Man Attacks Wife After Dream of Infidelity: Daren Kavinoky’s Legal Analysis

Posted by Staff on January 19, 2017

Darren Kavinoky weighs in with his legal analysis on the shocking case of wife’s attempted murder that the husband says was prompted by a dream. In Pennsylvania, an ABC News reports that a man woke up from a dream he had about his wife cheating on him and attempted to choke his wife. According to reports, the man even attacked his daughter when the daughter tried to help her mother. ABC News reports, “Archibald police say 49-year-old Conrad Rudalavage had been drinking before he fell asleep, then woke up Saturday convinced that his wife was unfaithful.” The wife was treated for her injuries according to the report and Rudalvage was arrested for attempted homicide amongst other charges. [1]

Legal Analysis by Attorney Darren Kavinoky

There are many different ways that the mental health or mental condition of the criminal defendant can come into play in a criminal prosecution. The most well-known is the plea of not guilty by reason of insanity, which, contrary to public perception, is used in less than one percent of criminal cases, and is successful only about a quarter of the time. The standard there is very high, basically that at the time of the alleged criminal act, because of mental disease or defect, that the defendant didn’t appreciate the wrongfulness of their conduct. An example of this is something as simple as I think I’m handing you a banana, but really I’m stabbing you to death.

There is a separate but related issue around the defendant’s competency to stand trial. That doesn’t relate to the condition of the accused at the time of the alleged crime but instead, focuses on whether the defendant is able to understand the nature of the proceedings and provide meaningful assistance to their criminal defense attorney. If this is the case, the answer is typically a postponement of the proceedings until competency can be restored.

[tweet_box design=”default” float=”none” inject=”via @DarrenKavinoky”]That’s ‘business as usual’ and results in a criminal recidivism rate that sees two-thirds of people who’ve spent time behind bars go back there.[/tweet_box]

In the case of the Pennsylvania man who attacked his wife after a dream that she was cheating on him, it appears that the story offered by the man accused does little to help his cause; instead, he is simply providing his motive for the attack. Similarly, since dream was reportedly brought on by the voluntary consumption of alcohol, he doesn’t appear to be incompetent to stand trial.

This case stands as yet one more reminder that the right to remain silent guaranteed in the Constitution does you know good unless you exercise it by keeping your mouth shut! As a practicing criminal defense lawyer for more than two decades, I can tell you from bitter experience that nearly every time someone tries to talk their way out of trouble by explaining circumstances to law enforcement, they only offer up missing pieces that the prosecution needed (and may not have had otherwise), or find some other way to talk themselves into still deeper trouble.

On a much more personal level, based on what’s been reported, we have yet one more crime that appears to be driven by alcohol consumption, even though the charges this man will likely face – assault, battery, possibly even attempted murder – don’t appear on the face to be alcohol, drug, or addiction related. That is the bigger missing piece of the criminal justice system in my experience: a lack of prioritizing the identification of crime driven by treatable mental health issues (like alcoholism or drug addiction) and instead merely focusing on punishment. That’s ‘business as usual’ and results in a criminal recidivism rate that sees two-thirds of people who’ve spent time behind bars go back there. Until we face up to the facts and admit we’ve not produced the results we want and are willing to look at this issue with fresh eyes, we’re going to keep getting what we’re getting. And I don’t think people want that anymore.
Sources
1. AP. January 19, 2017. ABC News. “Police: Man Assaulted Wife After Dream That She Was Cheating.” .

Arresting Death Penalty Protesters is Like Putting Out Fire With Gasoline

Posted by Staff on January 17, 2017

Today, January 17th, 18 death penalty protesters were arrested for civil disobedience outside of the Supreme Court for protesting the date that marks “the first execution after the Supreme Court allowed the death penalty to resume in 1977.” [1]

Capital punishment, also known as the death penalty, is a long-standing controversial punishment in which the state puts people to death for being convicted of committing certain crimes.

On January 11, 2017, Texas carried out the first execution of an inmate on death row of the year. [4] According to the Death Penalty Information Center, 31 states have the death penalty, 19 states do not practice capital punishment, and 4 states have the death penalty with Gubernatorial Moratoria. [3] In the year 2017, 27 inmates are scheduled for execution. (Some executions are listed as “stayed,” “reprieve granted,” and or “rescheduled.”

(Read more about the death penalty and criminal justice in America here.)

