Blog Jay Leiderman Law

In 1996 “GHB” was not a “controlled substance.” California first “scheduled,”[1] some forms of GHB, or made it illegal, by placing it upon the list of prohibited substances in Health and Safety Code section 11055(e)(6), by passing urgency legislation that became effective on 2 December 1997 (See exhibits 58-59, 1997 AB6[2]). As urgency legislation, the legislation became effective when the governor signed it and it was “chaptered.”  On 1 January 2000, section 11055(e)(6) was amended to be more inclusive and GHB became listed section 11054(e)(3) and section 11056(c)(11).[3]  Thereafter, all forms of GHB became controlled substances.[4]

GHB of any type was simply not a controlled substance in 1996, when the crimes charged herein occurred.  Ergo, the trial team’s failure to research the law and investigate the facts as they relate to GHB, and to request proper jury instructions, resulted in years of imprisonment.  Counsel committed a century of ineffective assistance of counsel by failing to read and know the law and apply it to the facts of this case

GHB

[1] See H&S 11007: “’Controlled Substance’  . . . means a drug . . . listed in any schedule in section . . . 11055 . . . .”

[2] http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_0001-0050/ab_6_bill_19970929_chaptered.html

 

[3] In 1997 GHB was simply listed as “Gamma-hydroxybutyrate.”  The drug is now listed in section 11054(e)(3): “Gamma hydroxybutyric acid (also known by other names; gamma hydroxy butyrate; 4-hydroxybutyrate; 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate), including its immediate precursors, isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, including, but not limited to, gammabutyrolactone, for which an application has not been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355);” and 11056(c)(11): “Gamma hydroxybutyric acid, and its salts, isomers and salts of isomers, contained in a drug product for which an application has been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355).”

[4] And, of course, it was a failure of the ineffective defense team to not explore this issue.  An expert, even used solely as a defense consultant, could have helped Diamond distinguish between the types of GHB and thereby could have afforded him the argument that Shawna may not have been administered the type of GHB that was illegal in 1997.  The jury was instructed that the rape of Shawna was via a controlled substance and all counsel simply failed to inquire as to whether or not the type of GHB petitioner possessed was that which was prohibited in 1997.

***

GHB has a biphasic sedation pattern which is due, in part, to the two main types of receptors to which the drug binds.  At lower concentrations, the drug binds more to one than another.  At a higher concentration, the drug binds to the other receptor.  The first causes more of an elevation in consciousness and mood.  At the higher concentration, it tends to cause sedation.  As a patient metabolizes the drug and concentrations lower, a sudden arousal is common.  Importantly, GHB does not stop autonomic reflexes, such as smooth muscle contractions.

The videotapes demonstrated several important findings in view of the GHB pharmacology, which, in my opinion, exclude GHB as the drug causing the demonstrated findings.  Specifically, the females shown as unconscious had very little, if any, nipple erection after extensive simulation.  Also, there was no apparent anal “wink,” or contraction of the anus with peri-anal stimulation.  Both of these reflexes are impossible to control for most people.  They evidenced partial airway obstruction, with sonorous respiration for long periods, without any attempt to spontaneously correct their positions.  This is indicative of a deep sedative state.  There was also no attempt to move the left arm of one of the females, even though it was flexed and in what ordinarily would be an uncomfortable position where it stayed for a long period of time.  This is another sign of deep sedation.   One female moved during the videotape, changed her position and then reassumed a seemingly unconscious state.  This is extremely atypical for someone under the influence of GHB, even in conjunction with other drugs, because as they metabolize the drug to a less sedated concentration, they often become hyper-awake and do not go back to an unconscious state.

In summary, the autonomic suppression, deep sedation with recurring sedation after partial wakening make GHB highly unlikely as the agent causing this videotaped syndrome.

 

 

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RT News

 Whistleblower’s defense league

Published on Apr 4, 2013

As we’ve reported before, the Obama administration has reached new heights when it comes to prosecuting whistleblowers. Under Obama’s presidency, seven people have been convicted in accordance with the Espionage Act of 1917 for leaking governmental information to the public. All previous administrations combined haven’t prosecuted that many whistleblowers. Now, a group of attorneys have come together to form the Whistleblower’s Defense League to protect such individuals from legal action. One of those attorneys, Jay Leiderman, discusses why they felt it was necessary to create this group.

