Motion To Dismiss Bogus Tresspass Case

SAN BERNARDINO SUPERIOR COURT
County of San Bernardino
8303 North Haven Avenue
Rancho Cucamonga, CA 91730

PEOPLE Case No.

NOTICE OF MOTION AND  AND DEFENDANT’S MOTION
TO DISMISS TRESSPASS and DEFENDANT’S DECLARATION

Court Room: 7
Time: 8:00 a.m.
Date: July 9, 2010

_____________________________/

Defendant SHARON STEPHENS respectfully submit the this Motion, Points and Authorities, and Declaration to DISMISS TRESPASS CHARGE

Penal Code 602, as is set forth in the attached Declaration.

The charges being brought by the plaintiff, THE PEOPLE are unproven, and more often than not in perjurious, and unverified statements, and may include federal criminal charges for conspiracy pursuant to 18 USC §§ 241 and 242, which indicate serious criminal implications. No reasonable person could think that a commissioner, judge or anyone working under them could possibly conduct themselves in a fair and impartial manner considering they are facing possible criminal charges which would bring jail time or a long probation period and these charges originate from the plaintiffs and their attorney’s own statements.

TRESPASS

Penal Code 602

If one is accused of entering someone else’s property with the intent to interfere with or obstruct the business activities conducted on that property, then one must have actually interfered with or obstructed that business. If one didn't, then one has not committed a criminal trespass! In re Wallace (1970) 3 Cal.3d 289. This case holds that Actual damage … an obstruction or interference with the property’s business…is required before a Penal Code 602 California criminal trespass charge may be sustained. ALSO: One cannot be charged with "trespass" if they are visiting a person on the property. It gets down to "legitimate activity" Byers v. Cathcart, 57 Cal. App. 4th 805 (1997); SEE: Penal Code 602(o), end note 15: People v. Wilkinson (1967)248 Cal.App.2d Supp. 906, 910: The pertinent part reads as follows, "However, this subdivision shall not be applicable to persons engaged in lawful labor union activities…to persons on the premises who are engaging in activities protected by the California or United States Constitution, or to persons who are on the premises at the request of a resident or management.” I was on the property at the request of Carol Colburn. I have an open invitation from several residents to “visit anytime” and, I often act as an advocate for residents and at times bring them food.

There was no evidence of trespass or harassment of anyone, by me at Briarwood Manor. There is no evidence of me even disturbing the peace Penal Code 415.

When a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction. (People v. American Contractors Indemnity Co., (2004), 33 Cal.4th at p. 661.)

Judge S. Sabet, on May 26, 2010 gave an order to incarcerate me and set Bail at $150,000 (Excessive Bail: Stack v. Boyle 342 U.S. (1951) the U.S. Supreme Court: A judge or justice may be censured for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court did to a trial judge recently: Debra Cassens Weiss, writes, "Judge Censured for Excessive Bail, Severe Attitude", (ABA Journal, February 8, 2008).

There has been no trespass or harassment by me of anyone, anytime and there has been no evidence provided to such in this hearing, or in the original trial.

In the context of Judge Sabet's order the testimonial evidence does not either qualitatively or quantitatively meet the high threshold for a finding of trespassing, or even harassment in the State of California: Penal Code 602. C.C.C.527.6, Therefore the claim, and Judge S. Sabet’s order are void.

Void judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar anyone. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. 7 Witkin, Cal. Procedure, Judgment, 286, p. 828.) CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.

No one can be punished for disobedience of a void order. Mitchell v. Superior Court (1972) 28 Cal. App. 3d 759, 764, citing Fortenbury v. Superior Court (1940) 16 Cal. 2d 405, 408-09; seeIn re Berry (1968) 68 Cal. 2d 137, 147 (order in excess of jurisdiction).

Because the evidence does not either qualitatively or quantitatively meet the high threshold for a finding of trespassing, or even harassment in the State of California: Penal Code 602; C.C.C.527.6., and there are no material disputed facts and the undisputed facts don't establish guilt, this case needs to be dismissed

"Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."

It is held that a pro-se pleading requires less stringent reading than one drafted by a lawyer (Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA). And, Justice Blackin, Conley v. Gibson, 355 U.S. 41 at 48 (1957) "The Federal Rules rejects the approach that pleading is not a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." According to Rule 8(f) FRCP and the State Court rule which holds that all pleadings shall be construed to do substantial justice."

.DECLARATION

I, Sharon Stephens and declare I am a resident in California and I am the defendant in this matter and declare that the foregoing is true and correct under penalty of perjury under the laws of the state of California, and can and will testify to such in any court or hearing. Executed in the state of California, in the County of San Bernardino, California.



July 9, 2010 ______________________________

Sharon Stephens

MARSDON MOTION TO DISCHARGE ATTORNEY

Sharon Stephens
DEFENDANT
PO Box 9475
Rancho Cucamonga, CA 91701
760.835.8210


July 2, 2010


CALIFORNIA SUPERIOR COURT
Rancho Cucamonga, CA


NOTICE OF MOTION AND  MARSDEN MOTION


PEOPLE v. STEPHENS Case NO: MWV903720


Defendant, SHARON STEPHENS gives NOTICE OF MOTION and files for a MARSDEN MOTION to represent herself in this case, and to dismiss court appointed attorney DAVID M. GOLDSTIEN.


A Marsden motion gets its name from the case of People v. Marsden (1970) 2 Cal.3d 118. It is a request to the court by a criminal defendant to discharge their lawyer on the basis of being incompetently or inadequately represented by counsel. People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Mayfield (1997) 14 Cal.4th 668, 795.)


SHARON STEPHENS, defendant states that ATTORNEY DAVID M. GOLDSTIEN is not providing adequate representation to her: not returning one phone call, and not providing any counsel regarding the fact that she may be returned to prison by Riverside Probation Dept. if this case is not settled earlier than ATTORNEY GOLDSTIEN has time for. He is avoiding having contact with the defendant.


