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THOROUGH INVESTIGATION GETS CLIENT’S CASE DISMISSED

What happens when a teacher has his class disrupted by an unruly student who dislikes the teacher, calling him names to the student’s friends and making obscene gestures and gyrations behind the teacher’s back?

The teacher is charged with felony child endangerment!

Scott Wendt is a committed, extremely popular junior high math teacher. He considers teaching children his calling (actually it is his second calling—he previously was a minister).

One day when the student had been particularly disruptive and disobedient, the teacher led him back to his seat, holding him by the forearm. The student claimed that the teacher’s action had resulted in him breaking a bone in his hand. The bone which was broken, the scaffoid bone, is a small one in the hand that almost always breaks only when one braces for a forward fall by extending the hand downward.

Mr. Wendt asked Kirk McAllister to defend him. The investigation began immediately.

All the students in the class were interviewed. School records were obtained, with the authorization of the judge who was to hear the case.

A P.E. teacher had a specific recollection of the student in P.E. class in the period following Mr. Wendt’s math class. The student fully participated in P.E., even doing push-ups!

Another former teacher of the student was found who had made extensive notes about the young man. She was troubled by his constant lying about others hitting him, and made her notes because she was afraid that he would lie about another student, or even a future teacher! She did not know Mr. Wendt.

Past students of Mr. Wendt were lined up to be character witnesses to his caring, peaceful nature.

The assumption in the courthouse was that the District Attorney would offer a misdemeanor as a way for Mr. Wendt to avoid a felony.  Mr. Wendt was adamant that he was not going to take a plea bargain—he knew he was innocent.

Within the time prescribed by law, Mr. McAllister provided the prosecutor with the evidence that would be presented to the jury in his client’s defense.

The day before jury selection was to start, the District Attorney dismissed the case.

Scott Wendt is now back in the classroom, following his passion—teaching the children.

(Mr. Wendt’s name and photograph appear with his express permission.)
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“THE BODY-CAM IS THE THING, WHEREIN….”

Many police departments are equipping their officers with body cameras.  This is widely viewed as an advancement in criminal justice, affording a measure of protection for both the peace officer and the public.  It is becoming so commonplace that one must resist the urge to draw adverse conclusions when an agency digs in its heels and refuses to use them.

Kirk McAllister was hired to defend a woman charged with domestic violence.  He substituted in for her previous attorney, who had set the trial three weeks away.  After getting the police reports, the first thing Mr. McAllister did was secure the body camera videos and begin studying them.

The trial began August 15, 2016.

While cross-examining the arresting officer Mr. McAllister asked, “Describe my client’s injuries.”  He answered, “She wasn’t injured.”  Next he asked, “Didn’t you say you would document her injuries?”  The officer again said, “No, she wasn’t injured.”  Finally, Mr. McAllister asked, “Didn’t you offer to photograph her injuries?”  Once again he answered, “No. She wasn’t injured.”

The next day Mr. McAllister played portions of the body cam video for the jurors.  The most dramatic one showed the client sitting in the back of the patrol car,  sobbing (she had never been arrested before).  She pointed to her left arm and said, “What about my injuries?”  The same officer said, “Don’t worry, ma’am. I will document them. I’ll have photographs taken of them.” In fact no photographs were taken of her injuries.

The jury found Kirk McAllister’s client not guilty.

Body camera videos may be helpful or they may be harmful to the defense, but they must be studied by the attorney.  Technological innovations are absorbed by the criminal justice system just as quickly as they affect the rest of society, but there is one constant: it is still thorough preparation that wins cases.

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NOT GUILTY BY REASON OF INSANITY: A STUDY IN PERSEVERANCE

Kirk McAllister believes that the criminal law is at its worst when dealing with true mental illness.  This case underscores that belief, and illustrates the determination with which a lawyer should approach such cases. The chronology of significant events is important for an understanding of this case.

The client is a 37-year-old man who was trained as a first responder.  When he was approximately 30 years old he began suffering from mental issues. These were fully controlled when he was on his medications. He was out of custody while the case has been pending, fulfilling his usual role of being a stay-at-home father for his two young children, while his wife was working.

On November 23, 2013 the client was arrested in Tuolumne County for a serious felony, a strike under California’s Three Strikes Law.  Mr. McAllister promptly had the client evaluated by a psychologist.

A preliminary examination was held September 17, 2014.

On December 8, 2014 the client entered a plea of not guilty by reason of insanity.

The client was at a market in Merced County on December 21, 2014.  He saw a woman being attacked outside in the parking lot.  He ran to her to give her aid. Seeing that she was not injured, he then gave foot chase to the man who had robbed her. He didn’t catch him or his accomplice after they escaped in a car, but he was able to give detailed descriptions of the robbers and their vehicle to the police.  The robbers were promptly arrested by the police. Inside the car were the woman’s purse and its contents. Thus he became the prosecution’s star witness in the Merced robbery case.

Mr. McAllister advised the client to proceed to trial by a judge, waiving the right to a jury. The defense relied on the psychological evaluation that had been conducted close in time to the event. The judge found the client not guilty by reason of insanity.

The next question for any judge in this circumstance is what to do with the defendant.  For guidance in this decision in California, the courts refer the issue to the Conditional Release Program, commonly called CONREP.  This agency is directed to make a recommendation to the judge. Historically, this recommendation has virtually always been to commit the accused to the state mental hospital for no less than 6 months.

Mr. McAllister provided CONREP with voluminous documentation regarding the client, including the police reports of the Merced robbery. What more conclusive proof could you have that the client was restored to sanity?  Mr. McAllister also requested that CONREP conduct an interview of the client. CONREP refused to interview the client!

Despite the overwhelming evidence of the client’s current sanity, on June 24, 2015 CONREP recommended that the client be committed to Napa State Hospital.  The prosecution joined in this recommendation.

However, there was a problem with CONREP’s recommendation.  Mr. McAllister pointed out to the judge that the section of the Penal Code on which CONREP relied for its decision had been changed the previous year (in California, any legislation passed in a calendar year becomes effective on January 1 of the following year unless it is designated emergency legislation).  The previous law had mandated that persons found not guilty by reason of insanity in serious felonies such as this one would be committed to the state mental hospital. On January 1, 2015 the law changed to allow the court to grant outpatient treatment if that was more appropriate for that individual, if this would not pose a danger to the health and safety of others.  On August 24, 2015 Kirk McAllister filed a motion urging the Court to grant outpatient treatment to the client, since CONREP had relied on an outdated law and because the client was restored to sanity.

CONREP graciously changed its position and agreed to interview the client.  The interview was conducted in Mr. McAllister’s office on January 15, 2016.

On January 29, 2016 CONREP submitted a new recommendation, advising the Judge to grant outpatient treatment.

On February 8, the Court ruled that the client would be granted outpatient treatment, meaning that he would be able to be home with his wife and small children while he received CONREP’s services.

Several lessons can be taken from this case.

First, the lawyer must keep up with the ever-changing laws that may impact a client.

Also, it is the lawyer’s duty to educate – respectfully, always respectfully — the judge and any other agency which may influence the judge’s decision in the case.

Finally, never take no for an answer.

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