Law Office of Tim Warriner

Finding a Certified Legal Specialist

The State Bar of California Board of Legal Specialization provides a helpful website to help the public find an appropriate legal specialist--www.californiaspecialist.org. In addition to criminal law, the Board of Legal Specialization certifies specialists in appellate law, bankruptcy law, estate planning, trust and probate law, family law, franchise and distribution law, immigration and nationality law, taxation law, and workers' compensation law. Feel free to contact me if you would like more information about Certified Legal Specialists.

New Mortgage Fraud Indictment--Eastern District of California

The Eastern District U.S. attorney in Sacramemnto, California, announced yesterday the unsealing of a 48 count indictment charging 10 defendants with conspiracy to commit mortgage fraud, mail fraud, and making false statements in mortgage applications to federally insured banks. Click here to see the U.S. Department of Justice press release.

This indictment is the result of investigation by the Financial Fraud Enforcement Task Force. It demonstrates the continued focus by the federal government on prosecuting mortgage related offenses.

Certified as Criminal Law Specialist by the State Bar of California

I am certified by the State Bar of California Board of Legal Specialization as a Criminal Law Specialist. Certified criminal law specialists have passed a rigorous examination process, and have demonstrated a high level of experience and competence in handling criminal matters. They have passed a peer review process as proof of their high level of performance as criminal defense counsel. The State Bar Legal Specialist program is akin to the board certification possessed by specialist physicians. Click here to locate a certified specialist.

Challenges to 18 U.S.C. 924(c)--Firearms During and In Relation to Drug/Violent Crime

The United States Supreme Court is considering how to apply 18 U.S.C. 924(c), which increases the punishment for firearms possessed during and in relation to drug crimes and crimes of violence. At issue is whether the law, which provides for mandatory minimum sentences, was designed to enhance a sentence for a drug crime or crime of violence having a greater minimum sentence. The cases to watch are United States v. Abbott and United States v. Gould. Recently, Judge Wanger in the Eastern District of California elected to run a sentence for the 18 U.S.C. 924(c) concurrent to the 10 year mandatoroy minimum for marijuana possession. We will have to see where the Supreme Court comes down on this issue.

Sacramento Area Mortgage Fraud Investigations

With the financial crisis underway, Sacramento has become a hotbed for mortgage fraud investigations. Our local United States Attorney's Office is actively investigating mortage fraud. The U.S. Justice Department has formed more than 40 mortgage-fraud task forces nationwide as prosecutors and investigators struggle with a flood of mortgage-related cases. The FBI reports that its mortgage-fraud caseload has more than doubled in three years to about 1,600 investigations. About 200 FBI agents are assigned to the cases, up from 120 a year ago. The cases are also investigated by Treasury Department agents and California Department of Real Estate investigators. Click here to view the United States Department of Justice press release concerning these investigations.

The cases are charged as conspiracies under 18 U.S.C. 371, alleging bank fraud, wire fraud, mail fraud, and money laundering. The cases are complex and document intensive. It is essential to retain a qualified federal defense attorney if contacted by law enforcement, or if there is any concern that an investigation is under way. Please contact me if you have any concerns about a possible investigation, or if you have been contacted by law enforcement. Keep in mind that many persons considered "witnesses" potentially face exposure to criminal prosecution, so retaining counsel is of utmost importance.

NPR Segment on Mortgage Fraud: Complicity of Lenders

The Great Pool of Money is a terrific and entertaining commentary on the mortgage crisis. The piece suggests the complicity of the lending institutions in causing the crisis. As an attorney representing mortgage fraud defendants, the piece suggests a line of cross examination: the lending institutions encouraged the practices that caused the bad loans in an effort to sell more mortgage backed securities. The hour long segment was aired on the NPR program, This American Life. A shorter version of the segment is also available. Click here to listen to this wonderful NPR segment.

US Attorney Ordered to Clean and Return Bong

After the government dismissed a simple possession charge against a patient, the government objected to the patient's request that his bong be returned on the ground that it contained residue. The magistrate judge ordered the US Attorney's Office to clean the bong before returning it. Click here to read more about this story, first published in the Eastern District blog.

Proposition 9: Some Challenges Ahead

Proposition 9, the Victims' Bill of Rights Act of 2008, was just passed by a majority of the electorate. The goals of the proposition are important, and crime victims deserve all of our support and respect. However, the proposition creates dramatic change in the criminal justice system that may undermine the object of the initiative.

