Blog Jay Leiderman Law

Petitioner enjoyed the right to raise the defense of personal autonomy and privacy in the bedroom.

Petitioner was denied the ability to raise his defense because of the language in People v. Giardino (2000) 82 Cal.App.4th 454 and People v. Dancy (2002) 102 Cal.App.4th 21.  This was accomplished by the reliance upon such phrases as: “Had the Legislature actually intended to require proof of the victim’s actual or hypothetical lack of consent as an element of rape of an unconscious person, it would have been simple for the Legislature to include a lack of consent element as it did in other subdivisions of Penal Code section 261. Its failure to do so is indicative of its decision that sexual intercourse with an unconscious person is a criminal sexual offense regardless of real or hypothetical consent[;]” People v. Dancy (2002) 102 Cal.App.4th 21, 35; and “Because section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication, the lack of actual consent is not an element of the crime.  Accordingly, the trial court properly denied the defendant’s request for an instruction to the contrary.” People v. Giardino (2000) 82 Cal.App.4th 454, 464.

Giardino and Dancy fail to address the constitutional right to privacy inherent in the petitioner’s acts.

Article I, section 1 of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

In many contexts, the scope and application of the California state constitutional right of privacy is broader and more protective of privacy than the federal Constitutional right of privacy, as it has been interpreted by federal courts. American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.

Although the state Constitution does not contain any explicit reference to a “right to marry,” that right is a fundamental right whose protection is guaranteed to all persons by the privacy and due process clauses of the state Constitution. In re Marriage Cases (2008) 43 Cal.4th 757, rehearing denied. “[U]nder the state Constitution, the right to marry and the right of intimate association are virtually synonymous.” Penal Code section 261, 1303.


THe right to privacy in the bedroom was established by hte Supreme Court in Lawrence v Texas

Beyond question, “[t]he present case … concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees…. [There are definite] notions of privacy surrounding the marriage relationship. [¶] We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” (Griswold v. Connecticut (1965) 381 U.S. 479, 485-486)

“With California’s adoption in 1972 of a constitutional amendment explicitly adding “privacy” to the “inalienable rights” of all Californians protected by article I, section 1 of the California Constitution — an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, “particularly as it developed beginning with Griswold v. Connecticut[, supra,] 381 U.S. 479″ (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 28) — the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause, [fn omitted] now also clearly falls within the reach of the constitutional protection afforded to an individual’s interest in personal autonomy by California’s explicit state constitutional privacy clause. (See, e.g., Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 34 [the interest in personal autonomy protected by the state constitutional privacy clause includes “the freedom to pursue consensual familial relationships”]; Valerie N., supra, 40 Cal.3d 143, 161.) [fn omitted] In Re Marriage Cases (2008) 43 Cal.4th 811.

This case is almost indistinguishable from Lawrence v. Texas (2003) 539 U.S. 558: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” [citation omitted]. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Petitioner had the right to engage in adult sexual relations with partners that gave their consent in advance to be penetrated once they were unconscious. The failure of the trial court to allow proof of this issue impinged upon his right to bring forth a defense, as he had the right, under the state and federal constitutions, to engage in consensual sexual behavior with adults.

Counsel for petitioner tried, albeit not in a manner that was perfectly articulate, and not as a motion made on constitutional grounds, to admit this defense via a special jury instruction (see exhibit 12). The defense asked the court to instruct the jury that: “When two people mutually agree to consume an intoxicating substance or substances that are known to reduce sexual inhibitions for the explicit purpose of engaging in sexual activity neither party is guilty of a sexual offense.”  The request was denied.

Accordingly, petitioner’s conviction violates his right to privacy under Article I, Section I, of the California Constitution and the penumbral right of privacy as found in the Ninth Amendment to the US Constitution.



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Attorney Jay Leiderman is the guest on the second ever Commander X radio show: Commander X Speaks on PLF Radio

Jay Leiderman

Jay Leiderman addresses a crowd

Check it out:

Topics include legal analysis of the recent conviction of “Weev” and “Nerdo” and the new indictment of Barrett Brown.  
Feds: Homeless hacker ‘Commander X’ arrested

Christopher Doyon, a 47-year-old homeless man, was one of two men arrested Thursday for carrying out cyber attacks on Santa Cruz County computers.