I DO DECLARE the foregoing is true under penalty of perjury of the State of California, and can and will testify to this in court.


July 2, 2010 _______________________


SHARON STEPHENS

MOTION TO RECUSE JUDGE SHALA S. SABET,

Sharon Stephens

PO Box 9475

Rancho Cucamonga, CA 91701

760.835.8210

August 2010

SAN BERNARDINO SUPERIOR COURT

County of San Bernardino

8303 North Haven Avenue

Rancho Cucamonga, CA 91730

CASE NO.: MWV903720

PEOPLE v. STEPHENS                                    

NOTICE OF MOTION AND

DEFENDANT'S MOTION
TO RECUSE JUDGE SHALA S. SABET                                                                                       

___________________________________/

Defendant, Sharon Stephens respectfully requests Judge Shala S, Sabet recuse herself under the California Code of Civil Procedures (CCP) Section (§)170.1 (a)(6)(C): “For any reason . . . A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
 

     Defendant believes that any reasonable person aware of the facts and circumstances would believe that Judge Sabit is biased and prejudiced, and has ignored the law.

     “The standard for disqualification provided in Code Civ. Proc., 170.1, subd. (a)(6)(C), providing for disqualification for bias or prejudice where a person aware of the facts might reasonably entertain a doubt that the judge is able to be impartial, is fundamentally an objective one. It represents a legislative judgment that,due to the sensitivity of the question and inherent difficulties of proof, as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable person would entertain doubts concerning the judge's impartiality, disqualification is mandated. To insure that proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. This standard indicates that the decision is not based on the judge's personal view of his own impartiality, and also suggests that the litigants' necessarily partisan views do not provide the applicable frame of reference. Rather, the judge ought to consider how his participation in a given case looks to the average person on the street. (emphasis added)”

                                          INTRODUCTION

      Judge Sabet has been sitting on this case as filed by the plaintiff, THE STATE and the case is active and ongoing and it has become apparent that she is bias and already believes I am guilty and acts accordingly, even ignoring my civil rights and the very law she is ruling on, even oindicating I am being untruful in my Marsdon Motion. She can not be objective in her decisions. The defendant requests that a new judge be assigned from outside of this judges’ influence.

     May 7, 2010: Judge Sabet was assigned to hear a 402 Hearing. At this hearing she stated she did "not know the law on void judgments" but proceeded to retry the void restraining order issued by Judge Rex Victor. Not only did Judge Victor issue the order without the needed legal criteria to make the order valid, but Attorney Hollenbeck missed the filing date for the hearing by three [3] days making the order also invalid, and the TRO void.

     May 25, 2010 After a retalitory eviction for complaining about fire safety and crime on Logan Management Property, year of false arrests, harassment by Amerland Group/Logan Property Management and their resident management staff, on this void Workplace Restraining Order, Judge Sabet, after stating she "did not know the law," had to seek a legal research team to make a finding on this void judgment and then on their findings had to legally declare the restraining order void and dismiss all counts. (The TRO was still undecided but I address that void order here as it is at issue.)

     However, Judge Sabet had already listened to several hours of subrogated perjury on May 7th by "witnesses," that was instigated by Deputy District Attorney Jack Liu, and Attorney Linda T. Hollenbeck, When hearing a motion to dismiss a void judgement, the court may only consider the judgement roll of the origianal hearing. But Judge Sabet's attitude toward me indicated she had already been influenced by the subrogated perjury.

    As set forth in this motion and attached Declaration, Judge Sabet's ignoring of the law, and illegally taking away my constitutional rights in order to show favor to the plaintiff the bias and prejudice is clearly revealed here by (a) particular findings that are set forth in Judge Sabet’s decision, filed May 25, 2010 in which she had me incarcerated on the void judgment, makes rude, hostile and accusatory remarks to the defendant with no factual evidence to support her remarks, (b) Judge Sabet’s unjustifiable decision to step outside of, and ignore the law to the hurt and harm of the defendant.

POINTS AND AUTHORITIES
IN SUPPORT OF SHARON STEPHENS’

   MOTION TO RECUSE JUDGE SABET

     “The facts and circumstances prompting the challenge must be evaluated as of the time the motion is brought and the evaluation of the challenge must not isolate facts or comments out of context. The challenge must be to the effect that the judge would not be able to be impartial toward a particular party.” Flier v Superior Court (1994, 1st Dist) 23 Cal App 4th 165, 28 Cal Rptr 2d 383.

                             VIOLATION OF CIVIL RIGHTS

     A claim under the civil rights act expressly gives the District Court Jurisdiction,no matter how imperfectly the claim is stated." Harmon v. Superior Ct of the State of California, 307 F 2d 796, CA 9(1962)
    The original intent of the Equal Protection Clause in the Civil Rights Act was to give the humblest and poorest the same civil rights as the most powerful and wealthy. 
     Judge Sabet entered an order on my "new" probation that I must give up my constitutional rights of due process to sue the opposing side, making it a crime if I do so. This suggest some collusion on her part with Attorney Hollenbeck, Amerland, Logan Property, and Briarwood Manor.  "The claim and exercise of a Constitutional right cannot be converted to a crime." Miller v.U. S., 230 F 486 at 489

     "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights." Sherar v. Cullen, 481 F 2d 946(1973)

     "It is the duty of the courts to be watchful for the CONSTITUTIONAL RIGHTS of the citizen, against any stealthy encroachments thereon." Boyd v. U.S., 116 US 616, 635, (1885)

     Judge Sabet has an overt bias attitude toward me in her demeanor and language, and then her excessive Bail of $150,000 that may have been "retaliation under color of law." It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the"Color of law" simply means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal).Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed. Constitution or laws of the United States. (18 U.S.C. §§ 241, 242).
 

     U.S.C. 42 §12203 The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." “Prohibition against retaliation and coercion” (a) Retaliation No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. (b) Interference, coercion, or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
     The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].

