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Russell S. Babcock
Attorney at Law - Certified Specialist, Criminal Law

1901 First Avenue, Suite 138 San Diego CA 92101

Archive for the ‘Thoughts’ Category

Of Bridges, Police, And Criminal Defense Attorneys

Saturday, July 25th, 2015

 

I just got back from a vacation.  Yes, a vacation for me is taking three days off, driving 500 miles to go fishing, worrying about my clients, putting out a fishing line, catching no fish, worrying more about my clients, and coming home wondering why I didn’t stay away longer.  As I drove home, I drove onto several stretches of freeway that were named after fallen police officers. 

I respect police officers who have died in the line of duty.  And unlike Donald Trump who believes people who are captured are not heroes, most of these fallen police officers probably qualify for hero status.  But what struck me most, don’t laugh please, is that no stretches of highway were named after criminal defense attorneys. 

As Clarence Darrow once put it  “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.”  Maybe why that is why there are no bridges, freeways. or highways named after criminal defense attorneys.

Is what we do any less than police officers?  Sacrificing family, finances, and any semblance of a normal life to defend those who society cannot stand?  Yes, maybe we have not driven off of highway overpasses or been shot in the line of duty, but we have suffered heart attacks, stress, and estrangement from our loved ones  because of our commitment to justice.

I propose that we start naming our highways after criminal defense attorneys as well.  We could start with the Clarence Darrow Freeway after the person who essentially put criminal defense on the map.

Even though she is  very much alive, I propose we name a bridge after Judy Clark.  She has, at much personal sacrifice, defended the uni-bomber and that lady named Susan Smith. who most of us have already forgotten, who drove her children into a lake causing them to drown.  Even though she “lost” in the defense of the surviving Boston Bomber, she had the courage to continue with a vigorous defense despite bomb threats of her own and much personal scorn.  The bridge should be an attractive one: if not for the fact that it already has a name, I would recommend that the Golden Gate Bridge be named after her.

Finally, another crusader against the death penalty was my colleague, Michael Millman.  He personally observed me argue a death penalty case to the California Supreme Court and he took the San Francisco Trolley to do it.  One day I was wondering why he hadn’t replied to one of my emails (not like him) and less than a month later he tragically died from cancer.  I think he deserves an important freeway named after him. I recommend the one in Marin County that passes San Quentin to remind the people of California that not only here lies a house of execution but also the memory of a man who fought for the lives of the condemned.

Is it too much to ask to have a few roads and bridges named after defense attorneys?  I am not really quite sure how to go about it:  would I call the Department of Public Works or ask that the matter be placed on a ballet?

Finally, I made one mistake in this blog.  I said that NO bridges or highways have been named after criminal defense attorneys.  Somewhere there must be one named after Abraham Lincoln though I don’t know of one in my city.  Sadly, while almost everyone remembers him as a President, few remember that he was also a criminal defense attorney.

 

Federal Criminal Sentencing: The Disparity Still Exists

Monday, June 22nd, 2015

An unfortunate reality of practicing federal criminal law in San Diego is that one of the factors that still influences a defendant’s sentence the most is which District Court Judge is assigned to the case. Unlike state court which permits a defendant to disqualify one judge, the federal judge assigned to the case will remain assigned to the case for better or for worse.

The cases where unequal judicial philosophy creates the most disparities of sentencing is in drug cases. I have seen, for example, defendants with the same quantity of methamphetamine and who have no criminal records receive a sixteen year sentence in one courtroom and four years in another. The reason for this is despite federal decisions that allow the court to find “minor role” for mere couriers or drug mules, a couple of District Court judges generally don’t give a minor role reduction in these circumstances.

This should not happening. Waiting for the assignment of the District Court Judge has become a kind of macabre lotto where more important than the facts of the case is the judicial philosophy of the judge assigned to the case.

And in the Southern District (San Diego and El Centro) defendants have it comparatively good. The United States Attorney in San Diego has several fast track and “combination of circumstances” programs, which makes most drug sentences in this District much lower than lets say in Montana or South Dakota.

We have one set of federal drug laws for all states. And there is one Attorney General, and ultimately one President running the show. The factors that should matter in calculating a sentence should be: background of offender, presence or absence of criminal record, nature of the offense, attitude of the defendant and prospects for rehabilitation and not who is the judge assigned to the case, and the area that offense occurred.
The United States Sentencing Guidelines and the Sentencing Reform Acto of 1984 may have been a good idea, but they are an abject failure. It is time to go back to the drawing board. And it is also time to realize that judges should uniformly apply the law so that it no longer matters so much the name of the judge who is assigned to the matter. After all isn’t one of our core legal principles, “equal justice under the law.?”

