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Defense lawyers protest lag in filing misdemeanor charges
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More from County NewsFour days before the one-year statute of limitations was going to run out, the Ventura County district attorney filed a misdemeanor charge of driving while intoxicated against Ashley Jennifer Newell of Huntington Beach.
She was surprised.
Almost nine months earlier, a judge had discharged her case because the district attorney had not charged her with a crime, even after Newell, 26, showed up at the Ventura courthouse three months in a row as she was told to do.
Far from being a unique case, however, defense attorneys, including Newell's lawyer Ronald Jackson, say it is an example of how prosecutors are exercising their ability to file charges up to one year later in a disturbing number of misdemeanor cases in Ventura County.
"This is the only county that I know that has this problem, and I do these things all over the state," Jackson said.
The Ventura-based attorney said 20 of the 32 DUI cases he is working on in the county involve waits of several months or longer for prosecutors to file complaints.
Precise figures are unavailable on how many cases are delayed and for how long, but other defense attorneys confirm the long waits and call the situation unfair.
"To require people to wait three months to 11 months to find out the answer to the basic question of whether the district attorney believes there is enough evidence to file a charge is grossly inefficient," Ventura defense attorney Brian Vogel said. "And it denies the defendant a speedy resolution of their misdemeanor matter."
A top official in the District Attorney's Office said there are various reasons for delays, including police officers not submitting paperwork in a timely manner, increases in the workload and late laboratory DUI test results.
"We file thousands of cases. We are very busy filing and reviewing cases," Special Assistant District Attorney Michael Schwartz said.
He said the District Attorney's Office is understaffed and has requested additional clerks and lawyers from the Board of Supervisors to handle cases.
"We did receive a couple of positions in the last budget cycle," Schwartz said. "We are doing the best we can with the resources we have."
Schwartz said he "sympathizes" with defendants who have had to return to court to find out if complaints have been filed.
DUI results done in a few weeks
For its part, the sheriff's Forensics Sciences Laboratory says DUI test results are done as quickly as possible. DUI test results involving alcohol usually take two to three weeks to complete, and those involving drugs usually take two to four weeks, according to Renee Artman, forensics sciences laboratory manager.
"We are trying to turn them out as quickly as possible," Artman said. "I think we are doing relatively good."
Vincent Tucci, president of the 300-member California DUI Lawyers Association, said he doesn't know whether there are delays in DUI filings by prosecutors in Ventura County, but he has defended DUI suspects in Los Angeles, Orange, Riverside and San Bernardino counties, where such charges typically are filed within two to four months.
Tucci said timely filing ensures that a defendant's memory is fresh and that crucial evidence such as witnesses and police-dispatch tape recordings are still available.
Some police departments destroy dispatch recordings after six months. Those tapes record when DUI stops were made and other crucial evidence involving DUI arrests, Tucci said.
Defense attorney Jay Leiderman, president of the Ventura County Criminal Defense Bar Association, said he has been in courthouses in at least 10 other counties and, for the most part, misdemeanors elsewhere are filed in a less time.
"No other county is this disorganized," Leiderman said. "In other counties, if they aren't going to charge you, they don't charge you. They don't play this game."
He attributed the situation in Ventura County to "just laziness and bad management" by the District Attorney's Office.
Jackson, the Ventura lawyer representing Newell, is immediate past president of the California DUI Lawyers Association. He said other counties struggle with budget and manpower constraints and manage to file charges within a few weeks or months after an arrest.
He said people suffer "anxiety and anguish" if they have to wait nearly a year to find out if criminal charges are going to be filed.
Jackson and other defense attorneys say that when no criminal charges are filed quickly and a case is delayed, the accused person has to return to the courthouse — or pay his lawyer to do that — which runs up costs for travel, legal fees, time off from work and more. Until a criminal complaint is filed, a defendant can't enter a plea.
Motion to dismiss rejected
Jackson, so far, has been unsuccessful in getting judges to toss out some of the delayed convictions on constitutional grounds, based on the right to a speedy trial.
On May 8, he argued before Ventura County Superior Court Judge Rebecca Riley, who denied Jackson's legal motion to dismiss Newell's DUI charges.
Next, Jackson asked the county Superior Court's Appellate Division to revoke Riley's decision. On June 19, without a hearing or comment, the county's Appellate Division — Judge Barry Klopfer along with Judges Harry Walsh and Kent Kellegrew — denied it.
