Charles F Magill for Fresno County Superior Court Judge 2014

Charles F. Magill is the best candidate for judge

In February 2014, Hon. Robert Oliver announced that he would not run for re-election as a superior court judge. Judge Oliver was a good judge and he served Fresno County well for more than twenty years. I appeared before Judge Oliver on many occasions. He was fair, balanced and respectful of the attorneys and our clients.

Not all judges are "good" judges. Most judges in Fresno County are former prosecutors, a few practiced civil law and a miniscule number are former defense attorneys. Many of the former prosecutors are unable to adopt a fair and balanced approach to the bench. 

Prosecutors are punished for compassion

To understand why former-prosecutors make poor judges, you have to understand the job of a prosecutor. The way it is supposed to work is the prosecutor represents the people of California. Citizens of California are entitled to have criminals punished for committing crimes. However there is no perfect method for measuring exactly how many crimes have been committed. Therefore there is no way to know if every crime that was committed was prosecuted properly. We can however count the number of cases that are filed and compare one year with another.  

The result is that district attorneys have a motivation to file as many cases as they can and obtain a conviction any way they can. More convictions translates into a larger budget and more influence by way of a larger department with more employees. 

Each individual prosecutor should dismiss cases that cannot be proven or are not supported by the evidence. In practice, the prosecutors are told that they cannot dismiss cases without a supervisor's permission. Tactics are used to ensure a conviction. A common tactic is to file very serious charges, even when they are not supported by the evidence. I call this extortion because the prosecutor will usually offer to settle the case by amending the complaint to include less serious offenses. 

If a prosecutor dismisses a case because the evidence does not support the charge, they will be punished. Any prosecutor who fails to aggressively prosecute cases, without regard to justice will be overlooked for promotions or possibly transferred to an undesirable assignment. A prosecutor with a heart has almost no chance of being considered for an appointment to the bench. 

Heated Judicial Race

There are five candidates for judge Oliver's seat. The five people are Steve Smith, an unemployment hearing officer, Lisa Gamoian, a current Fresno County prosecutor, Jarrett Cline another prosecutor, and Rachel Hill, a former prosecutor. You can read more about each candidate in this article.  Fresno Bee article about the race

The only candidate that has never been a prosecutor is Charles F Magill. In the interest of full disclosure, Mr. Magill is a colleague of mine. Mr. Magill practices criminal defense, education law and he represents crime victims as well. I have known Mr. Magill for about nine years. 

I support Mr. Magill for judge because he is a man of integrity and I know that he is the best person for the job. Mr. Magill has never had to "sell his soul" by prosecuting people that he believes are innocent just to save his job. Mr. Magill has represented several people, some were innocent and he obtained acquittals for them, others were guilty and he fought for them because everyone deserves an advocate. 

Safer Streets vs. Tough On Crime

A popular mantra of the prosecutor is "I will be tough on crime." I wouldn't even say that we should be soft on crime. The problem is that the approach does not work. Simply increasing the punishment for crimes does not work when we cannot afford to staff the jails. In fact, I believe that most people are not concerned with the level of punishment given for a specific crime. The issue that people really care about is safety. Everyone wants our streets to be safe and our property to be secure. 

I for one don't particularly care how the government makes the street safe or protects my property from being stolen, except to say that I hope it doesn't bankrupt us to do it. If a judge orders a defendant to obtain a mentor and bring the mentor to court to check on progress, I am fine with it. Currently, most seated judges simply remand the defendant knowing that they will be released for overcrowding within a few hours.  

The primary reason I support Mr. Magill is because I call Fresno my home and I know that Mr. Magill will make Fresno safer. The streets will be safer with Mr. Magill on the bench because Mr. Magill will implement innovative solutions to jail overcrowding and budget issues. Mr. Magill has been a small business owner for 25 years, he knows how to solve problems and work within a budget. 