The Proposition does three things: it overhauls the parole hearing system by undoing the right of inmates to have parole considered on a yearly basis; it requires that institutions not release inmates early due to overcrowding by directing the Legislature to ensure sufficient funding; and it creates a series of enforceable victims' rights. This article discusses the latter of the Proposition's objectives.

The Proposition lists 17 rights it designates as "personally held and enforceable" by "victims." The term "victim" is defined to include persons harmed by financial as well as violent crimes, and includes family members of direct victims. The Proposition contemplates that victims can be represented by legal counsel during all proceedings.

Among the victims' rights created are the rights: to be protected from the defendant; to have the safety of the victim considered in fixing bail; to refuse to be interviewed by a defendant's attorney; to be notified concerning court appearances, and to discuss the case with the prosecutor; to a "speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings"; and to receive a copy of the probation report.

The three most significant rights created by the Proposition are the rights to refuse to be interviewed, to participate in the legal proceedings, and to prevent disclosure of information and records to defense counsel. I will discuss these rights individually as the represent the most significant change to the justice system.

Right to Refuse Interview. The Proposition states that victims have the right "to refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents."

Existing law provides that victims and witnesses have the right to refuse an interview by a defense investigator, or to set conditions for the interview. The Proposition requires that all "victims" be notified of this and other rights. Presumably a "victim advocate" associated with the prosecutor's office will also inform the victim of the right not to talk to the defense attorney or defense investigator. Simply providing this information will effectively allow the prosecutor to shut down all contact between the "victim" and defense counsel, and crime victims will take it as a suggestion that they should refuse to be interviewed. Persons claiming to be crime victims will be dissuaded from speaking with defense counsel. The victim will be able to get a court order that defense counsel not attempt to contact the victim or the victim's family. The result will be the court sanctioned dissuading of victims and witnesses from speaking with defense counsel.

There is simply no need for this right. Presently, a defense investigator must identify him or herself as a representative of the defendant when speaking with victims or other witnesses. Victims or other witnesses may not be harassed by an investigator and can refuse to speak, should they choose to do so. It would seem that the purpose of making the right enforceable by court order is to block defense counsel from contacting victims and witnesses. Interviewing all witnesses, including victims should they be willing to meet with an investigator, is essential to effective legal representation. Important information is obtained by having an investigator interview a so called "victim" as often the police interviews fail to address relevant facts and biases. This right will protect the lying or exaggerating crime "victim" from legitimate questioning.

]]> Right to Participate in Legal Proceedings. The Proposition provides for a victim's right "to be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue."

This provision allows victims individually, or with the assistance of a representative such as a "victim advocate" or lawyer to actually participate in the legal proceedings. Victims would be able to state their opposition to a plea bargain, and could potentially influence a case to proceed to trial in lieu of plea. This could have a devastating effect on the victim as the case may not be won at trial.

The right of victims to speak at sentencing or provide a victim impact statement pre-existed the Proposition, and the courts handled the victims' input well. The Proposition effects significant change in that victims have been given a right to participate even before an individual is convicted. Potentially, victims would have a right to be heard during trial, and could object to trial rulings by the judge, as trial is arguably a proceeding wherein the right of a victim is at issue. Legal proceedings will potentially have three parties entitled to direct participation: the prosecution, defense counsel, and the victim or victim's counsel. There is a potential for the victim's counsel and the prosecution to disagree about trial strategy, and for victims to disrupt proceedings. As much as we should care about crime victims, a court's rulings and other decisions must not be influenced out of sympathy to a victim. To do so undermines the constitutionally governed trial process, and threatens to undermine the result of the trial. Guilty verdicts could be challenged as unconstitutional as a result of the improper influence of a victim on the proceedings to determine a defendant's guilt. Victims should not risk potentially undermining the legitimacy of proceedings.

The Proposition's "findings and declarations" claim that "an inefficient, overcrowded, and arcane criminal justice system has failed to build adequate jails and prisons, has failed to efficiently conduct court proceedings, and has failed to expeditiously finalize the sentences and punishments of criminal wrongdoers." However, the right of victims to participate in proceedings renders the justice system even more "arcane," threatens to make the proceedings even more complex, and threatens the finality of the result should a defendant be found guilty.

Right to Prevent Disclosure of Information. The Proposition provides that victims have the right "to prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law."

