Death Penalty & Abortion: Fast, Slow or Denial of Service Fair?

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The Federal Appeals Court, for the 9th Circuit upheld California’s death penalty statute. This appeal was undertaken because a federal Judge (Cormac Carney a former UCLA football player and Republican Presidential appointee) found the California death penalty statute un-constitutional due to the long wait between sentence to death and the eventual carrying out of the sentence. The appeal was mainly on technical grounds and did not answer the proverbial $64,000 question of is the death penalty unconstitutional?

The trial court found that death row inmates have been transformed from one of death, to one of grave uncertainty and torture. The Appellate court fund this had no basis in legal precedent or logic. The trial court found that the death penalty system was arbitrary and plagued by delays. Does the delay in carrying out a death sentence not serve retribution for society or provide a deterrent effect on society? The appellate panel suggested that the California Supreme Court rule on the issue of delay in imposition of a death sentence undermines the deterrent effect on society.

Meanwhile on the death penalty front of imposition of the ultimate sentence, the State of California has come up with one chemical to impose the sentence. This is in contrast to the old electric chair (“fire up old sparky”) from the movie “The Green Mile” and/or the cocktail of chemicals that were previously used. In light of the delays based on funding, race, court congestion, etc. Should we be proceeding down this path at all? Should we wait for the judiciary to further clarify the death penalty delays before we arrive at the imposition of sentence? Is the death penalty meted out along racial and/or economic lines?

The United States Supreme court will hear arguments on a TX anti-abortion statute this term. The statute (if implemented) would close 75% of the abortion clinics in the State. The statute requires all doctors at the clinics to have hospital privileges at nearby hospitals and meet the same standards at those imposed on outpatient surgical centers. The question here is the rationale and interpretation of these statutes. Do they serve a legitimate health concern, or, are they prohibiting abortion under the guise of health regulations?

In 1992, the court found that states may regulate abortion as long as they did not place an “undue burden” on women seeking to end a pregnancy. Is this statute this type of burden? The abortion clinics (if the statute is fully implemented) will foreclose abortion clinics outside of the five major cities inTX. Is this the type of backdoor social engineering in the guise of religion that we want? Four major medical groups including the American Medical Association and the American college of Obstetricians and Gynecologists have opined that the TXlaw could do nothing to protect the health and safety of women. Taking this case, the court split on a 5-4 vote with three of the four justices dissenting being very conservative (Scalia, Thomas, Alioto and Kennedy). This will again provide the court with an opportunity to further clarify or eliminate the right to abortion and do away with Roe v. Wade.

In the continuing evolution of society, the judiciary is faced with the right to life versus the taking of it, and the right to access to fundamental rights of those who have broken no law.

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Ultimate Sacrifice – Should the Government Give or Take

The United States Supreme Court will hear a case which presents the central issue of “can the government use excessive force to kill people coming into the US albeit illegally?”

If the court hears this case it will decide if non-citizens are entitled to constitutional protections against unreasonable force stop at the U.S. border or extend to non-citizens on foreign soil controlled by U.S. authorities. Since 2006, US border agents have shot and killed 8 Mexicans. Prior lawsuits in the US have gone nowhere, while outrage in Mexico has increased. The US Border Patrol had some of these incidents arise from rock throwing. They argued that rocks can be deadly. The Border Patrol has now changed its policy and now has its agents move out of range of the rocks. Seems somewhat better and more humane as opposed to a rifle shot back at the rock throwers! Amazingly, the FBI cleared the agent of any wrongdoing. The court case arose from an incident in which the decedent (age 15) played a game and ran up to the border fence and touched it and then ran back toward Mexico. The border agent grabbed one of the youths and was then pelted with rocks which led to the fatal shooting. The teenager had been arrested twice for smuggling people across the border but released him to Mexico because he was a juvenile.

Other cases that are currently pending involve the shooting by a border agent through the border fence causing the death of a 16 year old. Can a bullet and shooting victim be protected by the Constitution if the person is struck on US soil, but have no culpability if strikes a person in Mexico? This does not make a great deal of sense. If the US controls an area, should people in that area be entitled to protection from violent actions of the US?

Litigation is pending where the Cal Fire director claims he was ordered not to give grieving families of pilots who had died in the line of duty that they could recover insurance benefits. The lawsuit claims that the head of the agency and the number 2 of the agency knew that state law requires Cal Fire to pay death benefits when a contracted pilot is killed in the line of duty. The State has attempted to get the Federal Government to pay the benefits because some of the pilots may have been contracted with the Federal Government and not in State owned planes. However, the lines are not crystal clear. Both agencies fight fires jointly. Should this distinction really be controlling?

Should the emphasis be on the families of the pilots who made the ultimate sacrifice for the public? Shouldn’t payment be made to the families on a priority basis with a right of reimbursement to be sought against the non-paying governmental entity? Cannot this be resolved through mediation or arbitration? Why are the innocent families being made to suffer while the squabbling between two entities continues? We have wives, children, and parents suffering from the death. Why have this compounded by governmental inertia?