You can learn more about Mr. Magill at his website Magill for Judge 2014

What is an arraignment?

You or someone you care about has been charged with a crime, what should you expect at the initial hearing?

Being charged with a crime is a frightening ordeal that is foreign to most people. Life and liberty are at stake, in most cases it is made worse by the fact that nobody tells you what to expect. The first hearing in a criminal case in California is the Arraignment Hearing.

Arraignment Is An Important Stage of Every Prosecution

As a criminal defense attorney with years of experience I find that many defense attorneys treat arraignments as primarily a clerical event that has little or no effect on the final outcome of a case. However that is not entirely true. Criminal prosecutions in California begin with the filing of a complaint with the Superior Court by the District Attorney.

The complaint includes the charges the People must prove and any enhancements or special allegations. The complaint must be specific enough to allow the defense to prepare a defense against the charges. The dates alleged must be specific and the names of the defendants must be included on the complaint. 

A skilled defense attorney will review the complaint and determine if a demurrer should be entered. Demur means to object. In law school I was taught that a demurrer should be entered if you can say 'even if everything in the complaint was true, a crime still was not committed.'  Demurrers are rare but the defense attorney should read the complaint and rule out whether a demurrer is appropriate or not.

If a demurrer is not made then a plea will be entered. Before the plea is entered the defendant is entitled to have the charges and rights read out loud. In practice however the defendant usually waives formal reading of the charges and the rights, instead simply acknowledging the complaint and waiving the reading of constitutional and statutory rights. 

Not Guilty Plea

Regardless of whether a person is guilty or not, the initial plea is almost always 'Not Guilty.' A not guilty plea is entered because it allows for a review of possible defenses, discussion of sentences and consideration of potential outcomes. Then of course another reason someone would enter a plea of not guilty is because they are not guilty. 

Depending on whether the allegations are felonies or misdemeanors and depending on whether a person is in custody or out of custody certain speedy trial rights determine the next hearing. 

O.R. Request and Bail Hearings

At the same time a defendant is arraigned, the issue of custody status often comes up. If a defendant is in custody in California the defendant frequently asks to be released from custody. In 2009 California enacted some laws that requires that victims be given notice of bail hearings, therefore bail hearings are usually set for another day.

Once a judge rules on a bail request or a request to be released on 'Own Recognizance' (O.R.), the issue cannot be raised again unless there has been a change in circumstances. This means that a request to reduce bail or be released on O.R. should not be made unless it can be made thoroughly. The defense attorney should meet with the client and write a motion that includes all the arguments in favor of release or reduced bail. 

Do You Really Need To Hire a Lawyer

Is It Necessary To Spend Thousands of Dollars on a Criminal Defense Lawyer

Thousands of people are charged with crimes every year across the country. In Fresno County alone there are thousands of cases filed a month again people by the Fresno County District Attorney's office. That does not include the Assistant United States Attorneys filing federal charges every month. 

The stakes are high when criminal charges are involved. Punishment in criminal matters range from fines to the death penalty with years of prison and financial ruin in between. There is no doubt that criminal cases can be scary, even a relatively minor drunk driving offense can be punished by jail time and fines totaling more than $3,000.

Criminal Defense Lawyers Are Not Cheap

Criminal charges can be scary because the punishment can be severe and most people are unfamiliar with the system. Many people hire a criminal defense lawyer to help them or their loved one face criminal charges. Unfortunately, criminal defense lawyers charge several thousands of dollars for most cases. I charge people different amounts depending on the complexity of the case and several other factors.

The most important factor I consider when quoting fees to a potential client is the maximum exposure the person is facing. For example, if a person is charged in a federal matter that carries 20 years to life in prison then I would begin my fees around $20,000. That is just a starting point because I would have to consider other factors before I would agree to take the case for that amount. 

Another factor that I consider in setting fees is the location of the court where I will have to appear. If I have to travel out of Fresno County then I generally add in the estimated travel expenses as well as the estimated fees that I will have to pay other attorneys to appear for me when I am out of Fresno County.