Jackson said state law doesn't allow him to take this case to a higher appellate court.
In a similar case, Jackson filed a writ of mandate with the county's Appellate Division for another client, Christoper Reimers, who was arrested on suspicion of DUI on Jan. 19, 2007. Prosecutors filed the criminal complaint against Reimers more than eight months later, on Sept. 5.
Reimers pleaded guilty to DUI on Feb. 28, according to court records.
Jackson appealed the Reimers case based on his right to a speedy trial. That case is scheduled to be heard by the Appellate Division on Aug. 8.
To determine whether the Speedy Trial Act was violated, judges consider such things as reasons for the delays and whether those delays were prejudicial against the defendant, said Schwartz, the special assistant district attorney. "For example, have witnesses disappeared?" Schwartz said.
The judge can, in the interest of justice, dismiss the case if a violation has occurred, Schwartz said.
Leiderman said that never happens, adding that judges share the responsibility for the situation in the county by allowing prosecutors frequently to submit late criminal charges.
Presiding Superior Court Judge Colleen Toy White declined to comment for this report, citing judicial ethical concerns and pending litigation.
Leiderman noted that sometimes judges "discharge" defendants if charges have not been filed. A defendant who is discharged may then incorrectly believe that he or she isn't going to be prosecuted, he said. But prosecutors still can file complaints before the one-year statute of limitations runs out.
Being discharged simply means that a person is no longer under the court's control or under a bail, Leiderman said. If a charge is filed by the district attorney, people are notified by mail, defense attorneys say. But in some cases, they've moved away, don't get the letters and are unaware that charges have been filed, Leiderman said.
Did not act in bad faith
In the Newell case, Jackson said his client was arrested on suspicion of driving while intoxicated Nov. 19, 2006.
She was issued a Notice to Appear on Dec. 20, Jan. 21 and Feb. 21, at which time she was "discharged" by a judge. The district attorney filed a criminal complaint Nov. 15, 2007.
Schwartz said that he understands how delays can burden defendants, but that misdemeanor charges are serious and are going to be filed once the evidence is gathered.
In a petition opposing the motion to dismiss, submitted to Riley in the Newell case, the district attorney said that prosecutors did not act in bad faith, and that the filing of a complaint within a year didn't constitute a trial delay.
Posted by bob100 on July 7, 2008 at 5:57 a.m. (Suggest removal)
Another classic Raul Hernandez story trying to expose the big conspiracy where none exists. Instead of looking into the reasons that the board refuses to staff our DA's office at appropriate levels, or doing a comparison story about the staffing levels at other DA offices, Raul complains that defendants are hoping to get away with their crimes because the DA is overburdened - then he cites a bunch of defense attorneys complaining that the DA is actually properly filing within the statute of limitations as allowed by law (the judges agree and will not dismiss the cases of these guilty defendants), and still tries to make the DA look bad for doing their job. Have you looked at how long the cases are dragged out by the defendants once they are filed? It is not the DA who does that.
Posted by CommandoAngel on July 7, 2008 at 6:14 a.m. (Suggest removal)
1. " Leiderman said that never happens, adding that judges share the responsibility for the situation in the county by allowing prosecutors frequently to submit late criminal charges." The charges are not "late" if filed within the one year statute of limitations. Nice try.
2. Defendants are told every day in court that their case being discharged means it may still be filed in the future and the judge explains it very clearly. Nice try.
3. Defense attorneys are just depressed (see earlier story) so you have to take what they say with a grain of salt.
Posted by goldeneye on July 7, 2008 at 6:33 a.m. (Suggest removal)
The Star is clearly out to get Ventura County law enforcement. I would like to see the Star do an article on the way that defense attorneys pimp themselves out for a living. Jay Leiderman and his band of misfits make their living by accepting the money of child molestors, murderers and drunk drivers. Of course they are going to bash out law enforcement agencies.
You could rape a child or kill a merchant in a robbery and for a fee a sleezy defense attorney will come in and be your friend and tell a judge that you really are a nice guy that just had a bad childhood.
Posted by JesusMalverde on July 7, 2008 at 6:43 a.m. (Suggest removal)
This story is shocking even by the Ventura Star standards. Raul Hernandez has taken an anectdodal problem and has done absolutely no research. How do we know that other counties are more efficient? Well...because Ron Jackson and Jay Leiderman say so. How do we know this is even a problem? Jay Leiderman and Ron Jackson say so, even though the Court of Appeal doesn't think so.