     "When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it." State v. Sutton, 63 Minn. 147 65 NW 262 30 LRA 630 AM ST 459

     "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed.,p. 512, 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." It is void.

     "Judicial immunity is no defense to a judge acting in the clear absence of  jurisdiction." Bradley v. Fisher, US 13 Wall 335 (1871)

     "Judges may be punished criminally for willful deprivation of...rights on the strength of 18 U.S.C. 242." Imbler v. Pachtman, US 47 L Ed 2d 128, 96 S Ct 37.

     "Judges have no immunity from prosecution for their judicial acts." Bradley v. Fisher, US 13 Wall 335(1871)

THE RIGHT TO A FAIR AND IMPARTIAL JUDGE
IS THE GROUNDS OF DUE PROCESS

     At this time Defendant does not argue that the fact of Judge Sabet’s rulings disqualify her. She argues that particular statements, particular findings, and particular rulings of Judge Sabin reveal a biased and prejudiced mindset, and along with an ignoring of the law. Judge Sabet’s biased and prejudiced mindset may be clearly discerned by any reasonable person who has knowledge of the facts, and the law.     Any objective person can see the prejudice will be directed towards the defendant thus: “In order to disqualify a judge, his/her prejudice must be against a party [Sharon Stephens] to the action; . . .” Evans v Superior Court (1930) 107 CA 372, 290 P 662; Kreling v Superior Court (1944) 63 CA2d 353, 146 P2d 935. 

     It is well stated in CCP 170.1 (a) (6) (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer [a pro per is acting as a lawyer] in the proceeding may be grounds for disqualification. The previous corresponding statute--Sec. 170, subdivision (a)(5)--which was repealed in 1984, had been construed to require bias in fact, with the enactment of Sec. 170.1, however, a party seeking to disqualify a California judge for cause was no longer required to prove that the judge was actually biased. The test to be applied in evaluating recusal and disqualification of judges was clearly stated many years ago in Berger v United States (1921) 255 U.S. 22:

     Does the [Declaration] of Prejudice [executed defendant] give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment (225 U.S.) In the case United Farm Workers of America v Superior Court (1985, 4th Dist) 170 Cal App 3d 97, 216 Cal Rptr 4.    

     The average person looking at this situation would see a bias by Judge Sabet toward the defendant based on unsupported fabricated and provable subordinated perjury by witnesses brought to the 402 Hearing by Deputy District Attorney Jack Liu and Attorney, Linda Hollenbeck, of which Judge Sabet did willingly listen to, accepted as true , and allowed to influence her as was apparent in her bias demeaner and attitute when incarcerating the defendant.

     Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified if person aware of facts might reasonably entertain doubt that judge would be impartial) makes the disqualification standard fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man or woman would entertain doubts concerning the judge's impartiality, disqualification is mandated. To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. The reason for the objective standard of proof is the difficulty in showing that a judge is biased unless the judge so admits. In addition, public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case. (emphasis added)” Catchpole v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42 Cal Rptr 2d 440.

     The charges being brought by the Plaintiff, THE PEOPLE are unproven, and more often than not in perjurious, and unverified statements, and appear to include civil and federal criminal charges for conspiracy pursuant to Penal Code 142, and 18 USC §§ 241 and 242, which indicate serious criminal implications. No reasonable person could think that a commissioner, judge or anyone working under them could possibly conduct themselves in a fair and impartial manner considering they are facing possible criminal charges which would bring jail time or a long probation period with these charges originating from the plaintiff.

     There can be no doubt that the conduct of Judge Sabet demonstrates, both objectively and subjectively, that Judge Sabet is biased and prejudiced against the defendant in this case, to the point she ignored the law of a void judgments, and that any reasonable person would believe that to be the case. She has listened to the subrogated perjury (PENAL CODE SECTION 118-131) of  Karen Brooks, Cassandra Oseth-Ochsner, Frank Reyes (a convicted felon), and Judy Hyden, a woman on the cusp of Alzheimer's, all brought into the court by Attorney Linda Hollenbeck and Deputy District Attorney Jack Liu. None of their fabricated and couched testimony was in the original record of the original trial, and two of the witnesses were not in the original hearing. But Judge Sabet allowed it, and it most certainly impressed Judge Sabet, and now she can obviously have no valid, unbiased ability to be impartial, or discern fact from fiction.
                         JUDGE SABET AND VOID JUDGMENT

     When deciding a void judgement challenge a judge may only look at the judgment roll record; she may not retry the case and allow for any "new testimony, or witnesses, etc." Federal decisions addressing void state court judgments include Kalb v. Feuerstein (1940) 308 US 433, 60 S Ct 343, 84 L ed 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861:

     "A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off..." People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].

      When a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction. (People v. American Contractors Indemnity Co., (2004), 33 Cal.4th at p. 661.)

     JUDGE SABET ILLEGALLY INCARCERATED ME
 

    In the May 26, 2010 order to incarcerate me on a void Stay Away Order that had been piggy-backed on a void order in June 2009 by judge Lubutti. All proceedings founded on the void judgment are themselves regarded as invalid. A void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. ... It is not entitled to enforcement. 30A Am Jur Judgments '' 43, 44, 45. Henderson v. Henderson, 232 NC 380, 100 SE2d 227. See Restatement, Judgments, ' 8.

     Judge Sabet set Bail at $150,000 (Excessive Bail: Stack v. Boyle 342 U.S. (1951) the U.S. Supreme Court: A judge or justice may be censured for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court did to a trial judge recently: Debra Cassens Weiss, writes, "Judge Censured for Excessive Bail, Severe Attitude", (ABA Journal, February 8, 2008).

    Judge Sabet then became quite rude, not hiding her bias toward me when she said with a curled lip and venomous implications in her tone, "Read my lips, IF YOU SHOULD MAKE BAIL...'" In this ruling she made a number of fact findings and mixed fact and law findings that were simply contrary to the evidence, or, the lack of evidence, presented by Deputy Jack Liu and Attorney, Linda Hollenbeck in unsubstantiated, corrupted and incompetent testimony to alleged facts heard in subrogated perjury that were never a part of the original trial.