The equation gets more complicated from here because it is at this stage in the process that I have to consider the client's criminal history, the potential issues that the specific cases includes and the judge that will be hearing the case as well as the Deputy District Attorney that will be prosecuting the case. All these issues factor into the amount I charge to represent a person because they will effect the difficulty of the case and the amount of work that has to be done on the case. 

All these things considered, my fees range from $1,500 to $100,000 for a single case. Most people do not tell me directly that they question the need to pay me so much but I am fairly certain that some people cannot help but wonder if it is absolutely necessary to pay me so much. 

If You Can Afford It, Then You Should Hire A Lawyer

Some attorneys may tell you that you should always hire a lawyer but I can honestly say that sometimes a private lawyer is not justified. I have worked for the Public Defender's office and I will tell you that most of the attorneys that work there are competent lawyers that have a tremendous amount of experience. In California every person that is charged with a crime that carries potential incarceration is entitled to get a public defender at no cost or with an income based fee range.

In most cases you can go with a public defender if money is particularly tight. The problem with using a public defender is that they are busy and cannot spend as much time as a private attorney.  One of the best things about having a private attorney is that you can ask a lot of questions and get in touch with the attorney if you need to talk with him or her. 

The other advantage of hiring a private attorney is that if you are not happy with the private attorney you can fire them and hire another lawyer. If you are appointed a public defender you cannot fire the public defender. Many people believe that public defenders can be 'fired', that is not true. If an appointed attorney is not representing the defendant and the judge agrees that he or she has not done her job then the judge can appoint another attorney. 

My experience has been that the most successful private attorneys are successful because they have done a good job and everybody wants to hire them. Almost all of my clients come to me by referral. Someone that I have represented has told someone else that I did a good job for them and that leads them to contact me for help. 

If you want a lot of time to ask questions and a good relationship with the person that is going to represent you then you need to hire a private attorney. Many private attorneys are former public defenders that were successful as public defenders so they went out on their own. That is exactly what happened in my case. 

I only left the comfort of a regular job with benefits after many clients told me that they wanted to hire me privately. With many happy clients to serve as a client base I went out on my own. I have been happy as a private attorney because I can choose which clients I want to help and I have total freedom with my practice. 

I cannot deny that being a private attorney has been financially rewarding as well. The one thing that I did not mention above was the reality that I only have a certain number of hours in a day. My fees reflect that when I raise my rates because I have too many clients and not enough time to properly represent them all. 

Back to the issue at hand, should you hire a lawyer? I cannot tell you to hire a lawyer or not to hire a lawyer because I do not know your financial situation or the specifics of your case. If you really want to be informed about developments in your case and you want the best possible outcome then you should hire a private attorney. 

Make sure that you get some references from friends or former clients of the attorney and then hire the best lawyer you can afford. Remember your life, freedom and finances are on the line, the money you save by not hiring a lawyer may not be of any use to you if you are in prison for years and it certainly will not replace the feelings you feel when you spend quality time with a loved one that would otherwise be in prison. 

Murder Without a Body

Can a person be convicted of murder without a body?

A common misconception among the general public is that a person cannot be convicted of murder if a body is never found. The truth is that most states do not require that a body be found in order to convict a person of murder.

The California case of Dave Hawk is an example of how a person can be convicted of murder. Mr. Hawk was convicted of killing his ex-wife Debbie Hawk after the woman went missing from her Hanford home in June 2006. Debbie Hawk's body was never found but that did not stop the jury from convicting Mr. Hawk of murder in 2009. 

Another example of prosecution for murder is the case of an Arizona woman, Jerice Hunter. Ms. Hunter is being prosecuted for the murder of her daughter. The 38 year old Glendale, AZ woman was arrested in September 2012. Law enforcement believes that Ms. Hunter killed her daughter and dumped the body in a landfill however the body was never found.