“What’s so offensive to me as a criminal defense lawyer,” says founding attorney of 1.800.NoCuffs Darren Kavinoky, “is that we know the criminal justice system makes mistakes, yet we still insist on allowing for a punishment that leaves zero margin for error.”

Kavinoky argues, “There are now nearly 2,000 documented exonerations of people who were factually innocent. Collectively, this group served over 10,000 years of wrongfully served prison years, and that doesn’t begin to speak to those who have been wrongfully executed. In each one of the cases involving the exonerated, all of the supposed safeguards of the legal system broke down, from law enforcement to prosecutors, judges, and juries (and sadly, sometimes defense attorneys too). Each one of these groups is charged with doing justice, not merely seeking convictions.”

“Amplifying the mistake is that while the wrong person sat in jail or prison, the real wrongdoer was left to roam the streets, free to re-offend and commit new crimes,” says Kavinoky. He adds, “Arresting people for protesting this system is like putting out a fire with gasoline; it’s beyond time for people to voice their concerns about the integrity of the criminal justice system.”
Sources
1. Ryan Lovelace. January 17, 2017. Washington Examiner. “Death penalty protesters arrested outside Supreme Court.” Retrieved via http://www.washingtonexaminer.com/death-penalty-protesters-arrested-outside-supreme-court/article/2612066#.WH5urIhXTR4.twitter.

2. AP. January 17, 2017. Seattle Times. “Anti-death penalty protesters arrested outside Supreme Court.” Retrieved via http://www.seattletimes.com/nation-world/nation-politics/anti-death-penalty-protesters-arrested-outside-supreme-court/.

3. Retrieved on January 17, 2017 via http://www.deathpenaltyinfo.org/states-and-without-death-penalty.

4. AP. January 11, 2017. Fox News.

Civil Rights Leader Martin Luther King Jr Teaches Us The Time Is Now

Posted by Staff on January 16, 2017

1.800.NoCuffs and founding attorney Darren Kavinoky take a moment to pause and recognize the accomplishments of the great civil rights leader. Martin Luther King’s work was not finished when his life was taken from us far too soon. All of the attorneys, paralegals, marketing team and office staff at the law firm join together today to admire the example set by a man who stands as a pillar of hope.

Perhaps one of King’s most famous lines in his “I Have a Dream” speech is one that 1.800.NoCuffs founder and leading criminal defense attorney Darren Kavinoky recites as he closes his keynote speeches.

“We have also come to this hallowed spot to remind America of the fierce urgency of now. We can no longer engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time…” said Martin Luther King.

That is a message that Kavinoky wholeheartedly endorses. The time for change is now.

We hope you will take the time today to honor Martin Luther King in your own way. Please share how you are honoring Martin Luther King with us @1800NoCuffs with #MLKDay!

Civil Rights Leader Martin Luther King

Date of Birth: January 15, 1929
Place of birth: Atlanta, Georgia
Date of Death: April 4, 1968
Place of Death: Memphis, Tennessee

Orlando Shooter’s Widow Arrested for Obstruction of Justice

Posted by Staff on January 16, 2017

Noor Salman, the widow of Omar Mateen, was arrested for her alleged role in the Orlando nightclub shooting and is charged with obstruction of justice amongst other conspiracy charges. According to CBS News, Noor Salman was arrested for “aiding and abetting, as well as obstruction of justice,” in the horrific massacre that took the lives of 49 people and injured several others. [1]

Founder and leading criminal defense attorney Darren Kavinoky, explains the charges Noor Salman faces. “There are many theories for people to face criminal prosecution for assisting others in preparing for, carrying out, or helping after a crime has been committed. One of the most common ways criminal prosecutors widen the net is by alleging a conspiracy, which is simply two or more people agreeing to commit a crime and taking some step to carry it out. Once the conspiracy is established, all of the co-conspirators can become liable for acts of the other co-conspirators,” says criminal defense lawyer Darren Kavinoky.

“Here, in the worst mass shooting (thus far) in American history, Noor Salman, the widow of Omar Mateen, faces charges of aiding and abetting her husband, since there is reportedly evidence that she assisted in the planning and preparation of the crime beforehand, texted encouraging messages to her husband during the attack, and then allegedly obstructed justice by attempting to mislead FBI and other law enforcement investigators after the fact,” says Kavinoky.

Kavinoky adds, “This is a fast-breaking story, but depending upon how the government chooses to prosecute Salman, she could be facing the ultimate punishment.”