If you are even the slightest bit inclined to believe this is anything but a DA hit piece, look at Leiderman's quotes. He cites bad management and lazyness on the part of prosecutors. Jay Leiderman knows absolutely nothing about the way that these cases are managed. Being a defense attorney does not make you an expert as to the management practices of the DA's office. These are prosecutors that are SEVERELY understaffed, overworked and paid at an inferior rate compared to much of the state.
The Court of Appeal does not think there is anything wrong with the filing practices of the DA's office.
Hey Raul, maybe the National Enquirer is hiring. They like to write one seded stories based on rumor and insinuation. You sir, lack any form of credibility or integrity in your reporting. The only lazyness is in your inability to do research and the bad management practices lie with whoever allows you to get away with this.
Posted by turbochrg01 on July 7, 2008 at 8:48 a.m. (Suggest removal)
I have a friend that was pulled over for DUI, arrested and then released after sobering up back in December 07. He still has yet to be charged in a court of law. I think they should have three months to get the charges in or throw them out. They person still has there license taken away from the DMV and yes they must carry SR22 insurance for three years. So get it together or drop it.
Posted by cslaurie on July 7, 2008 at 9:08 a.m. (Suggest removal)
Justice delayed is justice denied.
Posted by cslaurie on July 7, 2008 at 9:13 a.m. (Suggest removal)
And the basis:
Magna Carta, clause 40 of which reads, "To no one will we sell, to no one will we refuse or delay, right or justice."
Posted by bbofvta on July 7, 2008 at 11:10 a.m. (Suggest removal)
Did I miss the part where the defendant, or his/her attorney needs to agree to a continuance for these things to be put off? I have seen many instances of defense attorney's asking for a delay due to an alleged conflict in schedules, or other reasons, and the court just allows it to happen. The defendant has a say in how his trial will happen...speak up, or quit crying!
Posted by rebel123 on July 7, 2008 at 12:06 p.m. (Suggest removal)
I find it appalling that cases for drunk driving can take this long to adjudicate! How many people are then turned right back out onto the streets to drive drunk again? There's just no excuse for this sort of delay.
Posted by PabloE on July 7, 2008 at 12:14 p.m. (Suggest removal)
Did someone just quote the Magna Carta? Didn't we fight a war and the United States and the Constitution prevailed?
The appelate courts have already determined that there is nothing unconstitutional about this (you see in our country the constitution prevails not the Magna Carta). Someone else suggested that there should be a three month statute of limitations. Nice suggestion, but there is already a statute of limitations for all misdemeanors and it is ONE YEAR. There is no issue or story here. If you think that he statute is too long then write your legislature. Don't criticize the DAs Office for using the time limits that they have been given.
Posted by Comments on July 7, 2008 at 1:12 p.m. (Suggest removal)
I absolutely DO think that there's a story here and I'm glad that the Star reported it to us. I'm not really that interested in the defendants so much, I'm more concerned about what seems to be some gross inefficiencies within the DAs office. Yes, they have up until a year to file a case. Why it's a year, I have no idea, but I'm going to assume that it was set at that so that prosecutors would have time to investigate cases that needed investigating. In the case of DUIs there's not much that needs to be investigated. The tox screen is either positive or negative. Period. According to the person in charge of running those analyses that takes up to 4 weeks. As a citizen here and a driver I'm absolutely appalled that drivers arrested for DUI haven't been handled in a reasonable time frame. And by reasonable, I agree that 3 months seems reasonable.
Posted by bbofvta on July 7, 2008 at 1:25 p.m. (Suggest removal)
We should let the Veracious1 run our County. From his stool at the Red Cove Inn, he can see all of the gross errors committed by the District Attorney, the Courts, the local police, etc. He sure claims to have significant proof for all of his claims, I think. I assume that when he uses all capital letters, it is because the truth is there and needs to be known.
So far, not one of the letters damning the prosecutors has made a valid, legal point. If you don't like the one year statute of limitations, get it changed!
If you think that the DA is intentionally dragging these cases out for some kind of twisted sense of humor...get a life!
Posted by lunachick4life on July 7, 2008 at 1:55 p.m. (Suggest removal)
Sounds like the message is if you don't want to be tormented by VC DA's office, don't drink and drive within this jurisdiction. They have found a very efficient and viable method for causing financial and emotional distress that one could perceive as an unintended deterrent.