Click this link to see the video:

For more information on the Whistleblower’s Defense League see this post announcing the formation of the #WBDL and this post talking about the first #WBDL case, a challenge to an unconstitutionally issued subpoena in the Barrett Brown case.  

We do not have a justice system that controls economics, but an economic system that controls justice. This is the battleground, the front lines of a new civil rights movement where together we fight for the rights that give dignity and meaning to our lives.

The Whistleblower Defense League is a group of experienced attorneys, writers, artists, activists and philosophers come together to face the challenges of The American Night. We are fighting a battle to restore our Constitution against the surveillance state, prison-industrial complex and corporate power when our liberty, personal freedom and democracy are being gutted in the name of greed, war and profit. Through litigation, dissent and creation we seek to relight the flames of freedom.

The founders of a brand new organization of activist attorneys — the Whistleblowers Defense League — in recognition of what they call “a dangerous time in America,”announced Tuesday that a project aiming to form “the legal arm, the firewall” for activist whistleblowers and hackers. The Defense League is founded by attorneys include constitutional lawyer Dennis Roberts, 48-year veteran of the civilrights movement; Jay Leiderman, noted Internet rights attorney; and JasonFlores-Williams,writer and attorney. The group aims to lower the cost of legal defense for journalists and activists facing political persecution in the U.S. via “grassroots funding and support,” noted a press release. http://www.salon.com/2013/04/02/attorneys_launch_whistleblower_defense_league/ 
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Ventura attorney represents high-profile hackers in a red-hot area of the law


Read more on Jay Leiderman: http://www.vcstar.com/news/2013/mar/23/ventura-attorney-represents-high-profile-hackers/?partner=RSS#ixzz2PXSIC5oa
– vcstar.com 

By Tony Biasotti

Posted March 23, 2013

Jay Leiderman

 PHOTOS OF JAY LEIDERMAN BY TROY HARVEY, VENTURA COUNTY STAR

Jay Leiderman, a criminal defense attorney, checks his iPad for an update on a case in his Ventura office.

The client was known online as Commander X, the leader of the People’s Liberation Front, a group allied with the hacker collective Anonymous. He was suspected of engineering an attack on the county of Santa Cruz’s servers, an allegation that could land him in prison for up to 15 years.

His attorney, Jay Leiderman of Ventura, had never defended a computer crimes case. In the summer of 2011, after weeks of email and phone conversations, they decided to meet in person.

By then, Leiderman knew his client’s real name, but Commander X was keeping his identity a secret to the outside world. The client had a protocol for their meeting, and his lawyer followed it. Leiderman went to a specific street corner in a Northern California town — he won’t say which one — where he found a middle-aged homeless man sitting on the sidewalk.

Leiderman wrapped a dollar bill around his business card and dropped it in the man’s hat. Then he walked two blocks to a nearby park and sat on an empty bench.

The homeless man got up a few minutes later and joined Leiderman on the park bench. He was Christopher Doyon, also known as Commander X. The two men talked for hours.

“It feels really exciting at first, like you’re this spy lawyer,” Leiderman said in a recent interview in his Ventura office. “But then you get serious and get to work about it. It all gets normal very quickly.”

Helping shape law

Jay LeidermanToday, Leiderman is one of the top attorneys in the country for people accused of violating the federal Computer Fraud and Abuse Act, or the CFAA. It’s a red-hot area of law, the subject of recent congressional hearings by lawmakers concerned with the prosecution of programmer and activist Aaron Swartz, who was facing CFAA charges when he committed suicide in January.

Although he didn’t work on Swartz’s defense, Leiderman seems to have had a piece of almost every other headline-grabbing hacking case. This month, when Reuters social media editor Matthew Keys was indicted on charges of enabling a hack of a newspaper website owned by his former employer, Tribune Company, he hired Leiderman as one half of his defense team.