The Morning Before A Federal Criminal Sentencing

Monday, March 23rd, 2015

This blog is probably not what you think it will be.

6:00 AM  , San Diego California……

As I go over my notes, my black cat is never far from my side.  He knows the ritual by now…….I get up and stare out the window.  And then I go out to the Jacuzzi for a half an hour.  And I think and mentally prepare.

In three hours, I will be standing in my suit at the podium in front of the District Court Judge.  I would like to think that my words will make a difference.  I am often told by the judges that they do.  More than just the law, I want to feel who the client really is and to be able to share that with the court– the good mother, wife, and  good person she is who simply made one bad mistake because of severe  financial stress.

The federal sentencing law says that the court must take into consideration not only the Guideline Table, but “the nature and characteristics of the offender.”  When I watch other criminal attorneys in the courtroom as I wait for my turn to do a sentencing,  I see that many of them forget that.  They talk only about numbers and sentencing ranges and forget that ultimately the court will be passing judgment on a human being, a person no more perfect or imperfect than themselves.

I admire those of my colleagues who take their work as seriously as I do.  It seems that the common denominator in those criminal attorneys who have been around as long as I have is maintaining good health, having a strong family base, and to celebrate  a spiritual force  in one form or another, a form to me that I call God.

Yes, those of us who are committed defense attorneys try to stay professional and objective, but we do feel and we do care for our clients.  In fact, we live our cases with our clients and dream about them at night.

This blog is not material for a law journal or treatise, but is the way it  in the final hours before arguing at sentencing in the courtroom.  Judges judging other human beings and me there to do my best to make sure the most fair and compassionate decision gets made.

6:20 a.m.

Time to shower and get in my suit .  But first, I will review  my notes again and” get in the zone.”   How her two daughters and son miss her!– she is a young Hispanic woman who must be both mom and dad. She has already paid so much for her misstep.

I will have succeeded today if this judge realizes that my client has already been punished more than any punishment that he could ever give her.  And also if he realizes before sentencing her that even the best of us are capable of making a really bad mistake.  It is the nature of being human.

 

11:00 a.m.

It is over.   There are rarely happy days in the court room, but today went truly well.  The government wanted 70 months and they only got 21.  With time served she will be out in less than nine months.

The judge was right when he said that an education would help her.  But how will she be able to get in Mexicali being a single mother of three?  At least, she will be with her children and she ow gets a chance to get back on the right path again.  Many of the U.S. Attorneys (prosecutors) are cynical.  But very few of my clients, thankfully, come back a second time.

The wisdom of the older judge in knowing that a human life couldn’t be measured by numbers.  To this judge, it made a difference that my client had never been in trouble before and has raised three children on her own under very difficult circumstances.

The shocked look of my client and the misty eyes of her boyfriend were a great reward for me.   But now, it is time to move on to the next sentencing at 1:30 p.m.

Another Monday in the life of a criminal defense attorney of thirty years.

 

 

 

 

 

Federal Drug Border Arrests: Guilty Until Proven Innocent

Sunday, February 15th, 2015

Every week at the San Ysidro-Tijuana border, the busiest border in the world, agents seize many kilos of methamphetamine, cocaine, and heroin that is hidden in cars. The majority of the drivers know of the presence of the contraband. They are usually paid by other individuals a few hundred to a few thousand dollars to attempt to cross hundreds of thousands of dollars of drugs into the United States.

There is no way to measure how many drivers are guilty and those, the “blind mules” who are duped into making the crossing. A safe assumption is the vast majority of drivers are guilty. But what about those who aren’t?

Federal law and federal agents are harsh on all those who cross drugs into the United States regardless of if the driver has knowledge. First, a driver is relentlessly interrogated usually by a team of two agents who espouse the party line that the only way a person can have drugs in their car is if they made an agreement with someone to transport the drugs.

Next, the individual is charged with offenses that usually carry a mandatory minimum of ten years imprisonment. Many of these individuals can’t even qualify for bail because with such offenses there is a “presumption” of no-bail because of the seriousness of the charge.

And for the innocent individual, they are faced with a dilemma. Should they accept a plea bargain of three or four years or face a sentence of ten years or more if the get convicted. Juries hate drugs and these kinds of offenses are very hard to defend. How can someone prove their innocence when they often don’t know how drugs were planted in their car?

The prosecutors arguments are often clever and very self-serving. The person was nervous when confronted at the border. Who wouldn’t be nervous when six agents force someone out of the car and accuse them of being a drug smuggler? The person was cold, overly friendly, too cooperative, not cooperative–any way you look at it “ guilty unless proven innocent.”