       When a judge does not follow the law, i.e., they are a trespasser of the law, the judge loses subject-matter jurisdiction and the judges’ orders are void, of no legal force or effect. The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974)

                         JUDGE SABET’S ORDER IS VOID

    Void judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar anyone. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. 7 Witkin, Cal. Procedure, Judgment, 286, p. 828.)

    CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.

    

PRO PER PLEADINGS

 
     "Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."

     It is held that a pro-se pleading requires less stringent reading than one drafted by a lawyer (Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA). And, Justice Blackin, Conley v. Gibson, 355 U.S. 41 at 48 (1957) "The Federal Rules rejects the approach that pleading is not a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." According to Rule 8(f) FRCP and the State Court rule whichholds that all pleadings shall be construed to do substantial justice."

                                          CONCLUSION

     Any reasonable person looking at the current bench in the defendant’s case would see bias and prejudice against the defendant, and, the ignoring of the law by Judge Sabet.

     Therefore, the defendant respectfully requests that Judge Sabet and anyone under her supervision be disqualified under CCP 170.1(a)(6)(C) et seq. Defendant requests that the Presiding Judge of the Superior Court of California, Rancho Cucamonga, San Bernardino County, the Honorable Raymond Haight III, assign the defendant’s case to another department within his court, or in the alternative ask the Judicial Counsel to assign an independent Judge to this case.

     In the best interest and for respect of the court this request for disqualification must be granted. The California legislature made reasonable decisions in these rules for disqualification and the rules must be followed.

DECLARATION OF BIAS AND PREJUDICE

AND IGNORING OF THE LAW

I, Sharon Stephens and declare I am a resident in California and I am the defendant in this matter and declare that the foregoing is true and correct under penalty of perjury under the laws of the state of California, and can and will testify to such in any court or hearing. Executed in the state of California, in the County of San Bernardino, California.

August 2010                        __________________________________
                                                                    Sharon Stephens

Amerland Executives Arrested For Manslaughter

This entry was posted on June 25, 2010 at 4:31 pm and is filed under LAPD, civil rights, housing victories, human & civil rights, legal, organizing, united nations with tags amerland, jules arthur, la can, amerland group, Becky Dennison, human rights violations, ruben islas charged with manslaughter, amerland executives arrested, casa vallejo fire, martha enriquez, martha isla, affordable housing developers arrested for manslaughter, amerland group owners arrested for elder abuse. You can follow any responses to this entry through the RSS 2.0 feed You can leave a response, or trackback from your own site.

Contact: Becky Dennison 213-840-4664

For Immediate release
http://cangress.wordpress.com/2010/06/25/los-angeles-affordable-housing-developers-arrested-for-northern-ca-manslaughter-of-tenants/

Pete White 213-434-1594

Los Angeles Affordable Housing Developers Arrested for Northern CA Manslaughter of Tenants

The arrests of Amerland Group founders Ruben Islas and Jules Arthur does not come as a surprise to tenants that still live in properties they control—especially in Los Angeles. For years Amerland has been the center of controversy in Downtown Los Angeles, where the group has been working to gain a stronghold on the area’s residential hotel stock.

Islas, Arthur and three other Amerland executives, [along with Martha Enriquez, and Martha Isla],  were arrested yesterday and charged with two counts of manslaughter, one count of elder abuse and two counts of elder abuse causing death in connection with a fire that resulted in three deaths in a Vallejo retirement home in 2008.

Amerland’s failure to maintain fire protection systems has been an ongoing problem for tenants in the Group’s Downtown Los Angeles buildings. In Spring 2008 Amerland was convicted of 36 counts of fire code violations in their two Los Angeles residential hotels, and tenants of these buildings say the problems persist.

Leonard Woods, a disabled, retired worker who has lived at the Alexandria for more than a decade, said fire alarm systems still sound without cause, and disabled, elderly residents are trapped on top floors.

“When the fire alarm goes off, the elevators stop, and if you can’t get down the steps, you’re stuck,” Woods said. “People in wheelchairs, they’re cooked.”

In May 2008 the Los Angeles City Attorney filed criminal charges against the company because of fire code violations at the Rosslyn and Alexandria residential hotels. The complaint alleged, in part, that Amerland failed to repair broken fire systems and clear blocked exits at the Alexandria Hotel. Also, it alleged that the fire protection system in the Rosslyn Hotel was in such disrepair that Amerland employees were supposed to have 24-hour fire watch patrols ordered by the Los Angeles Fire Department. Amerland was later convicted of the charges.

These criminal charges came in addition to civil claims addressing issues such as illegal evictions, harassment of vocal tenants, disability discrimination, and major habitability issues.

For more information go to cangress.wordpress.com
Witnesses are available upon request.

Residents DOJ Complaint Filed on Safer Cities »$1 million settlement from Alexandria Hotel owners, City and CRA to current and former tenants

Low-income tenants at the century-old Alexandria Hotel in downtown Los Angeles, who were subjected to unlawful displacement, shutoffs of heat, water and elevator service, have negotiated a broad-sweeping case settlement in their lawsuit filed in December, 2007. This victory comes after more than three years of tenant organizing to protect their homes, including dozens of LA CAN members. The settlement sets numerous new policies and also provides compensation to the 10 most harmed tenants as well as more than 100 tenants who were wrongfully displaced.

The case of the Alexandria Hotel is much more than the classic “landlord preys on weak and vulnerable tenants” narrative. Those cases are usually characterized by slumlords, in isolation, failing to provide basic services and habitable environments for tenants who are usually poor. In the case of the Alexandria Hotel, the City of Los Angeles and the Community Redevelopment Agency were aware of the problems almost immediately after Amerland Group took control of the property. Tenants consistently raised their voices to City officials and City Councilmembers about the violations of their housing and human rights, yet the City and CRA failed to remedy those situations. But a strong group of organized low-income tenants would not give up, we continued to stand up to the political and developer interests in creating a “new downtown” and, finally, have achieved victory.