The Hunter case was in the news recently because Judge Daniel Martin granted the defense attorney additional time to prepare for trial after Ms. Hunter's previous attorney was removed from the case because he had not been paid. I found the name of the judge to be interesting because my name is Daniel Martin and I am a criminal defense attorney, however there is no relation.

There are various types of evidence

Murder cases are not unique when it comes to rules of evidence. The general rule is that all relevant is admissible unless otherwise excluded. What exactly does that mean? Well it means that if something tends to prove or disprove a fact that is disputed then it is admissible. 

Prosecutors can prove that a person is dead by introducing various types of evidence. Obviously the easiest way to prove that a person died is bring in the coroner and ask him or her questions about the autopsy. If you think about it though, they don't actually bring the body into court because the person is usually buried or cremated by then.

Instead of calling the coroner to prove that a person is dead the prosecutor can call family members and friends to testify that the person would never just disappear without telling anyone , In the Hawk murder trial there was evidence of Debbie Hawk's vehicle left abandoned in Fresno, CA. The jury apparently came to the conclusion that Debbie was killed and that Dave Hawk killed her.

I have represented a number of people in murder cases but none of the cases involved a victim that had not been found. It is much more common to have other types of 'direct evidence' missing. For example drugs get destroyed prior to trial. Additionally the person's mental state is almost always proved by circumstantial evidence because the defendant usually does not admit to having the required state of mind.

For example a person that enters a business to steal merchandise inside is guilty of commercial burglary. In most cases the person does not admit that they went into the store to steal. The prosecutor must prove that the person intended to steal when they entered the business to obtain a conviction for commercial burglary. To prove the person's intent they will introduce circumstantial evidence like the fact that the person had no cash on them when they entered the business, or they brought a pair of clippers with them so they could cut off the theft deterrent devices. 

Circumstantial evidence is probably the most common form of evidence. There is a jury instruction that deals with circumstantial evidence. Essentially it explains circumstantial evidence with a hypothetical that goes something like this... If a person came inside a building wearing a raincoat and carrying an umbrella and there were water drops on the raincoat, there would be circumstantial evidence that it was raining outside. 

Circumstantial evidence is evidence that tends to prove something that itself makes it more or less likely that another fact is true or untrue. Due to it's nature circumstantial evidence must be treated with caution. Jury instructions caution jurors to be careful when evaluating circumstantial evidence, if the evidence can show that a person is guilty or innocent then the jurors are instructed to adopt the interpretation that suggests that the person is innocent. 

An experience criminal defense attorney can explain how direct and circumstantial evidence applies to each individual case and he can make the jury question the evidence. 

Police Officer Apparently Dead

Christopher Dorner May Be Dead

The former Los Angeles Police Officer that killed four people after going on a rampage may be dead. Previously here on Fresno Lawyer, I wrote about Christopher Dorner being disgruntled with his attorney. The former police officer was terminated after an administrative hearing where he was represented by Randy Quan. Mr. Quan is a retired Los Angles Police captain who became a lawyer after retiring from the department.

It seems that Mr. Dorner totally lost it after he decided that he was wrongly terminated from the police department for reporting that another officer used excessive force. Christopher Dorner kicked off his spree by killing Mr. Quan's daughter and her fiance. He then killed another officer east of Los Angeles and wounded another officer.

Christopher Dorner Cornered

On February 12, 2013 officers apparently cornered Christopher Dorner in a house near Big Bear Lake California. A couple of days prior to cornering Mr. Dorner officers found Dorner's pickup truck burned out and abandoned. After days of an extensive manhunt a report came in that someone broke into a home and tied up the two female occupants. One of the occupants freed herself and notified police.

A subject matching Dorner's description was holed up in a house near the location of the burglary. After an exchange of gun fire that was caught on a video by a local news station, the house that Dorner is believed to be inside of burned. It is now believed that Mr. Dorner died inside the house after it burned. 

