation, and perhaps was the only reason for his arrest.

I remember an incident in the spring of 2005 when I was lecturing an early Saturday morning class.  The classroom was located in a large office mall in Milpitas, California.  My twenty five students and I were the only people in the complex that morning.  On entering the building I misdialed the security code while disarming the burglar alarm, and the thing went off.  I re-dialed the correct code and that turned it off.  Fifteen minutes into my lecture in walk the police.  Even though it was obvious what was going on, and that we were present in the classroom legitimately, they respectfully, although firmly, asked for identification which I immediately provided along with a syllabus for the lecture that was sitting on the podium, justifying our early Saturday morning presence.  That was the end of it.

Perhaps police culture in the United States has really changed over the course of the last several years.  Perhaps law enforcement in the United States has become too competitive.  I can remember back in the mid 1960s spending my summer vacations riding along with Sergeant Peter McCarthy, SFPD, as if it were just this past summer.  We patrolled what were then to me vast swaths of San Francisco, and everywhere we went, Sergeant McCarthy, my grandfather, was afforded rock star status that crossed all social, economic, and racial lines.  And that respect and deference was always returned in kind, and then some.  The man walked on water, and I loved him with all my heart, and the lessons that he and the then San Francisco community taught me during those summers of my youth about respect and deference, have guided me in all of my own public contacts throughout my life and have served me well.

I think the country lost out on an opportunity for some social healing in the aftermath of the Gates brouhaha.  Gates and the arresting officer conducted themselves terribly.  Gates was out of line for projecting anger, rather than respect and appreciation.  The officer was out of line in arresting a fifty four year old partially disabled man in his own home after he had been identified, even though he was behaving obnoxiously.  While I am generally satisfied with the work of President Obama, in this case the beer drinking invitation at the White House should have been conditioned on both parties making public and sincere apologies for their conduct, same were in order, and would have sent a much needed message to the country.  We all really do need to get along better, and not just during those times that we are sharing beers.  Now that the brouhaha has passed can’t we all just get along?

If you or someone you know has questions regarding criminal justice issues please contact the San Jose criminal lawyers at the Law Offices of Bernard P. Bray.

Is it Time to Again Re-Evaluate Police Training in Santa Clara County?

Thursday, July 9th, 2009

Six years ago San Jose Police officers shot and killed Bich Cau Thi Tran, a young mentally ill Vietnamese woman, as she stood in her kitchen holding a vegetable peeler.  The case sparked a huge local controversy, including public protests, and cries from the local Vietnamese community and other concerned interest groups for better police training in crisis intervention and cultural sensitivity.  Last month San Jose Police officers shot and killed Daniel Pham, a young mentally ill Vietnamese man, who was holding a knife when police officers were called to his home. The event has caused many in the community to harken back again to the 2003 Bich Cau Thi Tran killing.

The San Jose Mercury News has reported that since the beginning of 2004, the year following the Bich Cau Thi Tran shooting, there have been 22 more police officer involved shootings in Santa Clara County.  10, or approximately half of those, have involved people who were confirmed to be mentally ill.  Of those 10 shootings, 9 were fatal.  A disproportionate number of those killed were Asian.

According to the California Sheriff’s Association and the National Alliance for the Mentally Ill, 10% of all police 911 emergency calls statewide involve someone who is mentally ill, although in a 900 hour police academy officers only get about 8 hours of training in how to deal with the mentally ill.

The above reported statistics are troubling.  They demonstrate an obvious need for more focus on crisis intervention in emergency response training, where a heavy handed approach may not always be appropriate.

If you have questions regarding criminal justice issues contact San Jose Criminal Lawyer Bernard P. Bray.

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