The publicly-funded project at the Alexandria, as originally approved by the CRA, was intended to revitalize the property for the benefit of current tenants. However, it became clear pretty quickly that “improving” the property involved more than new paint and kitchenettes—it also meant getting rid of the original tenants, mostly African American, extremely poor people. In response, tenants made numerous visits to Councilmember Huizar and his staff, testified publicly at the CRA Commission (because it was the local funding agency) and City Council, contacted the Mayor’s Office on multiple occasions, collected evidence to support their claims, and educated and organized dozens of tenants to fight against the mass displacement.

Instead of help from City officials, tenants and organizers were routinely ignored, targeted and/or slandered by both the developer and city officials. For example:

Þ There were emails between the developer and City officials accusing tenants and LA CAN staff of lying, drug dealing, and other things to discredit the testimony of poor people

Þ After the problems at the Alexandria were well-documented and shared, letters of support from local and state elected officials, including the Mayor and Councilmember Perry, were provided for a second project by the developer

Þ High ranking LAPD officers attended extended CRA board meetings to provide public support for the developer to off-set complaints made by tenants

Þ Multiple LAPD officers attended eviction court to testify against current tenants, although there were no convictions to report

Again, tenants did not give up in the face of adversity. LA CAN members continued to document the problems and worked with our legal partners at LAFLA to put together an amazing legal team to support the efforts of tenants. This settlement provides some long-deserved justification and compensation for tenants who stood up for their rights, faced eviction, endured humiliation and name calling by Councilmember Cardenas and others, but finally won their David and Goliath story. It also includes policy changes at the Alexandria and the CRA that will prevent similar situations from occurring in the future. LA CAN is proud of all of our members who participated in this fight, especially those who lived at the Alexandria.


Links to some media coverage:
http://www.msnbc.msn.com/id/29167925/
ttp://www.latimes.com/news/local/la-me-alexandria13-2009feb13,0,336902.story

Press release:This entry was posted on February 13, 2009 at 7:10 pm and is filed under housing victories, human & civil rights, legal, organizing with tags skid row, human rights, amerland, CRA, alexandria hotel, la can, slumlords, downtown los angeles, amerland group, logan property management. You can follow any responses to this entry through the RSS 2.0 feed You can leave a response, or trackback from your own site.

CRIMINAL PROCEDURES

The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime.

Introduction

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV, V, VI, and VIII to the U.S. Constitution. The Fourth Amendment covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A warrant is a paper that shows judicial approval of a search or arrest. The U.S. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court.

The Fifth Amendment covers an array of procedural concerns, including the death penalty, multiple trials for the same criminal offense (Double Jeopardy), Self-Incrimination, and the general right to due process. It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment addresses the procedures required at trial. It provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Finally, the Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the Fourteenth Amendment in 1868. The Fourteenth Amendment forbids the states to "deprive any person of life, liberty, or property, without due process of law" (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments.

Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a "selective incorporation" approach to determine precisely what process is due a criminal defendant. Under this approach, only fundamental rights are protected.

According to the Court, fundamental rights in criminal procedure include freedom from unreasonablesearches and seizures; freedom from Cruel and Unusual Punishment; assistance of counsel;protection against self-incrimination; confrontation of opposing witnesses; a Speedy Trial; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases in which the defendant could be incarcerated; and protection against double jeopardy. The only protections that are not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury.

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own criminal procedures, and procedures vary from state to state. State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them.

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution's search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a "reduced expectation of privacy" and because a vehicle is inherently mobile. This reduced expectation of privacy also allows police officers with Probable Cause to search a car to inspect drivers' and passengers' belongings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise. Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless Automobile Searches (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded protections under the Fourth Amendment.

Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search that is conducted in the absence of reasonable suspicion would be an infringement of guaranteed Fourth Amendment protection, and a court would strike down such an infringement as unconstitutional. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998)

Investigation

Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects the defendant against unconstitutional police tactics. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a Search Warrant is required before an officer may search a person or place, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant.Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a Hot Pursuit; and a search under exigent or emergency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999).

However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high-intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a "search" within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsensual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).

The U.S. Supreme Court's Fourth Amendment Jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspicionless vehicle seizures. The Court has held that the Fourth Amendment allows law enforcement to perform warrantless vehicle seizures at a fixed checkpoint along the nation's border to intercept illegal Aliens, so long as the search is reasonable in light of the "totality of the circumstances". United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amendment grounds the use of a roadblock to perform warrantless and suspicionless searches of automobiles for the purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).

When an officer seeks a search warrant, he or she must present evidence to a judge or magistrate. The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person's home. However, if the person is discovered with a large amount of marijuana, the quantity may support the suspicion that more marijuana may be found in the person's home, and the large amount may be used as the basis for obtaining a search warrant.

Police officers seeking a search warrant must state, under oath and with particularity, the facts supporting probable cause. If the search warrant is later found to be lacking in probable cause, or if important statements made by the officers are found to have been intentionally misleading, the evidence seized pursuant to the warrant might not be admissible at trial. Moreover, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment might not be admissible at trial. For example, if the warrant states that the officers may search only the suspect's apartment, they may not expand the search to a storage closet outside the apartment.

In executing a search warrant pursuant to the Fourth Amendment, law enforcement officers may enter private property without knocking or announcing their presence if the officers have reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit an effective criminal investigation by allowing the destruction of evidence. While the lawfulness of a "no-knock" entry does not depend on whether property is subsequently damaged during the search, excessive or unnecessary destruction of property in the course of the search might violate Fourth Amendment rights, even though the entry itself is lawful and the fruits of search are not subject to suppression.United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).