Existing law prohibits defense counsel from giving records to the defendant that reveal a victim's or witnesses' address, telephone number, or other confidential information. Presently, if a defendant requests a copy of the police reports, defense counsel must redact confidential information from the reports. One effect of this right would be that the prosecutor must now redact confidential information from all investigative or other reports. This will create a delay in getting the information needed to prepare for trial and will place a huge strain on underfunded prosecutors offices. This right seems to prohibit the giving of a victim's contact information from defense counsel even if the victim has not requested that defense counsel not attempt to interview him or her. Thus, both the legitimate as well as the lying victim is shielded by this provision.

The second part of this provision prohibits disclosure of "confidential communications made in the course of medical or counseling treatment." Reviewing medical records is an essential part of defending any violent crime. Often the statements in the records, as well as the medical information itself, are exonerating. This provision shields all persons considered "victims," both credible and lying individuals. It is uncertain how this provision will be handled by the courts. If a person's medical condition is at issue, a defendant's attorney must be able to review all relevant records. Also, the medical and other "confidential" information could be deemed Brady material in that it is exonerating. Prosecutor's offices will then have to disclose the information or face having the conviction overturned.

Conclusion
The courts will be challenged in implementing the many victims' rights created by Proposition 9. The Proposition further complicates the criminal justice system. Many of the rights, when applied in individual cases, will conflict with a defendant's constitutional rights. Thus, a victim's enforcement of his or her rights may actually threaten the finality of the result in the event of a conviction. This result totally undermines the purpose of the Proposition. Victims' rights groups only have good intentions. However, poorly drafted laws such as Proposition 9 do nothing to improve the criminal justice system. Victims' rights groups would be better served by challenging and confronting specific elected District Attorneys or judges who fail to give crime victims the fair treatment they deserve.

Upcomming Supreme Court Arguments

The Supreme Court will hear argument on Tuesday (10/14/08) in Oregon v. Ice (07-901). The issue in Ice is whether the Sixth Amendment requires that facts necessary to impose consecutive sentences (other than prior convictions) must be found by a jury or admitted by the defendant.

On Wednesday (10/15/08) the court will hear argument in Waddington v. Sarausac (07-772), and Hedgpeth v. Pulido (07-544). Both cases address federal habeas review of state jury instructional issues. Waddington involves whether federal courts on habeas review must accept state court determinations that jury instructions correctly explain state law regarding accomplice liability. The issue in Hedgpeth is whether federal courts on habeas review may determine erroneous jury instructions on which the jury may have relied to constitute structural error requiring reversal.

Baggy Pants--a Fashion Statement not Probable Cause

In In re Enrique S., California's Fifth District Court of appeal found an insufficient basis to conduct a patdown for weapons. A .pdf copy of the Court of Appeal's opinion can be downloaded by clicking here. The arresting officer asserted that the juvenile subject's baggy clothing made it possible for him to hide a weapon, but could not articulate any reason why they believed the minor actually possessed a weapon. A search of the minor yielded an illegal knife. While the juvenile court correctly noted that "90 percent of teenagers wear baggy clothing," the denial of the suppression motion was found to be error by the Court of Appeal. I was pleased that the Court of Appeal agreed with my reasoning. This is another example of why suppression motions should be brought at the trial level.

My Office Has Moved

My office will now be located at 813 6th Street, Suite 450, Sacramento, California, 95814. The telephone number is the same. The fax number is (916) 441-0970. The office is in the same suite as Clyde Blackmon's firm, Blackon & Associates. It is located in the Hall of Justice Building, which is across the street from the Federal Courthouse, and adjacent to the Superior Court and jail. This is a convenient location for my clients, and I look forward to working alongside my colleagues in the defense field.

Book Review: The Innocent Man

John Grisham's The Innocent Man is not only a great read but will help educate the public about the death penalty and the causes of wrongful convictions. This is Grisham's first non-fiction book. It is an engaging account of the wrongful conviction and death sentence of Ron Williamson--the innocent man. Grisham forces you to confront the suffering and injustice experienced by Mr. Williamson. His account of the terrible conditions on Oklahoma's death row is remarkable. The story is told through the point of view of Ron Williamson, which forces the reader to live through the awful experience. Grisham's books are, of course, widely read. I'm sure many of who will have read the book will become jurors, or at least informed citizens who will demand safeguards for the accused, and who will question the propriety of capital punishment.

