Recent Articles by Charles Johnston Law

Children to be Sentenced as Children

Winning the Unwinnable

Charles Johnston Receives Prestigious Award

John Lennon

Sentences for Drug Trafficking Offenses

State and federal governments spent a combined $80 billion on incarceration in 2010 alone.  State and federal prison and detention budgets have been increasing steadily, critically short changing other areas of public safety. Nearly 40 percent of federal prisoners and over 60 percent of state prisoners reoffend or violate the terms of their community supervision within three years after release. It is not unreasonable to believe that this unreasonably high recidivism rate would be reduced if more resources were spent on re-entry programming.

In light of the fact that almost half of all federal inmates are serving time for drug-related crimes  (and this figure is probably consistent in state courts as well), the Department of Justice is supporting a proposal by the Federal Sentencing Commission to revise the Drug Quantity Table. In the federal system, a person’s length in prison is determined by the quantity of drugs he or she either possesses or traffics. The Sentencing Commission is proposing a modest change in the offense levels associated with quantities. The Department of Justice agrees with the proposed amendment. It would have the effect of reducing the Guideline penalties for drug trafficking offenses while keeping the Guidelines consistent with the goal of ensuring higher penalties for drug offenders involved in violence, or who are career criminals, or who use weapons in their offenses.

While we should be applauding this modest reduction, it is hoped that there will be continued reductions in the future. The Sentencing Commission, in determining the Drug Quantity Table, initially chose drug amounts that corresponded with lengths of sentences that they thought were appropriate – in other words, they were totally arbitrary. As stated earlier, the result has been to imprison individuals for extended sentences that only result in overcrowding our prisons and excessive costs to the taxpayers.

We need to continue to apply pressure to the Department of Justice and the Sentencing Commission to reserve the most severe penalties for the serious, violent drug traffickers, reducing penalties for other drug offenses, resulting in better promotion of public safety, deterrence, and rehabilitation, while saving billions of dollars and strengthening communities.

Perception is Important

Within moments of making the biggest play of his young professional career, preserving a hard-fought and well-deserved win for the Seattle Seahawks and sending them to the Super Bowl – Richard Sherman is caught on camera making a choke sign and then during post-game interviews refers to a San Francisco 49er receiver as “sorry” and “mediocre at best” and basically rips the 49ers quarterback for throwing the ball to the man he was covering. CBS not knowing where the first interview was heading quickly terminated the interview.

Sherman’s comments have triggered a largely hate reaction on all forms of social media and he has been sharply criticized on mainstream media. He has been called a thug with no class, and some have gone so far as to say that he has ruined sports. I admit that I am “old school” and I do not like trash talking. I was always taught to let your play do your talking for you. However, this reaction and the criticism that Sherman is experiencing is way out of line.

First, the comments were made within moments of the end of the game while Sherman was still clearly affected by the emotion and the importance of his play and the game. Second, he does not curse, he does not say anything about the 49er receiver’s personal life, he does not call the receiver a bad person, a bad son, or a bad father – he simply calls the 49er receiver a “mediocre” football player. I personally do not believe that anyone who plays in the NFL is a mediocre player, but maybe if I played at that level I would recognize mediocre football players. Apparently people who are making these comments are not aware that the 49er receiver had made, at least in Sherman’s mind, the same comments about Sherman prior to the game. More importantly, the people making these remarks about Sherman do not know anything about him.

Richard Sherman grew up in Watts until he was 14 years old, then the family moved to the “better” area of Compton. Richard Sherman’s father drives a garbage truck, to this day getting up at 4:00 every morning for work. His mother works with disabled children for the County of Los Angeles. Although they enjoy their son’s success in sports, they instilled in Richard the importance of an education. Richard finished second in his class academically in high school with a 4.1 GPA. He attended and graduated from Stanford with a degree in communications and was an Academic All-American football player.

Upon signing a pro contract, he founded the Richard Sherman Family Foundation, which he appropriately named “Blanket Coverage”, whose goal is to ensure that as many children as possible are provided with proper school supplies and adequate clothing. Through his foundation, Sherman has worked with children’s hospitals, the Salvation Army, as well as many other local, charitable institutions.

