Criminal defense lawyers serving: Stanislaus, Sonoma, Tuolumne, Merced, San Joaquin Counties - and Federal Courts in Sacramento and Fresno

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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AGGRESSIVE DEFENSE IN MURDER CASE WINS CLIENT’S FREEDOM

Anyone can be a victim of injustice – even the son of a District Attorney.

This case involved the shooting of a man after panicked partygoers were running from the scene where two other people had just been murdered. The police theorized that the client, driving a vehicle away from the party, aided a passenger in his van fatally shoot a man out the window as the man ran by.

The preliminary hearing is called a probable cause hearing, meaning that the standard for the judge to send the case on for trial is a low one, as opposed to the proof beyond a reasonable doubt requirement in a jury trial. For this reason it is rare that the prosecution loses a case at preliminary hearing.

In this case Kirk McAllister went on the attack at the preliminary hearing, using law enforcement’s own evidence. He entered the crime scene diagrams prepared by the police into evidence.  He questioned the witnesses using the crime scene photographs taken by the police. He called as a witness the state Department of Justice forensic firearms expert. Mr. McAllister brought forth evidence that a GSR (gunshot residue) test from swabs on the “victim’s” hands showed that in fact he was a shooter! The hearing which was expected to take 4 hours took 4 days.  Kirk McAllister proved that it was impossible for the crime to have happened.

At the conclusion of the evidence on the fourth day the judge not only refused to hold the client to answer; he took the rare step of making a factual finding that the crime did not happen. The Judge ruled as follows. “So based on all that I make the following factual finding: That Mr. Logan did not fire a gun from the Morse vehicle while on Westside Boulevard the evening of March 30, 2013….Therefore Mr. Morse is not held to answer…. Mr. Morse is released from custody. He’s to be unshackled”

(Merced County Superior Court case number   : see also Merced Sun–Star, November 15, 2014, page A1, “Murder Charges Dropped Against Merced DA’s Son”)

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THE ART OF NEGOTIATING

Over 90% of the cases in the criminal system are concluded before trial.  For this reason the lawyer who throws down the glove early and refuses to attempt to negotiate a settlement is doing the client a disservice.

For example, in a recent case a popular restaurant in Stanislaus County was burned to the ground.  Kirk McAllister’s client was charged with arson.  The matter was complicated by the fact that the client had a prior conviction of arson.  If convicted with that prior, the client would have to be sentenced to 10 years to life.

Mr. McAllister negotiated a plea bargain with the District Attorney which resulted in the client being sentenced to 365 days county jail instead of the indeterminate sentence. With credit for good behavior the client served approximately 6 months on an ankle monitor—certainly preferable to the life sentence he was facing.

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NOVEL PTSD DEFENSE WINS CASE FOR DECORATED SOLDIER

September 4, 2013 – The client, a soldier in the United States Army, was the turret gunner in a tank that was blown over by an IED in Iraq.  After that he hurried home to Modesto for a preplanned leave. Four days after the tank explosion he was in a bar where an altercation broke out.  Acting on the instincts he had learned in war, he stabbed two people.

Specialist Carlos Melendez was later found to have been suffering from post-traumatic stress syndrome (PTSD).  Kirk McAllister presented a novel defense based on that diagnosis.  Dramatic testimony highlighted Melendez’ upbringing in war-torn Nicaragua through his heroic exploits in Iraq, where he saved the lives of many of his fellow-soldiers.  He received numerous decorations for those actions.

Based on this defense the judge reduced the charges to misdemeanors.

This decision allowed CPL Melendez to fulfill his twin goals: to stay in the Army and to gain his citizenship.  Melendez stated, “If I die in combat, I want to be buried as a United States citizen.”

The case was hard-fought but the defense was victorious.  Asked for a comment, Melendez said, “Mr. McAllister is a soldier for justice.”

(Name, comments, and photograph appear by permission of the client)

(Stanislaus County Superior Court, Case No. 1418559)

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JURY FINDS POLICEMAN NOT GUILTY

April 16, 2013:  In an important case in Merced County, Kirk McAllister defended a well-known police sergeant against charges of drunk driving.  The Attorney General’s Office prosecuted the case, which largely consisted of the testimony of three civilian witnesses.

