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

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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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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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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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