Like the rest of his computer crimes work, Jay Leiderman took the Keys case pro bono. He pays the bills doing standard criminal defense work in Ventura County, including the ongoing appeal of convicted rapist Andrew Luster’s 124-year sentence, and defending medical marijuana sellers all over the state.

Computer crimes interest him for the same reason medical marijuana does: It’s an area of the law that’s relatively new, so there are plenty of gray areas and potential test cases.

“In both cases, you’re just starting to see the law being shaped, and you can be the tip of that blade that’s shaping the law,” he said.

Leiderman, 41, started his career as a public defender and now has his own firm. He traces his interest in computer crimes to late 2010 and early 2011, when his wife was pregnant with their son. They’d stopped going out at night, and Leiderman quickly grew tired of watching television.

He started reading about the hacker collective Anonymous and its war on PayPal, Visa and MasterCard. The companies had all blocked donations to WikiLeaks after the site published its trove of leaked diplomatic cables. Anonymous retaliated with something called a distributed denial-of-service attack, slowing down the financial companies’ websites.

The U.S. government was tracking the hackers and prosecuting some of them, and that didn’t sit well with Leiderman. He thought the denial-of-service attacks were legitimate protests and should be treated the same as a march or a sit-in.

Sometime in the spring of 2011, Leiderman announced on Twitter that he would be happy to represent any “righteous hacktivists” free of charge. A friend retweeted the message to influential people in the hacker community, and the next thing Leiderman knew, he was exchanging emails with Commander X.

Crime, punishment

Because he takes the cases pro bono, Jay Leiderman is picky about which hackers he represents. In his view, they are people who are unjustly targeted by the government or who wouldn’t be able to navigate the justice system on their own.

Jay Leiderman

He thinks Doyon is an example of both. Commander X was a sophisticated hacker and online activist, the leader of the People’s Liberation Front, a group allied with Anonymous. Christopher Doyon was a 50-something homeless man whose most recent photo ID, Leiderman said, was a 20-year-old library card.

Doyon allegedly hit the county of Santa Cruz with a distributed denial-of-service attack that slowed its servers to a crawl for half an hour. He claimed he did so to protest the county’s actions in breaking up a protest of the city of Santa Cruz’s policy against sleeping in public.

“It was a symbolic crime,” Leiderman said. “A symbolic punishment would have been something like a $200 fine.”

Instead, Doyon was arrested on federal CFAA charges that carry a maximum sentence of 15 years in prison. Leiderman said it was likely that Doyon would get six months or less, but a 15-year sentence was on the table.

Doyon jumped bail and says he fled to Canada last year. In an email interview, he said the stiff potential sentence was one reason he fled, along with bail conditions that severely limited his use of the Internet.

Doyon said he felt bad about fleeing because he knew it would make things difficult for Leiderman, whom he considers a friend and “one of the greatest attorneys ever.”

“Jay has a deeply held passion for the freedom of information and cyberactivism movement,” Doyon said.

Prosecutors disagree

Jay LeidermanFederal prosecutors dispute Leiderman’s characterization of his clients as righteous protesters or harmless hobbyists.

One of Jay Leiderman’s clients, Raynaldo Rivera, pleaded guilty in October to his part in a 2011 hack of Sony Pictures Entertainment by LulzSecurity, or LulzSec.

Sony had sued a hacker for “jailbreaking” his PlayStation 3 to let it run software unapproved by Sony and publishing a guide on his website for others to do the same. LulzSec then obtained and posted the names, passwords and personal information of thousands of Sony accounts.

Leiderman maintains that Rivera, now 20, is a “good and promising man” who was manipulated by an older LulzSec leader. Rivera will be sentenced soon, and Leiderman said he hopes that his client will get probation rather than prison.

The U.S. attorney’s office agreed to seek a sentence at the low end of the possible guidelines for Rivera. Still, Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, said in an email that Rivera committed a serious crime that put thousands of people at risk of identity theft. Some people did report having their email or Facebook accounts hacked after their Sony information was released online.

“This type of conduct is more than a prank and is worthy of a federal criminal prosecution,” Mrozek said. “I’m sure that each and every person at risk of identity theft as a result of Mr. Rivera’s criminal conduct would agree.”