Orlando Shooting Crime Timeline

SOURCES
1. Staff. January 16, 2017. CBS.com “Noor Salman, widow of Orlando massacre shooter Omar Mateen, arrested in San Francisco.” Retrieved via http://www.cbsnews.com/news/noor-salman-wife-of-orlando-massacre-shooter-omar-mateen-arrested-san-francisco/.

Patterns of Excessive Force by Chicago PD Reported by Attorney General

Posted by Staff on January 13, 2017

After a 13 month review, CNN Reports that the US Attorney General Loretta Lynch announced reasonable cause to believe that the Chicago Police Department may be engaging in a pattern of excessive force after an in-depth probe.

At a press conference in Chicago this morning, Attorney General Loretta Lynch addressed the concerns of excessive force. “The Department of Justice has concluded that there is reasonable cause to believe that the Chicago Police Department engages in a pattern or practice of use of excessive force in violation of the Fourth Amendment to the Constitution,” says Lynch. She adds, “Our investigation found that this pattern or practice is in no small part the result of severely deficient training procedures and accountability systems.”

“Sadly, the notion that there’s been a breakdown in trust between law enforcement and the people they serve in so many communities, that headlines of ‘excessive force’ or similar violations have become commonplace,” says criminal defense lawyer Darren Kavinoky.

“This is a great step forward, but a drop in the bucket in terms of the national conversation about police abuses that has now been taking place for years. Law enforcement has a tough job to do – any job where the number one metric for success is coming home alive at the end of your shift – is a tough job. And there are many hardworking, dedicated law enforcement personnel who play by the rules and safeguard the rights that all of us have. But, just like any profession, some bad apples certainly spoil the bunch, and when it comes to the relationship that is required between police and those they serve, those breakdowns can prove fatal,” says Kavinoky.

Kavinoky adds, “I’ll choose cautious optimism, but with an emphasis on the word ‘cautious’.”

SOURCES
1. Jason Hanna and Madison Park. January 13, 2017. CNN.com “Chicago police use excessive force, DOJ finds.” Retrieved via http://www.cnn.com/2017/01/13/us/chicago-police-federal-investigation/index.html.

Fall in Federal Prison Population is Drop in Very Broken Bucket

Posted by Nicole Hanratty on January 12, 2017

The federal prison population has been on the rise in the United States since the Carter Administration. But a recent study released by PEW Research Center study shows that President Obama turned that trend downward.

John Gramlich’s report “Federal prison population fell during Obama’s term, reversing recent trend” shows that the biggest uptick in the federal prison population occurred during the Reagan years. [1]

Federal Prison

John Gramlich reports, “Obama has made criminal justice issues a focus of his presidency. Among other things, he has overseen a Justice Department initiative that emphasizes lighter sentences for those convicted of lower-level crimes and used his executive clemency power more frequently than any other modern chief executive.” [1]

Of the decrease, criminal defense lawyer and TV legal analyst Darren Kavinoky says, “As a criminal defense lawyer who represents people accused of crimes in both state and federal courts, the headline, the statistics, and many of Obama’s policies concerning the justice system are encouraging. That said, when you peel away a layer of the onion to look at the actual numbers, while they’re encouraging in terms of a directional signal, it’s really like a morbidly obese person weighing 800 lbs. who has lost 5 of them: it’s good news, but just a drop in a very broken bucket.”

Kavinoky adds, “The dramatic spike in federal criminal offenders really began its massive acceleration during the Reagan era, which brought us a war on drugs and ‘just say no’ notions that, with 20-20 hindsight, were catastrophic failures. The numbers continued to rise dramatically (through both Republican and Democrat presidencies) until we’ve now seen this slight reduction.”

Federal Prison

“Sadly,” comments Kavinoky, “so much of the criminal justice world, and especially the way we deal with crime fueled by drugs and addiction, is like rearranging the deck chairs on a ship called the Titanic. If your ship has struck an iceberg, you can rearrange those deck chairs into any configuration you like, but if you don’t deal with your iceberg problem, the ship is going down. Similarly, it seems to me that we’ve been asking ourselves the wrong questions when it comes to federal criminal offenders. Instead of wondering how to most effectively punish those convicted of a crime, perhaps we can reallocate some of that effort to addressing demand-side issues, and balancing justice with mercy to achieve long-term benefit for all of us.”

SOURCES
1. John Gramlich. January 5, 2017. PEW Research Center. “Federal prison population fell during Obama’s term, reversing recent trend.” http://www.pewresearch.org/fact-tank/2017/01/05/federal-prison-population-fell-during-obamas-term-reversing-recent-trend/.