With today's shootout the death total rose to four. Randy Quan's daughter, her fiance, the officer east of Los Angeles and a deputy sheriff that was shot in the shoot out today. My thoughts go out to the officers that died at the hands of Christopher Dorner. 

Unfortunately Mr. Dorner is not the only person who blamed his lawyer for an unwanted outcome in a legal matter. Many lawyers have been shot and killed by their own clients. When I worked for a worker's compensation defense firm we always kept the front door locked because many people who had worker's compensation claims were very upset with my firm because they had been denied treatment or otherwise were unhappy with the outcome of their case and they blamed the firm that I worked for. 

Former Police Officer On Crime Spree

Former L.A. Police Officer On Killing Spree

This site is about the law and the criminal justice system. I have written about a Deputy District Attorney that was shot and killed in front of a courthouse in Texas and some judges in Pennsylvania that were charged with corruption so I thought that I should cover a related news story. 

If anyone has not been following the news then they may not know about Christopher Dorner, a former Los Angeles police officer who was fired by the department a couple of years ago. Apparently he is still disgruntled over being fired. Actually that is the understatement of the year, this guy has lost his sanity. He has already killed at least three people.

Mr. Dorner has been trained by the police department and the military. In fact, he recently received an honorable discharged from the National Guard after ten years of service. That was before he started his crime spree by killing two people as they sat in a vehicle in a parking structure. 

One of the two initial victims was the daughter of an attorney, former police officer that represented Mr. Dorner at an administrative hearing that ultimately resulted in his termination from Los Angeles Police Department. 

The concept of disgruntled client blaming his attorney for an unwanted result is not new. A couple of years ago a Fresno attorney was shot and killed during a lunch break by a husband that was bitter about the proceedings in a divorce action. That attorney is not alone many attorneys have been injured by clients over the years, some killed. 

As of this writing, Mr. Dorner has killed three people and injured more people. He has pledged to continue to kill people until his name is cleared. I hope he is located before he can hurt anyone else. 

Obama's Immigration Plan - Tighter Borders

President Obama recently outlined a four part plan to overhaul immigration in the United States. I previously discussed the pathway to citizenship in another post. The White House claims that an important part of the plan requires that the borders become more secure.  

Strengthen Border Security

In an effort to address concerns of conservatives and to increase the effectiveness of other parts of the plan, President Obama's plan would include provisions intended to 'shore up' border security. The plan calls for additional border patrol agents and increases in the use of technology to made borders more secure.

Personally, I do not believe that a lot of money should be invested in shoring up the borders. True we need to secure the borders to reduce the threat of terrorism. However when it comes to unwanted immigration we can practically eliminate the problem with mandatory E-verify.

E-verify is the system that is currently in place to ensure that employers only hire people who are in the United States legally. If the system was used by every single employer there would be almost no illegal immigration. The reason people are coming to United States is because they can work here and build a better life for themselves.

Many Businesses Rely On Aliens

The reality is that many businesses in the United States rely on cheap labor made possible by illegal immigration. In California the fields are worked by Mexican nationals that crossed the border illegally. In Colorado there are illegal aliens working in meat packing plants. In hotels across the country there are rooms that are cleaned by illegal aliens. 

If every employer had to use E-verify to ensure that each employer was in the country legally there would be almost no jobs. After a short period of time, illegal immigration would screech to a halt. Although it is true that a person could come into the country illegally and live with family or friends for a while, without a job they could not contribute to the family and would have to go back. 

The additional taxes that would be collected when every employer used E-verify could be used to reduce the national budget and support public assistance programs. There are several benefits of immigration reform, for the most part it would shift the benefit of having illegal aliens in the country from the farmers and business owners that take advantage of the cheap labor to the general public because taxes would go to everyone instead of the few businesses that reap the windfall of cheap labor.