The law’s future

The Computer Fraud and Abuse Act was passed in 1984, and Leiderman believes that it is obsolete in many respects. Back then, Congress was concerned about a scenario like in the movie “War Games,” in which a hacker infiltrates Pentagon computers and almost starts World War III. Computer networks were rare, and someone hacking into one was presumed to have bad intentions.

Today, computers are everywhere, and the CFAA can be vague on what constitutes illegal access to one.

Even when access is clearly illegal, Leiderman and other reformers see a problem in the law’s sentencing guidelines.

Slowing down Santa Cruz County’s website carries the same maximum 15-year sentence as an attack that permanently destroys the site of a major corporation or government agency and costs it millions of dollars. In practice, a hacker who doesn’t cause much harm isn’t likely to get a long sentence, but it is possible.

Jay Leiderman

“They’re still facing 15 years, and a judge that gets pissed off can throw them in prison for 15 years if he wants,” Leiderman said.

There are signs that Leiderman’s position on the CFAA is gaining traction. A House subcommittee this month heard testimony on the law. Many lawmakers said they were opposed to any reduction in the scope of computer crimes or the severity of penalties, but others were open to changes.

The current CFAA is the one Jay Leiderman must deal with. His latest case, that of Matthew Keys, will keep Leiderman on the front pages and the airwaves. He was recently interviewed on NPR and the Huffington Post, making the case that Keys was acting as a journalist, not a co-conspirator, in his dealings with Anonymous.

A few days before Keys was arrested, Leiderman sat in his office and said he was looking for “that next great case.”

“I want to make the government stop and think about what they’re doing, and maybe change what they’re doing,” he said.

 

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Duress

Petitioner fits the applicable legal standards for duress.  “[T]he leading California case regarding the applicability of the duress defense to a charge of prison escape [is] People v. Lovercamp (1974) 43 Cal.App.3d 823[.]” (People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22.)  Lovercamp is similar to our case in a number of respects.

“Defendant and Ms. Wynashe were inmates of the California Rehabilitation Center. They departed from that institution and were promptly captured in a hayfield a few yards away. At trial, they made the following offer of proof:

“They had been in the institution about two and one-half months and during that time they had been threatened continuously by a group of lesbian inmates who told them they were to perform lesbian acts — the exact expression was “fuck or fight.” They complained to the authorities several times but nothing was done about their complaints. On the day of the escape, 10 or 15 of these lesbian inmates approached them and again offered them the alternative — “fuck or fight.” This time there was a fight, the results of which were not outlined in the offer of proof. After the fight, Ms. Wynashe and defendant were told by this group of lesbians that they “would see the group again.” At this point, both defendant and Ms. Wynashe feared for their lives. Ms. Wynashe was additionally motivated by a protective attitude toward defendant Lovercamp who had the intelligence of a 12-year-old. It was represented that a psychiatrist would testify as to defendant’s mental capacity. On the basis of what had occurred, the threats made, the fact that officials had not done anything for their protection, Ms. Wynashe and defendant felt they had no choice but to leave the institution in order to save themselves.”

(43 Cal.App.3d 823, 825)

To that end, the fact that the court was believed to be part of the urgency that caused petitioner to flee causes his case to be different than other cases about successive petitions and forfeiture of appellate rights.  (See, e.g.; People v. Kubby (2002) 97 Cal.App.4th 619.)  In that case “defendant failed to surrender for commitment as ordered. Defendant claims that he is residing in Canada for health reasons because incarceration without access to medical marijuana to treat his adrenal cancer would be life threatening.” (97 Cal.App.4th at 622.)   Kubby had access to alternate avenues of potential relief, including taking conventional medicines, or even trying to get medical marijuana in jail, but chose not to avail himself of them.  No discussion of whether Kubby was actually in a life-threatening situation because of a denial of medical marijuana was even present in the opinion.

duress

Duress can be an affirmative defense to certain crimes under certain sets of facts

From Wikipedia:

In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black’s Law Dictionary (6th ed.) defines duress as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]”. Duress is pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law and from necessity.