Doyon’s attorney, Jay Leiderman, tells CBS News his client is homeless but would not confirm that Doyon was in fact the hacker known as Commander X.

“At this point I have no information to suggest that the person in custody, Christopher Doyon, is Commander X,” Leiderman said, adding, “Commander X isn’t a person. He’s an idea and that idea is social justice.”


On February 11, 2012, a press release appeared on Pastebin. “The PLF is delighted to announce that Commander X, aka Christopher Mark Doyon, has fled the jurisdiction of the USA and entered the relative safety of the nation of Canada,” it read. “The PLF calls upon the government of the USA to come to its senses and cease the harassment, surveillance—and arrest of not only Anonymous, but ALL activists.”


Commander X

Free Commander X!

Three months later, Doyon’s pro-bono lawyer, Jay Leiderman, was in a federal court in San Jose. Leiderman had not heard from Doyon in a couple of weeks. “I’m inquiring as to whether there’s a reason for that,” the judge said. Leiderman had no answer. Doyon was absent from another hearing two weeks later. The prosecutor stated the obvious: “It appears as though the defendant has fled.”


Doyon is still in hiding. Even Jay Leiderman, his attorney, does not know where he is. Leiderman says that, in addition to the charges in Santa Cruz, Doyon may face indictment for his role in the PayPal and Orlando attacks. If he is arrested and convicted on all counts, he could spend the rest of his life in prison. Following the example of Edward Snowden, he hopes to apply for asylum with the Russians. When we spoke, he used a lit cigarette to gesture around his apartment. “How is this better than a fucking jail cell? I never go out,” he said. “I will never speak with my family again. . . . It’s an incredibly high price to pay to do everything you can to keep people alive and free and informed.”

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Press Release
Lawyer Monthly
UK: +44 (0) 1543 267632


Garrick House, 2 Queen Street
Lichfield, Staffordshire, UK, WS13 6QD

Lawyer Monthly 2016 Legal Awards

Lawyer Monthly

Jay Leiderman has been selected as the Criminal Defense Lawyer of the Year in the United States by Lawyer Monthly Magazine

Lawyer Monthly – Lawyer Monthly is pleased to announce the publication of its 2016 Legal Awards, which recognise the achievements of law firms and individuals who have delivered exceptional results for their clients over the past 12 months – whilst operating in a challenging business environment.

Criminal Defense Attorney Jay Leiderman and his firm The Law Offices of Jay Leiderman, PC have been selected as Criminal Defence Lawyer of the Year.
Corporate lawyers and law firms continue to play a crucial role in supporting and advising businesses so that they not only survive but thrive in tough conditions. The relationship between corporate law firms and their clients has allowed businesses to expand and create opportunities that fuel global economic optimism.

The 2016 Lawyer Monthly Legal Awards recognises firms, individual lawyers, solicitors and barristers that have dedicated their resources to innovation, built on their depth of expertise, and performed outstandingly over the year. As well as announcing this year’s winners, our 2016 Special Legal Awards Edition also features some exclusive in-depth interviews with selected winners, who detail their thoughts on the award, and provide an outlook of their goals and priorities for 2017.

Over several months, the Lawyer Monthly research team has collected and collated nominations through our online voting system. Each nomination
has then been compared against a strict set of measurable criteria, which was in turn combined with additional industry research to help produce a
definitive list of winners.

The Lawyer Monthly Legal Awards 2016 winners have stood out from their peers by demonstrating professional achievement and excellence in their jurisdiction and sector of practice. We would like to take this opportunity to congratulate all the winners and thank everyone who voted.

For further details, and to view the 2016 Special Legal Awards Edition:


Notes to Editors
Lawyer Monthly is a global publication providing news, analysis and features on all the latest headlines within the legal and corporate worlds. Lawyer Monthly examines the key issues affecting the legal community globally, including the major regions such as the US, Europe and Asia, across all sectors including mergers & acquisitions, banking & finance and intellectual property.

Lawyer Monthly is a monthly magazine available in print and online, is a news website updated with high quality relevant content daily. The magazine offers a mix of news-led editorial features, with our editorial team exclusively interviewing some of the biggest players within the legal and corporate fields, and an extensive Q&A style features section which looks at the key legal issues affecting the profession, led by the biggest stories of the moment.