Is a DUI a Felony? Criminal Defense Attorney Darren Kavinoky Answers

Posted by Staff on January 12, 2017

Is a DUI a felony? It’s a top question the legal team at 1.800.NoCuffs receives. Criminal defense lawyer and TV legal analyst Darren Kavinoky answers the question explaining that a DUI could be prosecuted as a felony or a misdemeanor.

Legal Answer by Attorney Darren Kavinoky
Under California DUI law, a drunk driving arrest could be prosecuted as a felony, or a misdemeanor, depending on the facts of the case, and the criminal history of the defendant.

Two quick definitions that are important for a full understanding of the issue:

A misdemeanor is any crime (including a DUI) for which the maximum possible punishment is one year in jail;
A felony is a crime that could be punished by a possible prison term of more than one year.

So, while it’s true that a misdemeanor is, by definition, a “lesser offense” than a felony, as anyone looking at any kind of jail term will tell you, even a day behind bars is something to take seriously.

Is a DUI a felony?

With that in mind, California DUI’s are generally misdemeanors, but can be made into felonies in one of three ways:

The defendant has three prior DUI (or wet-reckless) convictions, and it is now their fourth DUI arrest (or more) within a ten (10) year period, as calculated from arrest date to arrest date; OR
Regardless of whether there are prior convictions or not, someone other than the driver is injured as the result of the DUI, (and those injuries are more than trivial, generally ones that require medical help or treatment); OR
Regardless of the number of convictions, the defendant has suffered a prior felony DUI conviction; once that happens, the new DUI case is a felony, even if it isn’t a fourth offense and no one is injured.

Each of these categories raises dozens of separate issues and defenses that are the subject of other articles on our site. But the last category – suffering a prior felony DUI conviction – is especially tricky, and sadly I even know some lawyers that were unaware of this issue until it hurt their clients.

Here’s how this could play out: Let’s say that, hypothetically, eight years ago you were convicted of a first-offense felony DUI because you were involved in a one-car accident where your friend, a passenger was injured, say, requiring a few stitches as a result. Now, in your current case, you simply had the bad luck to pull into a sobriety checkpoint and give a breath test of .08.

Even though this new case would ordinarily be treated as a “plain vanilla” DUI case (albeit a second-offense, because it is within 10 years of the first), because in our hypothetical situation the prior conviction was a felony, the new case will also be a felony.

The other ways that DUI-related cases can be felonies are in those especially tragic situations where a death occurs. It may be possible to bring charges of gross vehicular manslaughter while intoxicated, or even murder, both of which are felonies (California Penal Code sections 191.5 and 187, respectively).

DUI laws in California and the sentencing related to DUI offenses are very complex. The unique facts of each case make it vital that you consult with a criminal defense attorney who knows the nuances and the vast array of the drinking and driving offenses, and possible sentencing and alternative sentencing opportunities that relate. We hope that this information is helpful, and invite you to call anytime if you have further questions. We can be reached 24/7/365 at our toll-free phone number 1-800-NoCuffs.

Innocent Victim Jailed for Months in Hoax Finally Released

Posted by Staff on January 10, 2017

In Southern California Michelle Hadley, age 30, has been released from jail and identified as an innocent victim after being held on charges that included, “harassing, stalking, pretending to be the wife of her ex-fiance, and responding to online ‘rape fantasy” ads.” She spent months in jail and the charges she faced came with a potential sentence of life in prison. District Attorney Tony Rackauckas made an announcement today that Hadley was the victim of a hoax, has been released from jail, and has been fully exonerated. [1]

Innocent Victim

“Sadly, this case illustrates the potential for systemic flaws in the criminal justice system to victimize people who are factually innocent and are deserving of our protection. Here, it proved to be the ultimate betrayal that the crime victim spent months behind bars, while those responsible for safeguarding her interests were busy prosecuting her,” says criminal defense lawyer and TV legal analyst Darren Kavinoky.

“Although The Innocence Project, headed by famed O.J. Simpson defense lawyer Barry Scheck may be the best known of those who do battle on behalf of the wrongfully convicted, the National Registry of Exonerations (a project of the University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School and the Michigan State University College of law) is the most comprehensive look at those who have been let down by the criminal justice system. As indicated by the National Registry, as of this writing, there have been nearly 2,000 exonerations from over 10,000 wrongfully-served prison years (to say nothing of those innocent people who have been erroneously executed).”