Even the federal government now recognizes that blind mules exist. There are the documented cases of the El Paso teachers who unknowingly carried packages in their trunks, the bus drivers and couriers in Tijuana, those who had magnetic packages adhered to the bottom of their vehicles. The prosecutors in San Diego even make a blanket disclosure now of the dozens of cases involving blind mules, many of which are still under investigation.

Congress is correct in finding the we have a drug problem in the United States. But all of the emphasis has been placed on seizure of drugs and prosecution of almost every driver who has drugs in a vehicle. But what about the truly innocent individual who is the true victim in this game of greed and deception? There used to be a saying that the presumption of innocence makes it more important than nine guilty individuals go free than one innocent person convicted. Sadly, this presumption is not applied in border drug smuggling cases.

Unfortunately, there is no way to know how many innocent people are sitting in federal jails because they took their car to the wrong mechanic or loaned it to the wrong friend. Based on my work, I believe there must be hundreds of innocent people incarcerated for drug crimes they did not commit. And no one but the defendants, their loved ones, and defense attorneys seem to care. Certainly not the federal government.

The government has a legitimate interest in prosecuting drug smugglers and attempting to shut off the flow of drugs into this country. But at the border, it should still be innocent unless proven guilty and not the reverse.

Federal Criminal Law and A Culture of Informants

Thursday, February 12th, 2015

When I used to be a prosecutor, I was trained to distrust informants and co-defendants. Who has a stronger motive to lie than a person who is charged with a crime and who has no defense? The jails are full of informants who are constantly listening to other inmates so that they can “snitch” on them and receive a reduced sentence.

To those who are not part of the criminal law culture, there is something offensive about individuals informing on others. Indeed, the country of Cuba has an organization called the Committee for a Democratic Revolution or “CDR.” The organization is made up of captains who control each neighborhood and who report any suspicious activities so someone higher up the chain. North Korea also employs a system where children are raised to even denounce their own parents when they commit crimes or when they disagree with the regime.

The federal system in the criminal courts is not all that different. The federal system provides for a reduction of sentence in the following circumstances:

5K1.1. Substantial Assistance to Authorities (Policy Statement)
1. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance

There are several problems with this model of “justice.” First, the most guilty parties generally have the most information to give and often receive the most lenient sentences. Second, the government controls making the motion for assistance although court cases have said that the government must use good faith. Finally, defendants who are facing a substantial amount of time are in a position to often lie to attempt to gain the greatest benefit.

Unfortuntately, many federal prosecutors feel that they cannot prosecute a case unless they have informants or co-defendants ready to testify for them. To the contrary, good police work makes the use of an informant unnecessary in most cases.

At my law office, I recognize that the decision whether to become an informant is a personal one. I will counsel all of my clients to the potential benefits of of providing “substantial assistance” but also to explain the many risks and pitfalls. And I also strive to learn the background of all individuals who provide evidence against my client realizing that many times they have a very strong motive to lie because they may be receiving money from the government to be an informant, they may be working to have charges dismissed against them, and they may have nothing to lose for providing false testimony.

The federal system of criminal justice should strive more toward a model of reliability where the risk of false convictions is less because the testimony of informants and snitches is used sparingly and only when demonstrated to be accurate.

Thirty One Years for Stealing a Televison Set !

Monday, January 12th, 2015

 

I was saddened the other day when I read about an out of work wrangler in Los Angeles who was sentenced to thirty one years imprisonment for stealing a television set. This gentleman had no previous crimes of violence though he did have an extensive prior record for minor criminal offenses. He had been crime free for more than five years. This man was not my client.

The gentleman and a friend, according to the district attorney, quickly entered a home in the Los Angeles area in broad daylight, removed a television and left. A burglar alarm was triggered and the two men were stopped a few blocks from the house. The two went to trial and the jury disbelieved the testimony of the first man that he had come upon the television abandoned at the side of the road and that he thought it was salvage property. The other man had a salvage license and it was “trash day”–there were trash cans out along the street.

Regardless of whether the man is guilty spending the rest of your adult life in jail for stealing a television set is an unjust punishment. The judge meted out the punishment in a mechanical manner relying upon the California penal code and the Three Strikes Law. Even the victim submitted a letter that the man recommending that the man only spend a couple of years in jail and that he receive “vocational rehabilitation.”

Even though there have been several favorable changes in California state crminal law, including rolling back penalties on drug offenses with Proposition 47 and a limitation of the applicability of the Three Strikes Law, many unjust sentencing results, like the one above still occur.

