It’s the case of the Innocent Bystander!

It’s the case of the Innocent Bystander!

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So I know a guy, let’s call him Innocent, who is facing 6 years in prison for, literally, standing around doing nothing.

Innocent lives in an apartment building in Los Angeles, is (was) gainfully employed, and has had no trouble with the law in 10 years (10 years ago, he had a conviction for 1st degree residential burglary).  For his wrongdoing 10 years ago, he paid the consequences, and then turned his life around.

So a few weeks ago, Innocent was at his apartment complex, standing by the pool, watching over his son.  The front window to his apartment, which faces the pool on the second floor, was open to let in some air.  Suddenly the LAPD shows up at the small complex, looking for someone.  This someone was apparently an associate of one of Innocent’s neighbors.  Innocent did not know this person, had never heard of him, and so informed the LAPD when they asked him.  After giving the LAPD his name at thier request — which is, in itself, intrusive — Innocent went back to standing by the pool, minding his business.

About 10 minutes later, Innocent noticed that his front door was open.  When he went up to his apartment to close the door, he found that LAPD officers had entered his apartment, and were frantically searching around, looking in the closets, opening drawers, and looking under couch cushions (???).  Well, it turns out the police found some old .22 caliber rounds, rolling around loose in an open shoebox on the closet shelf.  This shoebox contained some miscellaneous tools, and other “junk” items.

Innocent was then arrested in his own living room, as he was not, due to his old felony conviction, allowed to possess any type of ammunition.  Of course, no firearm, nor any other items of “contraband,” were recovered from Innocent’s apartment.

The District Attorney’s office filed felony charges against Innocent, to wit: Felon in possession of ammunition, with one prior that is considered a “strike” within California’s “Three Strikes” sentencing scheme.   If a person has a prior conviction that qualifies as a “strike,” the Court has the authority to “double” his or her sentence on the present offense — which does not need to be a “serious or violent” felony.  Furthermore, if a person has even one “strike” prior, they have to serve 80% of thier time; there is no “half-time” credit for second or third strike cases.

So Innocent finds himself in jail, with his world turned upside down.  His lawyer keeps assuring him that the LAPD’s entry into his apartment was warrantless and illegal, and that all the evidence seized pursuant to the search (i.e., the rounds of ammunition) must be suppressed, and if said evidence is suppressed, the case against him will be dismissed.

However, the prosecutor is satisfied with thier “offer” to plea bargain: they are offering him 16 months in state prison, where he would get half-time credits.  The prosecution’s offer is only open, however, if he takes it immediately, prior to litigating the search issue.   If Innocent wants to fight the illegal search, the plea bargain goes “off the table,” and he is stuck with, potentially, a bunch of incarceration time. So Innocent is straddled with a dilemma:  exercise his right to stand up to a clearly illegal search, or serve time due to police’ bad behavior and unlawful intrusion.

This is the kind of thing that, as a Defender, seriously offends and outrages me.  It is a bizarre form of extortion, in my estimation.  I cannot, on behalf of my clients, tolerate it.  So to this type of unfair play, I say ‘stand up to it!’  In my practice, I have found that more often than not, no matter how many motions are filed and aggressively litigated (and I admit, I love filing motions — I’m always looking for the ‘technical knockout’), there is a good chance that if all else fails, a little persuasion (and, on occasion, wheedling) will get the original offer back on the table.

However, the client, the one in jail, is often scared to death, and doesn’t want to chance anything.  I have had clients tell me that they feel powerless, up against odds they cannot fathom, and frightened to challenge “the machine.”  I cannot express strongly enough that prosecutors know this, manipulate it, and even bank on it.  It is not fair.  This is not how our system is intended to work.

Those who are accused need a lawyer who doesn’t share in thier fear, and buy into it, and take the easy or frankly, the lazy way out.  Your Defender is there to fight for you, so get to it, I say, have at it.. FIGHT ALREADY!!  That’s just how I practice law; I don’t submit to extortion tactics when dealing with anyone’s freedom, period.  Which is not to say I’m unfriendly with or even angry at prosecutors: they have their job to do, and I have mine.  It isn’t personal.  But someone’s freedom?  It doesn’t get any more personal than that, and freedom should be protected always, no exceptions.

I believe that Innocent will be out of jail by October 1st, at the latest.   I’m always here to help — and to win, whenever possible — so feel free to contact my office anytime at

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