The Exclusionary Rule

The Exclusionary Rule protects the right to be free from unreasonable searches. This rule holds that otherwise incriminating subject matter that police officers have obtained illegally must be excluded from evidence. Along with the right of appeal, the exclusionary rule is a defendant's chief remedy for a violation of his or her rights in a criminal procedure.

The Stages OF A Criminal Prosecution

A criminal prosecution usually begins with an arrest. In some cases, the arrest is the culmination of a police investigation; in other cases, it may occur with minimal police investigation. Either way, the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case.

During an arrest, a criminal suspect is advised of his or her Miranda rights. These include the right to remain silent and the right to an attorney. After arrest, the defendant is subjected to a cursory search for weapons and contraband. The defendant is then driven to the nearest jail, police station, or detention center for booking. During booking, the defendant is photographed and fingerprinted, and the arrest is entered into the police log, or blotter. The defendant is informed of the charge or charges if she or he has not already been so informed. The defendant is also allowed to make one telephone call. After being stripped of all personal items, belts, and shoelaces, the defendant may be placed in a holding cell to await presentation before a magistrate. For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate.

While the person waits for this first appearance before the court, a police officer prepares a complaint against the suspect. The complaint is a document that describes the alleged crime. It is screened by prosecutors and then submitted to the court. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. If the magistrate finds that the facts alleged do not establish Probable Cause to believe that the suspect committed the crime, the magistrate must dismiss the complaint and order the release of the person from custody.

The first appearance must be held without unnecessary delay. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing, but this limit may extend to seventy-two hours if the arrest is made on a Friday.

In the first appearance, the magistrate informs the defendant of the charge or charges as set forth in the complaint. The magistrate also informs the defendant of his or her rights, such as the right to remain silent and the right to an attorney. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel, the court appoints an attorney. This is usually a public defender, but it may be a private defense attorney paid by the court or working free of charge. In most states, the attorney meets with and represents the defendant in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney.

If the magistrate finds probable cause, the magistrate sets bail in the first appearance. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. Acceptable bail is usually cash or other liquid assets. Bail is intended to guarantee the defendant's appearance at trial. In some jurisdictions, if the magistrate determines that the defendant presents a danger to the community or may attempt to flee, the magistrate may refuse to set bail. In such a case, the defendant is forced to remain in jail until the case is resolved.

If the charge is a misdemeanor, the first appearance serves as an Arraignment, where the defendant enters a plea of guilty or not guilty. The magistrate then allows the defendant to post bail or leave on her or his own recognizance, with the understanding that the defendant will reappear for trial.

Following the first appearance, a felony case proceeds to a Preliminary Hearing. Before this hearing is held, the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain, or a mutually acceptable disposition of the case. If a deal can be reached, and it is acceptable to the defendant, it is presented to the court for approval at the preliminary hearing.

The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Unlike the first appearance, the preliminary hearing is adversarial. The prosecutor relies on witnesses to present the prosecution's evidence, and the defendant may do the same. Both sides are allowed to question, or cross-examine, the opposing side's witnesses. After this hearing, the court may dismiss the charges if they are not supported by probable cause.

In some states, review by a Grand Jury is also required before a felony prosecution may continue; this review is not required for a misdemeanor prosecution. A grand jury is a group of private citizens summoned to review, in private, the prosecution's evidence. Generally, a grand jury consists of more jurors than a trial jury, which usually numbers twelve. In a grand jury proceeding, the prosecutor presents the evidence against the defendant to the grand jurors, and the grand jurors may ask questions of the prosecutor. The prosecutor then presents a proposed indictment, or a written accusation sworn to by the prosecutor. If a majority of the grand jury finds no probable cause for the prosecution, it returns a no bill, or a refusal of the indictment. If a majority finds probable cause, the grand jury returns a true bill, and prosecution continues.

Following a true-bill finding by a grand jury, the prosecution files the indictment with the trial court. Where no grand jury was required and only a preliminary hearing was held, the prosecution files an information, which is similar in form to an indictment but written and approved by the prosecutor alone.

After the indictment or information courts review criminal convictions for trial court errors. They rarely overturn verdicts on evidentiary bases. Even if an appeals court finds a trial court error, it will affirm the conviction if it feels the error did not affect the outcome of the case.

Generally, state court defendants appeal to a first court of appeals, then to the highest state court (usually the state supreme court), and then to the U.S. Supreme Court. In federal cases, defendants appeal to a U.S. court of appeals and then to the U.S. Supreme Court. The review of appeals after the first appeal is discretionary; that is, the court may decline to hear the case.

After exhausting all appeals, a defendant sentenced to incarceration may collaterally attack the conviction and sentence. This means the defendant attacks the conviction in an action other than an appeal. The most common method of collateral attack is submission of a petition for a writ of Habeas Corpus. This is a civil action against the warden of a prison, challenging the legality of the imprisonment. If the court approves the writ, the inmate must be set free.

A habeas corpus petition is not an appeal; courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. Generally, an inmate will ask for the writ in state court before filing in federal court.

All states also have a procedure in place to hear claims of newly discovered evidence. However, no relief is granted if the new evidence would not have made a difference in the verdict.

Some inmates are given early release from prison, or Parole. Parole is granted by the state or federal parole board or correctional board. It allows the inmate to finish the prison sentence in the community. The court requires a paroled defendant, or parolee, to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence.

In some states, if the conviction was for first-degree murder, the defendant may be sentenced to death. Where the sentence is death and the defendant has lost all appeals and collateral attacks, the defendant may ask the governor of the state for clemency. For federal crimes, the president retains the power of clemency. Clemency is forgiveness and mercy, and it usually comes in the form of a pardon or of a commutation of a sentence. A pardon releases the inmate from custody and restores his or her legal rights and privileges, such as voting and gun ownership. A commutation decreases or suspends an inmate's sentence. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate.

Cross-references

Criminal Procedure; Double Jeopardy.