For further information, or to arrange an interview, please contact:
Navdeep Poonia,
+44 (0) 1543 267632
Lawyer Monthly, Garrick House, 2 Queen Street, Lichfield, WS13 6QD, UK,

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DUI – Prescription Drugs & Drugged Driving: What Should You Know

When most people think of DUI, they associate it with drinking and driving. However, in all U.S. states, someone can be charged with some form of DUI for operating a vehicle while under the influence or prescription drugs or other controlled substances.


Operating a vehicle under the influence of prescription drugs can be dangerous, especially when the drugs are mixed with alcohol

This could create a real problem for drivers who do not know that the prescription drugs they are taking could land them in legal trouble – even resulting in jail time in the states with severe DUI penalties. Let’s take a closer look at the drugged driving laws and it would be a good time to hire a DUI lawyer.

What is Driving Under the Influence?

While DUI laws vary from state to state, there is one common factor. It is illegal to operate a motor vehicle while under the influence of an illegal substance, or a legal substance if that substance caused you to be impaired at the time you were driving.

Who is Subject to Conviction?

Anyone operating a motor vehicle while under the influence of drugs is subject to conviction, even if that person has been prescribed the drug in question.

What Are the Penalties?

Individual states will determine what kind of penalty someone could face. In states such as California, even a first-time conviction will result in jail time and license suspension. In most states, the penalties are less severe for first time offenders or those who are only impaired to the slightest degree.

The penalties for driving under the influence of drugs are typically similar to those of an alcohol-related DUI.

The penalties for driving under the influence of drugs are typically similar to those of an alcohol-related DUI

Someone with previous convictions will face harsher penalties and in some cases, could even be charged with a felony offense.

The risk of being accused of a drug-related DUI is much higher for some people. For instance, someone with a chronic condition may have to take certain prescription drugs every day. Most people need a car to take care of all their daily tasks, such as getting to work, shopping and other errands, and may have to drive after taking medication.

Another risk factor is that many people on prescription drugs aren’t aware that they are not allowed to operate a vehicle.

When Should You Speak to an Attorney?

If you are arrested and accused of driving under the influence of drugs, you should contact a skilled attorney as soon as possible. A lawyer who specializes in DUI defense will have close working knowledge of the laws and how evidence is collected.

Prosecutors will always try to convince you to plead guilty, but this is not always the right choice. Your lawyer will help determine the strength of the case against you and negotiate a fair outcome outside of the courtroom, or fight to defend you at trial.

It’s important to know and weigh your legal options and it’s sometimes impossible to do so without the knowledge and guidance of a skilled attorney.

How Do You Protect Your Rights During an Arrest?

Field sobriety tests are a no-win proposition

Most DUI defense lawyers will agree that defendants make their cases harder to win by saying too much to the police at the time of their arrest. It’s important to exercise your Fifth Amendment constitutional right to remain silent. Anything you tell an officer at the time of arrest can be used as evidence against you when your case goes to court.  Also, most people do not know that they can refuse to do field sobriety tests in California.  You can and in most cases you should refuse such tests. They are designed to make you fail.  The police will tell you how well you are doing on these tests, only to turn around and write a report that states you failed.  Field sobriety tests, or FST’s are a no-win proposition.  Implied consent laws in California only require you to take a breath or blood test.

You are most likely not going to talk your way out of a DUI arrest.  Your best course of action is to answer only the questions that the police require you to answer and save your statements until you can speak with a defense lawyer.  You are entitled to ask a police officer if you are required to answer certain questions.  Make clear that you are not refusing to answer questions.


Even legal prescription drug use can lead to a DUI in all states

The smartest course of action during a DUI arrest is to say as little as possible and contact an attorney as soon as you are cleared to make a phone call. It’s also important to ensure that your attorney is the only person you talk to about the details concerning your case. Prosecutors may try to summon people you know as a witness to question them about what details you may have discussed concerning your case.

About the Author

Andi Saivetz is a blogger who enjoys learning and writing about legal issues.

