Los Angeles Criminal Defense Lawyer Blog

There has been a recent debate on whether a defendant's cultural customs and traditions should play a role in the criminal justice system. In Sacramento, Weili Kao was convicted of child abuse and child endangerment and received a 16-year sentence. However, based on evidence that traditional Chinese parenting requires strict obedience from children and punishes misbehavior with severe spanking, she was was acquitted of the torture charge, which carries a possible life sentence.

Many people, such as Alison Dundes Renteln, a Los Angeles, California political science professor at the University of Southern California and author of "The Cultural Defense", believe that these people have a right to be judged in the context of their various cultures like arguments of self-defense or insanity provide context in other criminal proceedings.

Prosecutors, however, believe that this type of evidence is irrelevant, has no place in a criminal trial and should be inadmissible. One of their arguments is that, since the prosecution is not allowed to present such evidence to show police officers or other prosecution witnesses "state of mind", why should the defense be allowed to do this? I believe that, in certain cases, this type of evidence showing a defendant's cultural traditions and customs should absolutely be admissible to help the trier of fact understand the entire picture and make an educated decision based on the totality of the circumstances.

An example of such a situation where this type of evidence was critical in making sure justice was served was with one of my client's cases in Dallas, Texas. He is an Albanian who was charged with sexual assault against his 4 year old daughter. A witness claimed that she saw him fondling, caressing, etc. his daughter while watching his 9 year old son's karate match in the front row of a crowded high school gymnasium. Based on this witness' statement to police, both of my client's children where taken away from him and his wife.

At his criminal trial, the judge allowed a Massachusetts anthropologist named Barbara Halpern (one of the country's foremost authorities at the time on the peasant culture of the Balkans) to testify as to Albanian culture and how it is very common for fathers to love their children so much and show this affection by touching, caressing, etc. She explained that these actions were done not with sexual intent but, rather, with playful affection -- in keeping with his culture, which cherishes children and showers them with physical affection.

Sadly, though, although he was acquitted of the criminal charge, his children had been taken from him permanently after his child custody trial. In that trial, the judge would not allow Ms. Halpern testimony regarding Albanian traditions and culture.

Posted by Al F. Amer | Permalink | Email This Post

Posted In: CRIMINAL LAW

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In the last legislative session, the Texas Legislature debated whether or not to change the law making a burglary of a motor vehicle (BMV) a felony again. Between 1992 and 1994, before the penalty was decreased, the number of car burglaries in Texas actually decreased 13% from 260,000 to 211,000 per year. In 1994, the year after the Legislature changed BMV from a felony to a misdemeanor, we immediately saw a sharp increase in vehicle burglaries, especially in big cities. In Houston, for example, BMVs increased 20 percent to a total of 23,000 the year after the change. In 2003, nine years after the penalty was lowered, there were 273,000 BMVs in Texas, an increase of 30% from 1994. And more recently, there were 32,362 car burglaries in Houston last year alone. Based on these statistics, many blame the increase in motor vehicle burglaries on the change in the BMV law from a felony to a misdemeanor.

Others, however, say that an increase in drug addiction is the cause of the increase, not the change in law, since these additional drug addicts must support their habits by committing BMVs. Opponents of changing the law like Benny Hernandez with the American Civil Liberties Union say that the change "will only stigmatize offenders as felons, making it more difficult for them to find employment and housing, while ignoring the drug addiction that drives their criminality." Mr. Hernandez also thinks that, "Increasing sentences clogs up the system but does nothing to solve the problem."

The Legislature decided to change the law and on September 1, 2007, the new law (HB 1887) amending Section 30.04 of the Penal Code went into effect.

Section 30.04, as amended, makes BMV a Class A misdemeanor punishable by a minimum of six months (up from 90 days) in the county jail if the defendant has one prior BMV conviction. The new law also makes BMV a state jail felony punishable by 180 days to two years in a state jail and an optional fine of up to $10,000 if the defendant has two or more prior BMV convictions or if the theft was from a rail car, regardless of the circumstances. The Legislature also amended Sections 3 and 4 of Article 42.12 of the Code of Criminal Procedure, imposing a one year minimum period of probation for anyone committing a BMV with one prior.

I think that the new law should've been written in such a way that takes into consideration the individual circumstances of the offender rather than just making all BMVs with two prior convictions felonies. As a prosecutor in Los Angeles County for almost 8 years, I saw firsthand the effects of the Three Strikes Law in California and the danger of making all third strike offenses punishable by 25 years to life in prison. People who committed a minor theft offense as their third strike were punished way too harshly. Although the new BMV law does not have such serious consequences, the same principle applies since all third offenses are treated the same rather than looking at each individual case, which is what we ended up doing anyway in Los Angeles County as a general office policy after District Attorney Steve Cooley was elected.

The Legislature could've done what is done in other jurisdictions and made the decision of whether or not to file it as a felony discretionary (based on the totality of the circumstances), also granting judicial authority to reduce to a misdemeanor if the district attorney "overcharges" the offense. Under this scenario, a third offense could be a felony or a misdemeanor if the person has prior theft-related offenses that are "minor" or if the circumstances of the immediate offense do not warrant the person being sentenced to state jail. I think that this change would make much more sense than just making any third offense a felony regardless of the circumstances. Stay tuned to see what the effects of the new law are going to be.

Posted by Al F. Amer | Permalink | Email This Post

Posted In: THEFT OFFENSES

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