Yet people want to judge Sherman for comments made while he was clearly still in the emotional context of the game and really added up to nothing more than his opinion as to the abilities of a 49er receiver. Something that is done every day by the so-called experts on talk radio, ESPN, and the pre-game shows on CBS and FOX.

It seems that the reaction to Sherman’s comments say more about us than they say about him. How does that tie into what I do for a living? That “us” are the people who sit on the juries who decide the fate of you or your loved ones who are charged with committing crimes. Think about it!

In the year 1603, Sir Walter Raleigh…

CONFRONTATION CLAUSE CONFUSION

In 1603, the Crown in England charged Sir Walter Raleigh with high treason for allegedly plotting to kill King James I. A co-conspirator was interrogated and signed a sworn confession, implicating Sir Walter Raleigh and the plot. During trial, the King used this Crown procured testimony of the co-conspirator against Sir Walter Raleigh. Sir Walter Raleigh demanded that the co-conspirator be brought before the court so Sir Walter Raleigh might interrogate him face to face. The judges refused not only to bring the co-conspirator to court to testify, but also to use a subsequent letter signed by the co-conspirator exonerating Sir Walter Raleigh. Sir Walter Raleigh was convicted of treason and sentenced to be “hanged, drawn and quartered”.

Many scholars cite the Sir Walter Raleigh trial as the birth of the right of confrontation in American courts. The founders were concerned about the use of out of court statements of witnesses being used in court for convictions. The Sixth Amendment to our United States Constitution states that an accused has a right to be confronted with the witnesses against him. Sounds simple – doesn’t it?

Well, the U.S. Supreme Court, in the case of Crawford vs. Washington, held that only “testimonial” out of court statements are barred from the confrontation clause – that is, that a criminal court can admit “non-testimonial” hearsay at will against defendants without violating the Sixth Amendment. Crawford was a case from our state and was decided in 2004. Since then, the U.S. Supreme Court, as well as many courts across the nation, have attempted to define “testimonial”. In doing so, courts have chipped away at an accused’s rights as initially intended under the Sixth Amendment.

Tell your attorney everything

GENERAL ADVICE TO THOSE ACCUSED OF CRIMES, WHO MEET WITH THEIR ATTORNEYS

I have been a criminal defense attorney for over 34 years. It fails to amaze me that my clients rarely provide me with all of the information. Apparently, they believe that they need only tell me what they think is important, or what they believe I need to know. Although I go into great lengths to inform them that it is vitally important that I know everything about their case in order for me to represent them as well as I can – some withhold information.

Your attorney is educated and trained to give you the best advice possible. That cannot be done unless you advise them of everything they are asking for. Providing your attorney with all of the information requested allows them to ask for the information you are entitled to receive from the prosecutor’s office and law enforcement agencies. More importantly, it allows them to prepare to respond to evidence that hurts your defense. The last thing a defense attorney wants is to be in trial and to hear something for the first time and not being totally prepared to respond to it because you did not provide that information. Trust your attorney.

A new phenomenon that I have observed is what I call, for the lack of a better term, “Facebook mania”. It seems that people with Facebook accounts will post anything and everything on their accounts. Many, many, many times, they post information that is discriminatory or in some way hurts their defense. It is no surprise that detectives, either on their own or upon the instruction of prosecuting attorneys, review very carefully the Facebook pages of accused individuals and potential witnesses in trials. The last thing a defense attorney wants to hear is a prosecutor calling him or her up to advise they are sending over newly discovered evidence which consists of Facebook pages from the client’s account. It is really smart to think through everything that you want to post on your Facebook because the posting is permanent! This is even more true if you have engaged in criminal behavior or are accused of criminal behavior.

Social Media Do’s and Don’ts

FaceBook, Twitter, and all the other social networking sites can play a significant role in a criminal investigation. Surprisingly, many people don’t seem to consider that the material they publish on social media is open and available to a variety of people. This open book into our personal lives can have consequences, and in particular social media can provide investigators a treasure of information to be used against you in a criminal defense case.