Duress has two aspects. One is that it negates the person’s consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act. A defendant utilizing the duress defense admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law, it was only performed because of extreme unlawful pressure.  In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted.

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Police say Mexican Mafia prison gang led crime ring in Ventura County

http://www.vcstar.com/news/2012/nov/27/one-man-led-large-prison-crime-ring-in-ventura/?print=1

Police say Mexican Mafia prison gang led crime ring in Ventura County
By Jennifer Letzer
Originally published 12:50 p.m., November 27, 2012
Updated 05:32 p.m., November 27, 2012

A 39-year-old man in an out-of-state prison directed a crime ring in Ventura County that forced competing gangs to work together and funneled money back to the Mexican Mafia prison gang, authorities said Tuesday.

Martin Madrigal was among 27 people, including two teens, who were indicted and accused of crimes such as conspiring to commit assault, extortion, home invasion, robbery and drug trafficking, Ventura County sheriff’s and district attorney’s officials said at a news conference.

All but two have been arrested, and at least 16 more are expected to be indicted, officials said. (Images: Local gang members with alleged ties to Mexican Mafia)

Edwin Mora

Jay Leiderman stands with his client, Edwin Mora during a court hearing. Edwin Mora is charged with being the lead defendant in a conspiracy to benefit the Mexican Mafia. Jay and Eddie have been fighting this case for two years and will keep fighting until a victory. Mr. Mora faces over 300 years and 10 life sentences if he is convicted.

The suspects are largely members of local gangs who worked with the Mexican Mafia, authorities said.
“These are hard-core criminal gang members. They wake up every day and try to decide where they’re going to commit crimes,” Sheriff Geoff Dean said at the news conference.

Authorities have seized 32 weapons, $36,000 in cash and a quarter-pound of heroin, officials said.
The Mexican Mafia is an organized prison gang that orders crimes such as killings, extortion and drug dealing inside and outside prisons, authorities say. The gang controls many Southern California street gangs, officials allege.

Officials said that in Ventura County, the Mexican Mafia forced rival street gangs into working together to commit violent crimes — something authorities had not seen before. Dean said the gang’s use of fear and intimidation shows how powerful it can be.

“The shot caller was at such a high level of the Mexican Mafia that they knew they had to comply,” Dean said of Madrigal.

The investigation, known as Operation Wicked Hand, began in April after investigators learned of a connection between two shootings in Moorpark and a heroin bust about the same time.

Those incidents were orchestrated by Edwin Mora, 28, a high-ranking associate of the Mexican Mafia who helped carry out orders from Madrigal, authorities said.

During the investigation, deputies thwarted crimes including two planned killings and a drugstore robbery in Ventura County, officials said.

The 35-count felony indictment from a Ventura County grand jury was returned Nov. 14, according to District Attorney Greg Totten. Arrests were later made in Oxnard, Simi Valley, Moorpark and other cities during a five-day period.

Madrigal is serving time for unrelated criminal charges at a prison outside California, which officials declined to identify. Dean said authorities “don’t want to jeopardize that part of the investigation.”

Details on how Madrigal allegedly communicated with Mora and ordered gang members to carry out crimes also were not disclosed.

Three of those indicted — David Acosta, 37, Alfred Perez, 28, and Javier Tamayo, 34 — face multiple 25-year-to-life sentences under the “three-strikes” law, Totten said.

Bail for the 27 defendants ranged from $1 million to $5 million. None has posted bail.

Jay Leiderman, Mora’s defense attorney, said he found it troublesome that transcripts from the grand jury have not been made available. Leiderman declined to comment on the allegations against his client without having seen the transcripts but said he planned to refute them.

“Investigators like to wave around the word ‘gang.’ They use it to strike fear in the heart of the community. It tends to also involve a lot of puffery and allegations that maybe perhaps aren’t 100 percent solid,” Leiderman said.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Edwin Mora was one of the 27 people arrested after a Grand Jury indictment accused them of a gang conspiracy centered around the Mexican Mafia prison gang. Photo courtesy of the Ventura County Sheriff’s department.

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