“McAllister zeroed in on one witness who testified that he and two others saw Pacheco drive up to his home the night of the DUI arrest.” (Merced Sun-Star, “Sheriff’s Sergeant Cleared in DUI Trial”, April 16, 2013, page A1)

Under Mr. McAllister’s relentless cross-examination, the main witness admitted that he had lied.

Mr. McAllister: And that was a lie? You have trouble saying that you lied, don’t you?

The Witness: The thing is I didn’t –like I said, I didn’t want—sure, I have trouble saying it.

….

Mr. McAllister: So that was kind of an agreement between the three of you?

The Witness: Yes.

Mr. McAllister: That you would lie, right?

The Witness: Correct.

The jury found the client not guilty, proving again why McAllister & McAllister, Inc. is “The law firm police officers choose when they are in trouble.”

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UCLA LABORATORY EXPLOSION UPDATE BY KIRK McALLISTER

….

In an interview by the Chemical and Engineering News Kirk McAllister provided legal analysis of the criminal prosecution of UCLA and a chemistry professor resulting from the UCLA laboratory explosion which killed a researcher.  See Mr. McAllister’s commentary in volume 90, issue 52 of the Chemical and Engineering News ( http://cen.acs.org/articles/90/i52/Preliminary-Hearing-Ends-Cliff-hanger.html )

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DUI—NOT GUILTY: DIRTY DANCING—GUILTY AS CHARGED

June 15, 2012 – In trial the testimony focused as much on dirty dancing as it did on the charged offense, driving under the influence of alcohol.

Mr. McAllister’s client was thrown out of a bar for “dirty dancing”.  Ironically, the bouncers were far more offended by his dancing than was his dance partner, who had egged him on. The client testified “She wanted me to be a bad boy—I guess I was!”

Not content with 86’ing him out of the establishment, the bouncers called the police and contended he drove his car in the parking lot, thus getting him charged with DUI.

The jury sided with Kirk McAllister’s defense and found the client not guilty—even though the blood alcohol level was 0.18%.  (Case number1427624)

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Jury Acquits McAllister’s Client of Child Molest

April 25, 2012 – Investigation should not stop when the trial begins. In this case Kirk McAllister’s investigation during the trial became critical in disproving the alleged victim’s version of the incident given on the stand. Also, in an unprecedented move Mr. McAllister called as his witness the Child Protective Services (CPS) worker who had investigated the case, in order to correct the false impression given by the police. The result: the jury found McAllister’s client not guilty of child molest. (Case No. 1420585 )

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Law Enforcement Bounty Hunting Exposed

February 17, 2012 – In this Driving-Under-the-Influence (DUI) case Mr. McAllister filed a motion to suppress the breath test results based on the officer not having legal cause for the traffic stop.  On cross-examination the officer admitted to having won awards for the most DUI arrests for two consecutive years from Mothers Against Drunk Driving (last year he had 60 arrests; “this year I’m shooting for 100!”)  “You have a streak going?” Kirk McAllister asked.  “Yes , I do” was the response.  Next McAllister asked “You want to keep your streak going?”  The officer answered “Yes, I do.”  The officer ultimately could not convincingly cite a Vehicle Code section that he claimed was violated.  The judge granted the motion to suppress evidence and the District Attorney was forced to dismiss the case. (Case No.  CRM015477)

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Defense Investigation Frees Client

September 1, 2011 – Colby Browning was charged with attempted murder for a near-fatal stabbing that he did not commit.   Kirk McAllister conducted a more thorough investigation than the police did and proved who actually committed the crime.  When he turned over his investigation to the prosecution, the District Attorney began prosecution of the actual perpetrator and dismissed all charges as to Browning. 

“It’s scary facing life imprisonment for a crime you didn’t commit, but I never lost confidence in Kirk,” said Colby Browning.  “His thorough investigation and take-no-prisoner attitude saved my life.” Case no. MF50736

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