Even though I am sad that the judges of California still imposes sentences like this, I am glad that these kinds of injustices still bother me. I guess if there is ever a day when they don’t, then it is time to stop

being a criminal defense attorney.

U.S. Judges Have Gone Crazy

Tuesday, October 21st, 2014

This week, prominent legal fiction writer, John Grisham gave an interview with the press wherein he indicated that the sentences for child pornography in the U.S. were way too harsh. He indicated that American judges had “gone crazy” by locking individuals up for so many years for just viewing child pornographic images. He cited the case of a “law school buddy,” who had received three years imprisonment for straying onto a website with sixteen year old teenage hookers while he was drunk.

Then, Mr. Grisham backpedaled by issuing an apology for his insensitivity and reiterating the refrain of prosecutors that “anyone who harms a child for pleasure… should be punished to the full extent of the law.”

I commend you Mr. Grisham for having the honesty to speak out on an untouchable theme and to tell it how it is.. But then, I fault you for not having the courage to stick to your guns and for issuing such a broad and undeserving apology.

First, as Grisham, stated, the victimization of children is not to be condoned. But the blanket idea that every time a person views any pornographic image that the child is victimized again and again is catchy, but not with any empirical or psychological proof. I have defended the “other victims,” those who like Grisham’s law school buddy, are sent to jail for many years just for being curious and viewing existing websites that contain child imagery. I watched a man go to jail for fourteen years, yes fourteen years, for only downloading child pornography, not manufacturing it nor having direct contact with a child. This man was a successful businessman with no prior record who had his life shattered by the emotional reaction of a federal trial judge.

And there is no empirical proof that viewing child pornography makes an individual more likely to commit crimes against children. This is logical when you think there is no proof that viewing adult pornography makes an individual more likely to commit rape.

Not only the judges, but the legislators who pass these laws have gone crazy and punished the wrong class of offenders. The government should spend its resources going after those individuals, and yes, governments that allow children to be exploited and filmed for the lascivious pleasures of others

Your books, Mr. Grisham, are about educating the public on the legal system. You may have succeeded with your series of popular novels, but you failed by retracting your important comments about child pornography cases.

As criminal defense attorneys in the Law Office of Russell Babcock, we understand the unfairness of child pornography laws, and we have the experience and sensitivity to defend you or your family member if you find yourself facing prosecution for the every growing class of cyber, sex, and pornography laws at the state or federal level.

Thoughts of a federal defender on federal reduction sentencing

Sunday, September 28th, 2014

 

There are few positive developments that I have seen in the criminal law over the past decades. More people are being sent to jail for petty and narcotic drug offenses at both the state and federal level.
Finally, there is a very positive development: the proposed reduction in base level for all federal drug offenses.

The most important part of this pending law is that those who are already in federal custody may apply for this reduction.

The bad news is that the granting of a petition will be discretionary. Also, the calculation of who qualifies for the reduction is complex depending on the nature of the charge, the release date, the way the original sentence was structured, and conduct while in prison.
You will probably not receive a free attorney for this reduction. You must bring the petition yourself, and you only have one chance to reduce your sentence. Sentences may be reduced by as much as two years or more.

In the Law Offices of Russell S. Babcock, I have devoted a special department to federal sentence reductions in all drug cases including methamphetamine, cocaine, heroin, and marijuana. Call today for your free consultation at (619) 531-0887. Do not take a chance that this law will change or be repealed in the future; call today to talk with one of the federal sentence reduction experts. We also handle pardons and executive clemency cases.

“Three In One Hundred”

Monday, March 24th, 2014

I am not ashamed to admit that in my down time I sometimes enjoy watching, “The Family Feud.” Steve Harvey has presence and charisma that would make any criminal defense attorney proud.

For those of you who know the show, members of the community are polled for their answers to a straightforward question. Most recently the results to two questions greatly surprised me and troubled me.

Question number one was: What career do you most admire? Only three in one hundred of the respondents replied, “attorney.” I bet most have forgotten that one of the most admired individuals in history, Abraham Lincoln, was a criminal defense attorney before becoming President.

Even more disturbing was a second question that was asked of viewers: What profession’s members would be least likely to get into heaven? Lawyer was the number one choice followed by prostitutes, professional thieves, drug dealers, and hit-men.

These results are clearly not scientific, but still indicative of the public’s poor perception toward the legal profession. How did my profession become so tainted? Why is it that many individuals trust used car salesmen and telemarketers more than lawyers?

I think that most of this started when it became so common for lawyers, including even one of our illustrious ex-presidents, to lie, even when under oath. On the basis of a few television shows and high profile lawyers who have gotten caught playinb fast with the truth, many members of the public believe that criminal defense attorneys routinely go in front of juries and lie. The reality is that most of the good ones don’t.