Posted by cslaurie on July 7, 2008 at 2:04 p.m. (Suggest removal)
Pablo, yes in fact we fought a war with England and yes our constitution prevailed. However our common law derived from England which is anchored by the Magna Carta.
For example Mexican common law is derived from French common law.
Here is a little something to help you out when you get confused:
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law;[4] for example, U.S. courts have inherited the principle of stare decisis.
English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception" statutes which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[5] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[6] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form[7], such as the heightened duty of care traditionally imposed upon common carriers.[8]
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[9]
Posted by srjsr on July 7, 2008 at 2:17 p.m. (Suggest removal)
Your missing the point. If you don't drink and drive, you won't have to deal with the delays that accompany a bad decision to start with.
Posted by Ms_California on July 7, 2008 at 2:26 p.m. (Suggest removal)
Did she honestly think she wasn't going to be convicted for a crime she committed? Especially DUI!? Honestly, if you do the crime and get caught expect to pay for your actions, even 4 days before the limitations are up. I don't feel sorry for this girl not one bit!
Posted by cslaurie on July 7, 2008 at 2:28 p.m. (Suggest removal)
It has nothing to do with drinking and driving. It has to do with the basic fabric of our law. You have the right to a speedy trial.
Let's say you are arrested for misdemeanor carnal knowledge of your sister and are innocent. Should you stay under threat of prosecution for a year or is it your right to be tried and clear your name?
Posted by PabloE on July 7, 2008 at 3:17 p.m. (Suggest removal)
Of all the possible hypotheticals you could come up with THAT is what you chose? EWWWW.
Anyway, once again we are back to the staute of limitations complaint. This is has nothing to do with the DAs office.
Posted by BigJake on July 7, 2008 at 3:28 p.m. (Suggest removal)
Again, proof, never go for that waiver for a speedy trail. If you are innocent, forget the defense attorney's whining, go to trail! It is the DA that has to prove the case, the defense just has to sow the seed of reasonable doubt.
If you are guilty, go for a deal. But never waive speedy trial. If your defense attorney cannot make the gig, some defense attorney can.
Posted by JesusMalverde on July 7, 2008 at 7:10 p.m. (Suggest removal)
Why don't we try and stay on point.
This is not a story about individual cases where the statute of limitation was blown. I guarantee that happens very, very infrequently. When it does, it is usually due to a number of factors and laziness and bad management are pretty low on the list.
What this story is attempting to address is the delay that comes at the filing stage of a case. Delays are the result of many, many factors. What is not addressed in this story is an accurate report of the number of cases where this is an issue. Jackson and Leiderman try and assert a claim that this happens routinely....really??what are the numbers? They also suggest that the delay is longer in Ventura....really? What are the numbers?
Further, I agree with other people who say that this is about the statute of limitations. Would this be a story if it went like this "the District Attorney is using the time allotted to them by law to make filing decisions..." Where would the story be?
Ron Jackson and Jay Leiderman are private attorneys who make money through publicity. Nothing produces publicity faster than outlandish accusations and insinuations told to an overzealous reporter who is not interested in hard to do research.
Posted by JesusMalverde on July 7, 2008 at 8:37 p.m. (Suggest removal)
I am not the one that wrote a story alleging that the DAs office is or is not doing their job. I don't have the burden or responsibility of doing any research because I did not make any allegations.
Also, I have not been defensive. What I continue to point out is that this story contains no factual basis; it is nothing but an unfounded allegation made by attorneys who will profit from such an allegation.
As for your assertion about the property being held, a simple motion to return property solves that problem if it is being illegally held as you insinuate. If the property is being legally retained then you have no argument.
There are so many variables as to why cases are dlayed at the filing stage. It is not as cut and dry as a blood alcohol result. The bottom line is that if it takes the DAs office the entire statue of limitations to do a thorough review of the case and also to work within the resources that the county provides, then that is the way that it is. The statute exists and it is being utilized. If you do not like it then contact your legislature and see how far you get. Unfortunately resources dictate how long it takes to get a case filed. Until I see some proof in the form of actual numbers that Ventura is somehow less efficient than other places, I am not buying it. I refuse to accept the word of professional mouthpieces. I am also not willing to assign blame to the prosecutor's office when the court of appeal has found nothing wrong with the system.
