Blog Jay Leiderman Law

A client that is seeking to flee the jurisdiction must be advised of the consequences of flight — including being tried, convicted and sentenced in absentia and losing all appellate rights under the fugitive disentitlement doctrine.  See In re Ivker, BD-2004-034 (Mass. 2004): “While helping a client concoct perjurious testimony is a direct fraud on the court, counseling a client to flee deprives the court of any ability to adjudicate the charges.  Failure to appear is itself a punishable offense, and a client who follows such advice is exposed to considerably increased penalties.  See [Massachusetts] G. L. c. 276, § 82A [Failure to appear in court after release on bail or recognizance; penalty].  As such, advising a client to flee seriously undermines the administration of justice, and places the client at considerable risk.”

See also In re Axel, 757 S.W.2d 369, 373 (Tex. Cr. App. 1988) (“for an unknowing defendant to learn of his appellate rights someone must advise him of them”); see also Koons v. State, 771 N.E.2d 685 (Ind. Ct. App. 2002) and Perry v. State 638 N.E.2d 1236, 1239-1240 (Ind.Sup.Crt.1994) (both court’s explaining that it is ineffective assistance under Strickland to advise a client to flee).

It can hardly be disputed that flight from the jurisdiction at the insistence of one’s attorney is distinct from flight based upon a defendant’s own idea of absenting himself from a jurisdiction.  Indeed, the duress that led to the flight, done for financial gain, was itself a criminal act.

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

In In re Young (1989) 49 Cal.3d 257, a defense attorney was given a four year suspension for arranging bail for a defendant who had given a false name to the police at the time of his arrest. (He gave a false name because he was wanted on a robbery case where the victim had died.) The attorney had been arrested and convicted for violating Penal Code section 32, an accessory to a felony in helping the defendant avoid felony arrest. In rejecting the attorney’s arguments against discipline, the court stated:

… petitioner violated his oath and duties as an attorney under sections 6068 and 6103 when he arranged bail for his client under a false name. An attorney’s duty to maintain his client’s confidences does not extend to affirmative acts which further a client’s unlawful conduct. While petitioner admittedly had no duty to disclose that his client gave the arresting officer a false name, he had a duty not to further his client’s unlawful conduct by arranging bail for him under a false name. Petitioner’s actions misled the bail bondsman and the officers of the court responsible for bail and allowed a fugitive wanted for a violent felony to evade prosecution. We conclude that there is sufficient evidence that petitioner acted dishonestly, and that his misconduct constituted a fraud on the court. (Id. at 265.)

***

In the Matter of DeMassa (Rev. Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737, the Bar court held that the attorney, although affirmatively obligated by his duty to his client to conceal knowledge of the client’s whereabouts, crossed the line from “zealous protector of client confidences” when he allowed the client, then a fugitive, to stay at his house.

In the hypothetical problem, the defense attorney should have advised his client to appear in court as soon as possible. To acquiesce in a client’s desires to remain a fugitive would violate DR 1-102(A)(4)(5) and could result in 25 disciplinary action.

If contacted by the client and advised that he no longer intends to appear in court, it would be advisable to tell him that such a communication may not be deemed protected by the attorney-client privilege because it is a statement of intent to commit a future crime and that at some later date a court can force it to be revealed.  Charles Sevilla http://charlessevilla.com/_pdf/CPDA.ETHICS.pdf

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The probation report filed in this case was correct that petitioner was entitled to the actual credits in the amount of 743 days for the days he spent at home under house arrest, wearing an ankle monitor, during his pre-trial confinement.

