Nicole Valera – Criminal Defense

Fighting the system, one case at a time…

Law & Order? I don’t think so – Prosecutorial Misconduct in California


My last post criticized the LA Times – this post is going to praise them.  An article about prosecutorial misconduct! As criminal defense trial lawyers, we know it happens – we hear about it when it happens to our friends and colleagues, and we see it for ourselves.  I have often been asked  how I can live with myself doing the job that I do –  Well this article highlights one of the most important reasons I am a criminal defense attorney:  to defend the public against people like this.  

Now don’t get me wrong – I have had the pleasure of going up against many fine and ethical prosecutors.  In my personal experience, most prosecutors have an excellent standard of ethics.  It’s the ones who you know are playing hide the ball – that are pushing you and your client towards trial with the knowledge that they can’t prove their case beyond a reasonable doubt, when really, they should either be dismissing or offering you a really REALLY good deal.  Now I know that behavior may not be defined as prosecutorial misconduct by an appellate court, but I happen to think that it’s shady.  Sometimes our opinions may differ – I may think they have a weak case, they may look at it differently – but that’s not the situation I’m talking about.  It the situations where they KNOW they haven’t been able to speak to a key witness, or where they spring a suggestive six pack color lineup on you during trial where identification is the defense (that happened to me in my first trial EVER) – those are the situations I’m talking about.

What was most disturbing to me about the article, wasn’t that it happens- but that reprimand by the State Bar is so infrequent.  6 out of the 707 cases of prosecutorial misconduct over the past 12 years have been disciplined.  Only 6.  Keep in mind that these are just the cases that are reported – if a court finds the misconduct to be harmless, they are not required to forward this finding to the State Bar.  They should be.

After reading this article, I hope the general public starts to understand how important a criminal defense attorneys job is.  I feel like I’m always whining about how under appreciated we are, but maybe there’s a good reason for it.  I had a prosecutor friend say to me the other day, “You should come over to the side of Law & Order.”  And my response was, “I already am!”

October 5, 2010 Posted by | General Thoughts, Hmm...inneresting..., The Latest | , , , , , , , , , , , , , , | Leave a comment

Less is More


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Sometimes being a good criminal defense lawyer means saying less is more. That’s probably the best lesson I ever learned when I first started out, and it has carried me to many victories.  I think the pressure to speak and ask questions is high, especially when 1) you don’t think your client trusts you, and/or 2) Your client is paying you a lot of money and you feel like you have to sing for your supper.

Yesterday I won a juvenile court adjudication/trial for a marijuana possession charge.  The police department had put up a fight when I requested the police report (as I documented on my private Facebook page a couple of days ago), so I just sent out a subpoena and they faxed the report over. I can honestly say I have NEVER had to subpoena an initial report.  EVER.  I guess there’s a first time for everything.

Anyway, when I got the report I was pleasantly surprised.  I don’t know if this is just the cynical criminal defense attorney in me, but maybe they didn’t want to send me the report because they realized how weak it is.  Anyway, I ended up doing the trial, even though my client was offered a diversion.  He felt very strongly about standing up for his principle and having his day in court.  I can’t agree more.  But sometimes you have to do a risk analysis, no matter how strong your principle is.  Even though I felt the case to be weak the diversion was tempting.

I have to say that the judge/referee in this case was extremely fair.  One thing you learn is how to size up your bench officer, but this is the first time I’d been in front of him and I didn’t know anyone else who had.  Even though I had a solid defense I proceeded with caution.  Although it was prudent, it wasn’t needed.  He could tell right away where the big hole was in the case, I asked 2 questions to clarify, and he dismissed it upon my 1118.1 motion.

So again, less is more.

September 23, 2010 Posted by | Juvenile Criminal Defense, The Latest, Wins | , , , , , , , , , , , | Leave a comment

War Veterans and The Trenches of Criminal Defense


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Yesterday I finally resolved a very emotionally difficult and legally complicated case. As a criminal defense attorney you try to maintain a professional distance as much as you can, but I do believe that any good criminal defense attorney should put at least a little emotional skin in the game. No one wants a robot for a lawyer.

Anyway, my client was an Iraqi war vet and had completed 2 tours of duty. He had some difficulty transitioning back into normal society and ultimately picked up a serious felony. I had been frustrated with this case for many reasons – the case had dragged on nearly a year – some of it due to my work up of the case and some of it not.

This client was a young vet, mid 20’s. This is not the first time I have represented a young client (I represent minors as young as 12), nor is it the first time I’ve represented a war veteran. However most of the vets I have represented have been from the Vietnam War. A majority of them have been homeless and suffering from substance abuse problems. I’ve had to work with the VA on numerous occasions.

Deep down inside I was afraid this client could’ve turned out like many of my Vietnam War vet clients.

At first blush, that seemed unlikely to happen – my client was young, physically healthy, enrolled in school, had many friends and lots of family. He was not going to end up one of my tattered war vet clients that had been marched into court in handcuffs and jail jumpsuits. But I always wondered what those vets had been like when they were young, just returning from war. What did they do? How did they live? Did they have loved ones to come home to? Did they ever know they would not be able to leave the war behind? Or while in the trenches where some politician had sent them, did they harbor that fear of what their life would become if they made it out alive?

With the President‘s announcement that 50,000 troops will be coming home, the legislature needs to figure out a way to deal with the new generation of vets that may become involved with the criminal justice system. Many will come home with depression, substance abuse problems, and other types of psychological disorders. In California there is no evidence or penal code section that specifically recognizes the admission of Post Traumatic Stress Disorder during the guilt phase. There are some useful sections for sentencing purposes but I do believe criminal defense attorneys need a tool for trial. My research turned up similarities to the battered women’s syndrome – perhaps we could use that as a model. It is a very real problem that needs a very real solution.

In the meantime, I have hope for my client. He is a good man with hopes and dreams and despite this setback, I think he will make a wonderful life for himself. We were able to resolve this case in a very just manner and I am thankful for that. I had to fight hard for him, but really, it was the least I could do.

August 26, 2010 Posted by | The Latest, THIS is why it's worth it, Wins | , , , , , , , , , , , , , , , | Leave a comment

   

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