The exclusionary rule deters police misconduct in searches. Without the admission of the evidence at trial, the case against the alleged criminal may be dismissed, and the officer's actions in gathering that evidence will have been wasted effort. The exclusionary rule also prohibits the use of evidence obtained in violation of other constitutional rights, such as statements of the accused that are elicited in violation of the right against self-incrimination.

The most important exception to the exclusionary rule is the good-faith exception. Essentially, the good-faith exception allows the use of evidence obtained in violation of a person's constitutional rights if the officer who obtained the evidence acted in a reasonable manner. If evidence is illegally seized and does not fall under an exception but is erroneously admitted at trial by the judge, a guilty verdict will be reversed on appeal if the prosecution cannot show Beyond a Reasonable Doubt that the evidence did not contribute to the conviction.

When officers have collected evidence pursuant to a search warrant, the burden is on the defendant to show that the warrant lacked probable cause or that other problems tainted the collection process. For a warrantless search, the prosecution bears the burden of proving that the search was reasonable. However, before evidence seized during a warrantless search will be excluded from trial, the defendant must prove that he or she had a reasonable expectation of privacy in the place that was searched. Homeowners, for example, enjoy a reasonable expectation of privacy in items that they keep inside their homes. However, houseguests might not have a similar expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Disputes over the application of the exclusionary rule are usually resolved at a pretrial proceeding called a "suppression hearing."

Arrest

The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. An officer also may make a warrantless arrest of persons who commit a crime in the officer's presence.

An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest can be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. These warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements that the arrestee makes after the arrest may be excluded from trial.

After the arrest, the police must follow certain guidelines during their investigations. For example, if the arrestee requests an attorney or expresses a wish to remain silent, the officers must honor the request and refrain from questioning the arrestee. However, the police may attempt to confirm that they have arrested the right person.

 They may do so by showing a victim a photo array that includes a picture of the suspect; by arranging a lineup of live persons at the police station, with the suspect included in the lineup; or by organizing a show-up, which is a personal showing of the arrestee to the victim shortly after commission of the crime.

Where photo arrays or lineups are used, the police must refrain from highlighting the arrestee. For example, if an arrestee is white, an officer may not show a witness a series of photographs in which all of the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.

Trial

At trial, a criminal defendant has a number of constitutional rights, including the Right to Counsel, the right to a public trial, the right to a trial by jury, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the Privilege against Self-Incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal.

There are exceptions and nuances to most of the procedural trial rights. Under the Sixth Amendment, if a defendant is indigent, or unable to afford an attorney, the court will appoint an attorney. This right applies only for felony charges and cases in which actual imprisonment may be imposed. Accordingly, an indigent who is not represented by counsel at trial may not be sentenced to incarceration, regardless of whether conviction of the offense warrants incarceration (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However, a defendant will not be appointed an attorney if the he or she is able to pay for a private one.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process through the end. An attorney must be present at the request of the defendant during such events as interrogation, lineup identifications after charges have been filed, preliminary hearings before the court, trial, and sentencing.

The Sixth Amendment right to counsel includes the mandate that a defendant's counsel must be effective and not incompetent. Attorneys must generally consult with their clients about trial strategy and tactics, in order to be effective and competent. However, a criminal defense attorney's failure to consult with a client before deciding against filing a post-conviction appeal does not necessarily render his or her assistance ineffective or incompetent. While the better practice would be for attorneys to always consult with their clients regarding the possibility of appeal, the Sixth Amendment only requires such consultation when there is reason to believe either (1) that any rational defendant would want to appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

A defendant is free to reject counsel and to proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics. Additionally, state courts of appeal may disregard a defendant's request to represent himself or herself on appeal without violating Sixth Amendment rights. Martinez v. Court of Appeals of California, Fourth Appellate Dist.,, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)

The Sixth Amendment right to a trial by jury does not guarantee a jury in all cases. The right generally applies only in "serious cases"—which are generally considered to be those in which conviction can result in incarceration for more than six months. When a jury trial is not guaranteed, the trial court judge will hear the case and make a decision.

In federal court, a jury verdict must be unanimous. This directive is not applicable to the states. In some states, a vote of nine out of twelve jurors is sufficient to convict or to acquit. States may even provide as few as six jurors. Six is the minimum, because juries should represent a cross section of the community. If a jury of six is used, the verdict must be unanimous.

Under the Confrontation Clause of the Sixth Amendment, a defendant has the right to cross-examine all prosecution witnesses at trial. In limited circumstances, the out-of-court statements made by a witness who is absent from court may be offered through the testimony of a third party. Known asHearsay statements, this type of evidence may be admitted if the statements were made under oath and subject to cross-examination by the defendant's attorney, and if the witness is unavailable to testify at trial despite the best efforts of the prosecution. However, a defendant's Sixth Amendment right to confront and to cross-examine the accuser in open court is violated when the prosecution introduces the incriminating hearsay statements of a non-testifying co-defendant in a joint trial, even if the defendant's name is redacted from the incriminating statements, because juries will often realize that the redacted portions are referring to the defendant. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

The Fifth Amendment privilege against self-incrimination extends from the moment of custody. A defendant need not make statements or testify at trial, and that right is absolute. However, with a sufficient showing of need by the prosecution, self-incrimination may come from sources other than the defendant's statements or testimony. For example, a court may force a defendant to appear before witnesses for identification; to provide handwriting or blood or voice or fingerprint samples; or to repeat certain words or gestures.

However, the mere fact that a defendant has pled guilty to a criminal act does not waive the privilege against self-incrimination during the sentencing phase. As a result, a defendant has the right to remain silent, during sentencing, about facts that bear upon the severity of the sentence, and the sentencing court may not draw an adverse inference from the defendant's silence. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

If the defendant does testify, he or she may be questioned by the prosecutor about previously inadmissible statements that contradict that testimony. Thus, the Fifth Amendment privilege against self-incrimination will not apply if the defendant has made statements that are contrary to testimony given on the witness stand. Nor does the Fifth Amendment prohibit a prosecutor from calling the jury's attention during closing arguments to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The Fifth Amendment prohibits the prosecution from commenting to the jury about the defendant's failure to testify at trial, but it does not prohibit the prosecution from making comments that impeach the defendant's credibility after her or she has testified. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 294 (2000).