As a criminal defense attorney, I am a mouthpiece for my client. I help a less-educated client present a defense in the best possible light. The idea is that the government has many clever prosecutors that can take any action by an accused and put a spin on it. Take a border drug case, for instance. At trial, I almost always hear the border patrol agent paint the conduct of the client in a nefarious light: “the defendant stared straight ahead,” or “the defendant appeared nervous.”

It is my job to tell the jury that many of us stare straight ahead when we are waiting on further instructions from a law enforcement agent, and even the innocent are frequently nervous when they are detained by armed police officials.

My job is not only to help innocent clients tell their story but also to bring out important facts that the prosecutor won’t to achieve a fair sentence. I hade a elderly female client attempt to smuggle kilo of methamphetamine across the border in a body girdle. Big mistake. But after I told the judge her story, she received an eighteen month sentence instead of the normal ten years. Her grandson was on his death bed because her desperately needed heart surgery. I presented the proof to the judge. I am a presenter of the facts and not a liar.

As defense attorneys, we are kind of like cancer doctors (oncologists). You may not need us, and if you do, you probably won’t contact us under the most pleasant of circumstances. But I guarantee you that you will be glad we are there. We are the only individuals on your side if you or a loved one is accused of the crime. The police are investigators of the prosecution, the prosecutor wants to prosecute you, and the judge is supposed to be a neutral referee. In short, we are all you have got.

So, if you are ever polled by the Family Feud, please say that you admire us or at least say that we should not be stopped at the Pearly Gates. I am proud of what I do and you probably would be too if you understood what I do better.

In Defense of the Criminal Defense Attorney

Wednesday, January 1st, 2014

I am not ashamed to admit that in my down time, I sometimes enjoy watching, “The Family Feud.” Steve Harvey has the presence and charisma that would make any criminal defense attorney proud.

For those of you who know the show, members of the community are polled for their answers to a straightforward question. Recently, the results to two questions greatly surprised me and troubled me.

Question number one was: What career do you most admire? Only three in one hundred of the respondents replied, “attorney.” I bet most have forgotten that one of the most admired individuals in history, Abraham Lincoln, was a criminal defense attorney before President.

Even more disturbing was a second question that was asked of viewers: What profession’s members would be least likely to get into heaven? Lawyer was the number one choice followed by prostitutes, professional thieves, drug dealers, and hit-men.

These results are clearly not scientific, but still indicative of the public’s poor perception toward the legal profession. How did my profession become so tainted? Why is it that many individuals trust used car salesmen and telemarketers more than lawyers?

I think that most of this started when it became so common for lawyers, including even one of our illustrious ex-presidents, to lie, even when under oath. On the basis of a few television shows and high profile lawyers who have gotten caught playing fast with the truth, many members of the publicnow believe that criminal defense attorneys routinely go in front of juries and lie. The reality is that most of the good ones don’t.

As a criminal defense attorney, I am a mouthpiece for my client. I help a less-educated client present a defense in the best possible light. The idea is that the government has many clever prosecutors that can take any action by an accused and put a spin on it. Take a border drug case, for instance. At trial, I almost always hear the border patrol agent paint the conduct of the client in a nefarious light: “the defendant stared straight ahead,” or “the defendant appeared nervous.”
It is my job to tell the jury that many of us stare straight ahead when we are waiting on further instructions from a law enforcement agent, and even the innocent are frequently nervous when they are detained by armed police officials.

My job is not only to help innocent clients tell their story but also to bring out important facts that the prosecutor won’t to achieve a fair sentence. I hade a elderly female client attempt to smuggle kilo of methamphetamine across the border in a body girdle. Big mistake. But after I told the judge her story, she received an eighteen month sentence in federal court instead of the normal ten years. Her grandson was on his death bed because hee desperately needed heart surgery. I presented the proof to the judge. I am a presenter of the facts and an advocate, not a liar.

As defense attorneys, we are kind of like cancer doctors (oncologists). You may not need us, and if you do, you probably won’t contact us under the most pleasant of circumstances. But I guarantee you that you will be glad we are there. We are the only individuals on your side if you or a loved one is accused of the crime. The police are investigators of the prosecution, the prosecutor wants to prosecute you, and the judge is supposed to be a neutral referee. In short, we are all you have got.

So, if you are ever polled by the Family Feud, please say that you admire us or at least say that we should not be stopped at the Pearly Gates. I am proud of what I do and you probably would be too if you understood what I do better.


© 2010 Russell S. Babcock - Bilingual San Diego Criminal Defense Attorney & Lawyer