In People v. Anaya (2007) 158 Cal.App.4th 608, the court stated that “Section 1203.016 authorizes a low-risk or minimum security offender committed to a county jail to participate in a home detention program if approved by the county or the court.” (158 Cal.App.4th at 611.)  Petitioner was not ordered confined under that statute.  He was ordered confined pretrial pursuant to an order of the court of appeals that had explicit and extensive confinement and custody instructions.  Anaya has two informative passages on the topic, one is 158 Cal.App.4th at 613 and the other is footnote 4.  The Second District Court of Appeal, Division 6, discusses what is and is not custody for purposes of presentence credit: “Anaya’s argument that her home detention program was as, if not more, restrictive than other types of custody for which credits have been awarded also is without merit. Moreover, the electronic monitoring agreement did not restrict her movements. Except for being at home to make a phone call once a day, Anaya was free to go anywhere in the County at any time[;]” and “The lynchpin for the receipt of custody credits is that one be “in custody.”  Citing People v. Reinertson (1986) 178 Cal.App.3d 320, 326, Anaya urges in her petition for rehearing that we have too narrowly defined the term.  Though the term “in custody” has never been precisely defined, it is evident that Anaya was not “in custody” for the purpose of receiving time credit. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922; see People v. Richter (2005) 128 Cal.App.4th 575, 579-580 [time spent in work release program in lieu of confinement does not entitle the participant to custody credit].)

credits

Affixing an ankle monitor

Anaya was also sentenced under statutes where probation was eligible and a jail sentence was not mandatory. Because Luster was sentenced under the scheme contemplated in sections 1170 and 667.6, he was subject to mandatory custody time, therefore triggering the provisions of section 2900.5 subds (a) and (f).

The Anaya court affirms the continued validity of People v. Lapaille (1993) 15 Cal.App.4th 1159 in the wake of the 1999 amendments to section 2900.5. The logic of Lapille, that petitioner was in custody, carries the day, as “custody” and not monitoring is the gravamen herein.  Petitioner was restricted even more than Lapille was.  He was confined to his home with an ankle monitor 24 hours a day, allowed to leave only for pre-arranged medical appointments and for scheduled court dates. Accordingly, he is entitled to credit for his presentence time spent on ankle monitoring.  That credit is to be day-for-day.

Therefore, under the case law of People v. Lapille 15 Cal.App.4th 1159, 1169-1170, he is entitled to credit for those days.[1]

[1] People v. Lapille 15 Cal.App.4th 1159, 1169-1170:  Section 1203.016 provides that defendants on electronic home detention must remain in the interior of their homes during hours designated by the program administrator, admit the administrator to their homes at any hour to verify compliance with the program, wear an electronic monitoring device, be subject to arrest without warrant if there is reasonable cause to believe they have violated program rules, and abide by other rules and regulations imposed by county authorities. However, such defendants may also be permitted to seek and retain employment outside the home, attend psychological counseling sessions and educational or vocational classes, and go to medical and dental appointments.

Based on the limited record before us, we conclude that defendant in this case was subject to restraints at least as confining as those placed on persons in electronic home detention programs, so that his house arrest was just as “custodial.” The trial court ordered defendant to remain at his home, except for visits to his lawyer and court appearances. At some time during his lengthy home confinement, the court gave him permission to leave his home to walk his daughter to and from the school bus. The probation department or release clerk called him to verify that he was complying with his confinement. There is no indication that defendant ever left his home to attend medical or dental appointments, or to participate in any counseling sessions. He was on complete disability due to his heart condition, and thus did not work.

credits

House arrest

Based on the above comparison, we hold that defendant in this case is entitled to custody credits for preconviction custody pursuant to section  2900.5, subdivision (a), as amended in 1991, under the state and federal equal protection clauses. The only real differences between this defendant’s confinement and that of one on electronic home confinement is that one is based at home under O.R. release, and the other on a statutory program; and that one’s location is verified by electronic tracking, while the other’s is based on telephone calls to the residence. These procedural differences are not legitimate bases for treating defendant differently from those placed in electronic home detention programs pursuant to section 1203.016. (E.g., People v. Darnell, supra, 224 Cal.App.3d at p. 809.)

 

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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.

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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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