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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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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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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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