Posted by ironwoman on July 7, 2008 at 8:52 p.m. (Suggest removal)
Jesusmalverde- I see your point and it's valid. YOu are not being defensive, just making good points.
Posted by JesusMalverde on July 8, 2008 at 7:05 a.m. (Suggest removal)
Actually as far as efficiency goes, the conviction rate in Ventura County ranks among the top in the state. Ventura County is also consistently ranked as one of the safest counties in America. While that is not entirely a reflection of law enforcement because this county is filled with primarily good people, it does say something.
The Court of Appeal is not a cop out. They are charged with looking at the law and making a determination as to whether laws have been broken. The bottom line is that they have not made a determination that laws have been violated or that any suspect's rights have been compromised in the cases that have been reviewed by the court and cited by the defense attorneys in this article. I understand that one of the cases has not been taken there yet.
The point I am trying to make is why are you so sure that there is a problem when the author did not cite a single statistic in supoort of that position? You call me defensive, but you seem awfully willing to swallow whatever the newspaper feeds you. It is apparent that you have an axe to grind with the DA's Office. I can't believe that you aren't asking the same questions that I am. If there is a sytematic problem that should be addressed, then so be it.
My whole point in commenting on this story was the lack of research that was done before allegations were printed. You have taken the assumption that there is a problem and turned it into a fact. All I am saying is that I am not sure if that problem exists. A Superior Court Judge disagreed as did the Court of Appeal. That makes me think that the problem has been overstated or there is no problem.
I will continue to assert that if the story read "DA uses time allotted to them by law to review cases..." there would be no story. You cannot dispute that.
Posted by hayetaus on July 8, 2008 at 11:57 a.m. (Suggest removal)
"Guilty 'till proven innocent". Ventura County's Motto. Funny, lab results from the blood tests always seem to "disappear" when a local cop gets arrested for DUI. Is the DA's office understaffed ,how come no one is concerned with the public defenders office? DUI's are one of Ventura County's best sources of income so it is no surprise to me that Greg Totten wont allow one to slip between the cracks (if there were any cracks). Ventura County is famous for dragging out criminal proceedings, they just want people to plead guilty and pay the fine(s),dragging proceedings out to their legal limit just costs the defendant more $$$ and heartache. How is it possible for the accused to get a fair trial before judges like Rebecca Riley, Barry Klopfer and Kent Kellegrew? They are all former ADA's!!! Why don't you just rip this blindfold off Lady Justice and drop Greg Totten on one side of the scale!!!
Posted by BillyBob on July 8, 2008 at 8:04 p.m. (Suggest removal)
The DA's office understaffed??!!! The DA, Sheriff and Probation get the lion's share of the County budget, and they have the gall to blame this on understaffing?? That is ridiculous.
Based on the history of this DA's office, my guess would be that they wait to the last minute, hoping the defendant will plead guilty, thereby saving them a trial and padding the stats.
Posted by deweydavis on July 8, 2008 at 8:15 p.m. (Suggest removal)
I don't see the problem here. The people are allowed 1 year to file a complaint as allowed by law before the statute of limitations runs out, and as long as it is filed within the time period it is still "swift justice". Defendants shouldn't be allowed to walk free just because they didn't receive a complaint within the first 3 months . I thought this story was extremely biased on the side of the defense attorneys and not enough interviews were conducted with the district attorney nor did it offer any comparisons with other counties which was one of the arguments by a defense attorney in the story...very poor reporting.
Posted by WalkAbout on July 9, 2008 at 10:24 a.m. (Suggest removal)
It is very significant that this story lacks any statics to validate the claim that Raul Hernandez is asserting. This is yellow journalism; sensationalize the story to stir up controversy even when there is not a real issue, because it sells papers. If there is a problem, then the actual numbers will support the claim. But since there are no real factual numbers, then all I can do is assume that 1) they were intentionally left out because they do not support the premise or 2) Mr. Hernandez does not know how to do basic journalistic research.
Posted by NeaNea2 on July 9, 2008 at 4:09 p.m. (Suggest removal)
Posted by CommandoAngel on July 7, 2008 at 6:14 a.m. "Defendants are told every day in court that their case being discharged means it may still be filed in the future and the judge explains it very clearly. Nice try."
That's crap. I was just dismissed from the judge and I thought that meant I was free and clear. Absolutely no explination of what "dismissed" means. I didn't know until reading this article.
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