Curriculum Vitae

Tim Warriner, Attorney at Law
Hall of Justice Building
813 6th Street, Suite 450
Sacramento, CA 95814
(916) 443-7141

EDUCATION
Santa Clara University School of Law, J.D., 1993
University of California Los Angles (“UCLA”), B.A. (political science), 1989

BAR ADMISSIONS
California
State Bar of California (admitted in 1993)
Certified Criminal Law Specialist
Criminal Law Section Member

Federal
United States District Court, Northern District of California (1993)
United States District Court, Eastern District of California (1994)
United States Court of Appeals, Ninth Circuit (1994)
United States Supreme Court (2006)

Other States
District of Columbia Court of Appeals, Washington D.C. (1995)
Supreme Court, State of Colorado (1995)
Supreme Court, State of Minnesota (1995)

CERTIFICATIONS
Criminal Law Specialist, certified by the State Bar of California

LEGAL EXPERIENCE
Criminal Justice Panel, Eastern District of California

Conflict Criminal Defenders, Sacramento County

Central California Appellate Project (“CCAP”)

Sutter County Public Defender – Deputy Public Defender

Sacramento County Superior Court, Law & Motion Department – Judicial Extern/Law Clerk

California Court of Appeal, Third Appellate District – Judicial Extern/Law Clerk

Ellison Wilson Advocacy - Lobbiest, Legal Counsel

Shell & Campbell, Law Offices of Dianne Campbell – Civil Practice

MEDIA CONSULTING
Health Care Purchasing News

Univision, Sacramento, California

Sacramento Bee

National Law Journal

Washington Post

PROFESSIONAL ASSOCIATIONS
National Association of Criminal Defense Lawyers ("NACDL")

California Public Defender's Association ("CPDA")

Criminal Law Section, State Bar of California

Sacramento County Bar Association

TRAINING PROGRAMS
Sixth District Appellate Program, Spring Appellate Seminar (2010)

Homicide Defense Seminar, CPDA (2007, 2008, 2009)

California Appellate Project 2009 Fifth Annual Capital Appellate Training

Federal Defender Training Group, “Winning Strategies,” Boston, Massachusetts, May 20-22, 2004

Federal Habeas Corpus Practice, Office of the Federal Defender, Sacramento, California, 2007

Demystifying the Great Writ, Sacramento, California, November 15-16, 2003

CACJ/CPDA Capital Case Defense Seminar (“Death Penalty Conference”), Monterey, California, 1998, 1999, 2002, 2003, 2007

California Attorneys for Criminal Justice, “Tips from the Masters,” San Francisco, California, December 14, 2002

NORML Key West Criminal Defense Seminar, Key West, Florida, 2001

Federal Defender Training Group, “Winning Strategies” (technology in the courtroom), San Diego, California, 2001

Western Institute of Trial Advocacy, Laramie Wyoming (one week program), June, 2000

National Criminal Defense College (“NCDC”), Trial Practice Institute, Macon Georgia (two week program), June, 1999

Federal Defender Training Group, “Winning Strategies,” San Francisco, California, 1998

Central California Appellate Program, “Searching Out the Issues,” 1999

Criminal Defense of Immigrants, Law Offices of Norton Tooby, 1998

California Judge’s Association, Oxford England Program (two weeks), 1996

PUBLISHED CASES
People v. Muldrow (2006) 144 Cal.App.4th 1038

United States v. Mayo (9th Cir. 2005) 394 F.3d 1271

In re Nancy C. (2005) 133 Cal.App.4th 508

In re Bryant R. (2003) 112 Cal.App.4th 1230

Victory in Brendlin

In a 9-0 decision, the Supreme Court in Brendlin v. California upheld the right of an automobile passenger to assert the violation of his/her fourth amendment rights. I represented Mr. Brendlin at the trial level where I litigated the search and seizure motion. Attorney Beth Campbell represented Mr. Brendlin before the Supreme Court. She did an excellent job fielding the mind bending questions of the justices at oral argument.

Hoping for a Good Result in Brendlin

In People v. Brendlin, now pending before the United States Supreme Court, at issue is whether automobile passengers have standing to contest an illegal automobile stop. I represented Mr. Brendlin at the trial level before the Sutter County Superior Court. Attorney Beth Campbell from the Central California Appellate Project argued the case before the Supreme Court. The oral argument transcript can be viewed online at the Supreme Court website, www.supremecourtus.gov. The questioning was very interesting. Most people I have talked to agree that no passenger would ever feel free to walk away from a car after a law enforcement stop.