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In 2012 the cases of Jeremy Hammond and Andrew Aurenheimer were yet to be decided.  Questions abounded about how the law would be applied to these two hacktivist test cases.  The below article by Andrew Blake spoke to the zeitgeist of 2012 with perfection.  The full article can be read here:  Below are only my quotes from the story.


Twice last week, the justice system heard cases related to hacking, and in both instances, information sharing and cyberlaw were dealt a seriously heavy-handed blow. The government was the bully here, and the dorky little hacker had his glasses knocked square off his face.


After details from both the [Andrew “weev”] Auernheimer and Hammond cases came in Tuesday evening, I called Jay Leiderman, a defense attorney from Southern California who has represented a fair share of alleged computer criminals, including some aligned with the Anonymous movement that spawned LulzSec. When Leiderman picked up the phone, he was just finishing a day of lawyering near Los Angeles and had barely heard any news from the East Coast yet.

attorney jay leiderman, ventura california, near los angeles, jeremy hammond, hacktivist, weev, andrew aurenheimer, cfaa, computer fraud and abuse act
Jay Leiderman

“Hammond was told he can’t do house arrest and could be put away for 39 years to life,” I told him. He paused. For a while.

Leiderman suggests there’s no way in hell that Hammond will be put away for life for sharing the Stratfor data, but says that the way his and Auernheimer’s cases were handled say a lot about the justice system.

“The way the government is reading these laws [the computer fraud and abuse act or CFAA] really makes about all behavior criminal,” Leiderman tells me.

In the case of Auerenheimer, Leiderman says, “He didn’t access a protected computer yet he was convicted of it.”

He didn’t access a protected computer yet he was convicted of it

“It is clearly a situation of them striking while the iron is still ambiguous,” he says. For right now, there is a real lack of well-defined cyberlaw.

“At some point the federal courts are going to have a chance to consider these issues and realize the prosecutions that they are currently undertaking are in fact what the laws were designed to prevent,” he says. “But before that happens, the federal government is intensifying their pound of flesh. They are trying to scare everyone and make them think that every time they punch upon that keyboard that they are risking 15 years in federal prison. And for as long as that, it’s nothing but a scare tactic and one that ultimately can’t survive in an era of internet freedom.”


“I do think that Hammond’s prosecution is 100 percent political, not withstanding whatever actions he may have taken,” Leiderman says.

“I think we’ve come to a place in America where we no longer value the political dissident. Where speech that is contrary to government is no longer seen as a valuable thing in society,” he says.

“The way that speech works and the way that free speech works is that if an idea is too radical and if an idea is too far flung and too far fetched—like dumpster diving for your food—it’s going to be rejected by the people in the marketplace of ideas, and that’s the way the marketplace of ideas works. But when it’s the government telling us, ‘Nah, this idea is no good. We need to reject it,’ then it’s no longer free choice in the marketplace of ideas. We’re being told what to think and that’s where it gets scary.”

“It is scary when you put it that way,” I told Leiderman.


“If recent events have taught us anything it’s that Congress is absolutely useless and is not likely to do anything on any issue at any time,” says Leiderman. “They are the most impotent band of individuals on the planet, so we need to leave it to the court to let this shape out. And you know, the courts don’t suffer fools lightly. The courts have historically done a reasonably good job in protecting our freedoms and narrowly circumscribing crimes such that bold behavior isn’t criminal. And the way the government is reading these laws really makes about all behavior criminal.”

For now, says Leiderman, interpretation in regards to computer crimes is weak. While it’s arguable that the justice system will never keep up with the pace of technology, at this rate it could be too late before laws are finally structured in such a way that Hammond and Auernheimer aren’t looking at guaranteed, asinine sentences.

This isn’t what these laws were meant for

Meanwhile, says Leiderman, the state of affairs is ludicrous. “They’ve made a rule so broad, so amorphous and so ambiguous,” he says, “that reasonable people can’t ascertain what conduct is in fact covered.”

“We’re at a point in the history of these prosecutions where the government can literally charge anyone for anything and they seem to be doing that in a very targeted manner. They are going after people they don’t like for speech that they don’t like and they are going to get these convictions up until the point where courts start telling them, ‘Stop it. This isn’t what these laws were meant for.’”

That’s assuming the people have a voice long enough to make that opinion heard.

Blake is a web producer for Russia Today. Follow him on Twitter. 

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