The Compulsory Process Clause of the Sixth Amendment gives a defendant the right to obtain favorable witnesses. This means that the defendant has the same power as the prosecutor to subpoena witnesses. However, if the government, acting in Good Faith, deports a potential defense witness (i.e., makes the witness leave the jurisdiction), it does not violate compulsory process rights.

The Sixth Amendment grants the right to "an impartial jury of the State and district wherein the crime shall have been committed." This clause gives a defendant the right to question jurors for bias and prejudice. The right belongs to both the defense and the prosecution, and it is exercised in a proceeding called Voir Dire. In voir dire, both sides are allowed to question jurors and to reject a certain number of jurors, until the jury pool is complete. The rejection of jurors may not be based on race, sex, or national origin.

At trial, the prosecution has the burden of proving the defendant's guilt beyond a Reasonable Doubt. This level of belief is abstract and has been described in a number of ways. The best definition is that any doubt regarding the defendant's guilt should not be fanciful or conjured up to avoid delivering a verdict of guilty. This standard is reserved for criminal trials; it is a higher standard than "a preponderance of the evidence" and "clear and convincing evidence," the burdens of proof used in civil trials.

The vast majority of criminal cases are resolved with a plea of guilty before, or sometimes during, trial. Prosecutors may use their discretion to reduce charges in exchange for a guilty plea, in an arrangement known as a pleabargain. A plea of guilty cannot be revoked after a court has accepted it. Generally, it is appealable only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a pleabargain because it satisfies the criminal justice system's goal of encouraging people to accept responsibility for their actions, and because pleabargains avoid costly, time-consuming trials. A prosecutor also may agree to defer prosecution and to drop charges after a specified period if the defendant fulfills certain conditions. A defense attorney may seek a plea-bargain if the evidence against the defendant is overwhelming. Both sides are free to reject any plea-bargains and to proceed to trial.

If a defendant is acquitted of all criminal charges, the prosecution may not subsequently prosecute the defendant for the same act that produced those charges. This right is derived from the prohibition of double jeopardy that is found in the Fifth Amendment. In a jury trial, double jeopardy protection attaches when the jury is impaneled and sworn in. For bench trials, or cases presented to a judge only, double jeopardy protection begins when the first witness is sworn in. Under double jeopardy protection, the prosecution may not deliberately cause a mistrial if the trial is going poorly for the prosecution. However, if the jury cannot reach a verdict, and the court declares a mistrial, the defendant may be retried for the same offense.

Generally, a defendant may not face both federal and state prosecutions for the same offense. One exception to this general rule is that a defendant in state court may face charges in federal court for the same act with the permission of the attorney general, but only if the offense is within the jurisdiction of the federal court. For example, a conviction for driving while intoxicated raises no federal concerns; federal laws do not address that offense. Thus, the attorney general may not authorize the federal prosecution of a defendant who has been acquitted in state court of driving while intoxicated. The acquitted defendant may, however, face a civil lawsuit for damages, because civil actions do not put a person "in jeopardy of life or limb," and therefore double jeopardy does not apply to them (U.S. Const. amend. V, cl. 2). Similarly, the Double Jeopardy Clause is not violated when a defendant faces both criminal and administrative proceedings arising out of a single wrongful act.Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).

Postconviction

Sentencing After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant's perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and to remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility ofParole, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, Forfeiture of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of Probation.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate property of certain criminal defendants. Under federal law, persons who have been convicted of controlled-substance violations or Racketeering schemes may be forced to relinquish much of theirPersonal Property, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This type of sentence is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person who has been convicted of trespassing to the same punishment as a person who has been convicted of Homicide.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering Capital Punishment, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, inStanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Habeas Corpus Petitions After an incarcerated defendant has exhausted all appeals without success, he or she may file a writ of Habeas Corpus. This is a civil suit against the warden of the prison (in his or her professional capacity), challenging the constitutionality of the incarceration. There is no right to the assistance of an attorney for habeas corpus petitions.

A habeas corpus petition is not another appeal. The only basis for a writ of habeas corpus is the deprivation of a constitutional right. For example, an inmate may claim that he or she was denied the assistance of counsel guaranteed by the Sixth Amendment, because the defense attorney was incompetent. But defendants generally may not rely on habeas corpus proceedings to challenge a federal sentence on the ground that the prior state convictions upon which the federal sentence was based had been unconstitutionally obtained. Daniels v. United States, 5532 U.S. 394, 121 S.Ct. 1567, 149 L. Ed. 2d 608 (2001).

Parole If an inmate is released on parole and then violates the terms of the parole, he or she must attend a hearing to determine whether parole will be revoked. The parolee may be entitled to the assistance of counsel at the revocation hearing. This entitlement will depend on a number of factors, including whether the parolee denies committing the alleged acts, as well as the rules of the parole board. If the parolee can afford a private attorney, he or she is free to hire one; there is no bar to representation in parolerevocation hearings.

Inmates who seek parole often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related Executive Branch departments are under no obligation to give mitigating evidence any weight, and may typically reject an inmate's request for parole without providing any reason for doing so. Accordingly, the federal Bureau of Prisons has the authority to adopt regulations that categorically deny early-release incentive to prisoners whose current offense was a felony attended by "the carrying, possession, or use of a firearm." Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L. Ed. 2d 635 (2001).

Further readings

Arkin, Marc M. 1992. "Rethinking the Constitutional Right to a Criminal Appeal." University of California at Los Angeles Law Review 39.

Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993. Criminal Procedure and the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, Minn.: West.

PMBR. 1993. "Criminal Procedure." Multistate Workbook. vol. 2. Multistate Legal Studies.