What say you?

Repeat DUI Offenders: Jail ‘em, Treat ‘em, or . . .

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As the old police saying goes about arresting people: “take no sh*t, cut no slack, just hook ’em, book ’em and don’t look back!” The question becomes what should our attitude be toward repeat DUI offenders? Do we just react with the police attitude? Do we try to use a multi-faceted approach (psychological, jail, random testing, etc.)? Do we use the Barretta approach of don’t do the crime if you cannot do the time?

Monterey County is launching a DUI treatment court for repeat offenders. The program is akin to the drug treatment court which focuses on the defendant willingness to address their crime and addiction issues. The program will coordinate with the County’s Probation Department, Behavioral Health Services, the prosecutor’s office, the public defender’s office and the Sheriff’s Office. Monterey county is only one of nine counties in the state using this program. The program requires substance abuse treatment in connection with accountability, education, court monitoring, formal supervision as well as frequent and random alcohol/drug testing, psychological therapy, family counseling and social skills training. The program begins with the second or third conviction.

Seventy five percent of adult criminal drug court graduates remain arrest free for at least two years after leaving the program according to the National Association of Drug Court Professionals. The DUI court hopes for the same or similar results. The DUI court is only funded for one year. But as the old Chinese saying goes, “the journey of a thousand miles begins with one step.” Perhaps this is the proverbial first step to get people out of the criminal justice system.

If jail and fines alone do not achieve the desire result (of not drinking and driving again), should we as a society care about what other options are available to keep offenders from becoming repeat offenders?  Which options should be used to help these people (assuming they want help). Should we make the repeat offenders have mandatory participation in a program or let them make their own decisions about their lives?

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Arbitrate This! Big Business is Using You!


We all sign contracts at various times and unfortunately many do not read all the fine print. Among them are employment applications, credit card applications, etc. Big businesses, who are concerned about their bottom line and not yours, increasingly have inserted into their contracts mandatory arbitration clauses. What this means to you as a consumer is that your access to the court system is limited, if not cut off entirely should you have a dispute with the business. The major purpose of these clauses is to limit consumer access to class action lawsuits by allowing for individual arbitrations. Class actions are increasingly the only tool individuals have to fight illegal or deceitful business practices.  Among class actions that have been recently dismissed are claims against Time Warner Cable for mysterious charges on their bills, employee actions against Taco Bell for denied promotions based on race and also for racial minorities being provided worse shifts than others and subject to degrading comments.

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Some judges have called the class actions bans as a “get out of jail free card” for big business. The bans on class actions have prevented class actions against predatory lenders, wage thieves and discriminatory policies in employment and housing. A continuation of this would allow big business to opt out of the legal system and continue to misbehave without penalty. The leaders of these bans were credit card companies. Once class actions were banned, many individuals gave up their claims entirely. Law enforcement officials have decried this claiming that business can continue to operate with impunity. The odds favoring big business are clear: roughly two thirds of consumers who contested credit card fraud, fees or costly loans received no monetary awards.

The genesis of this trend has been the 1925 Federal Arbitration Act. The United States Supreme Court has been very vocal in its support for big business and its agreement with arbitration against consumers. Now Chief Justice John Roberts, who was a corporate lawyer for the big business before joining the Supreme Court, got the most recent case. He felt that courts should enforce the arbitration agreement according to their terms. However, he seemed to quite conveniently ignore that most of these contracts are ones of adhesion. A contract of adhesion occurs when the parties are of unequal bargaining power and courts have intervened to challenge these agreements. The Court has stated that class actions can be outlawed even if the class action was the only realistic way to bring a case. Justice Scalia (a very conservative member of the court) has stated that antitrust laws do not guarantee an affordable procedural path to the vindication of every claim. A losing consumer in a case said that he has created a new cocktail called the Scalia which he characterized as “bitter and difficult to swallow”.

The questions presented are: do we want business to have the “get out of jail free card”. Do we want to modify the current system, or go back to the beginning and review what needs to be done. Shakespeare once said: “absolute power corrupts absolutely.” Do we want to condone this failure to accept responsibility from business?

On the potentially pro-consumer front is that expedited jury trials will be mandatory in cases valued at less than $25,000. The insurance industry fought this proposal. One need not wonder where the “good hands of Allstate” stood on this. I am sure they extended the special middle finger to consumer. Kudos to the legislature and the Governor for ignoring them. Demurrers (pleadings that

challenge the sufficiency of a pleading) will be streamlined to get cases resolved faster through the court system. The legislature is authorizing a standardized medical records request form that can be submitted to any health care provider for the purpose of providing a patient’s medical records. Thumbs up to the legislature for trying to simplify litigation and reduce its associated costs.