Kavinoky adds, “Whether it’s the result of faulty eyewitness identification, false confessions, law enforcement mishandling, or any other reason unless confidence can be restored to the criminal justice system, we lose twice: not only is the wrong person punished, but the real wrongdoer remains free to commit other crimes.”

In this case, the alleged real wrongdoer Angela Diaz was arrested and booked January 9, 2017. Diaz is now accused of framing the innocent victim in this case Michelle Hadley,

SOURCES
1. January 10, 2017. Tribune Media Wire. “Woman jailed for months in ‘rape fantasy’ hoax was actually a victim, DA says.” Retrieved via http://myfox8.com/2017/01/10/woman-jailed-for-months-in-rape-fantasy-hoax-was-actually-the-victim-da-says/.

Criminal Attorney and Celebrity Media Analyst Darren Kavinoky

Jury Announces Death Penalty Verdict For Dylann Roof

Posted by Staff on January 10, 2017

The criminal case against Dylann Roof has concluded with a death penalty sentence. Roof represented himself in the case wherein Roof was found guilty of killing multiple parishioners of the Charleston, South Carolina church.

Dylann Roof’s fate was announced today by a jury that sentenced him to the death penalty for killing 9 black church members in a case that shocked the nation. Roof exercised his right to represent himself. He called no witnesses in the sentencing phase of his case. The purpose of calling witnesses on behalf of the defense in the sentencing phase of a trial is to plead for a lesser punishment. In the case where the death penalty is in play, calling witnesses could have helped to spare his life.

Dylann Roof Death Penalty Verdict Review by Attorney Darren Kavinoky

It’s important for people to understand that in death penalty cases – whether they are in state court or federal court – are broken into two separate phases: the guilt phase, where prosecutors have the burden to prove the defendant’s guilt beyond a reasonable doubt, and, assuming criminal prosecutors meet that burden with a unanimous jury verdict of guilt, the penalty phase. During the penalty phase, jurors weigh factors of aggravation, and compare them to factors of mitigation, to determine the appropriate punishment. The only two choices are life in prison without the possibility of parole or the death penalty. Just like with the guilt phase, the penalty phase requires unanimous agreement by all jurors to impose the ultimate punishment; if even one juror votes for life in prison, the criminal defendant is spared the death penalty.

In this case, the evidence of guilt was so overwhelming – video tape evidence, eyewitness testimony, Roof’s own confession – that this is an outcome that is unlikely to surprise anyone. It’s been widely reported that Roof was willing to plead guilty and spare prosecutors and victim’s alike the expense, risk, and emotional pain of a trial. However, since the prosecution team refused to take death off of the table, the defense had no choice but to proceed to a jury trial. Since Roof called no witnesses at trial and presented no evidence, a guilty verdict was a foregone conclusion. The only goal of the defense lawyers was to save Roof’s life by seeking a sentence of LWOP (life without the possibility of parole). This goal was apparently not shared by their client, whose only “argument” was a somewhat rambling five-minute speech where he vaguely suggested that jurors could spare him, but that he “wasn’t sure what good that will do anyway.” Jurors apparently agreed that it wouldn’t, and took about three hours to return their verdict of death.

This case illustrates the tension between a defendant’s rights and a lawyer’s obligations. As a practicing criminal defense lawyer for over two decades, I’ve experienced firsthand situations where the accused insisted on taking actions that were directly contrary to the advice of counsel, with devastating results. Just like it may be possible for someone to remove their own appendix doesn’t make it a good idea; likewise, trying to navigate the criminal justice system without legal training is a fool’s errand.

Even though it’s unlikely many will be shedding tears for Roof, given the heinous nature of these hate crimes, and the total lack of remorse (or even understanding) of the carnage he has wrought, there’s another question that we, collectively, need to answer as a society, and that is how we address the “worst of the worst” criminal offenders. It has always seemed like a fundamental misalignment to illustrate how wrong killing is by taking a life (even if it is the life of the criminal defendant), but I have the luxury of pecking on a computer keyboard rather than living the horror Roof imposed on so many. There’s a good reason the robed figure of Lady Justice is blindfolded, and Roof will now have time to contemplate that before she exacts her ultimate punishment.

Death Penalty Public Opinion

According to Pew Research Center, a majority of Americans support the death penalty. Read more about the death penalty and criminal justice in America here.

Timeline of Dylann Roof Crimes

SOURCES
1. The Associated Press. January 10, 2017. Bloomberg. “Dylann Roof Sentenced to Death for Killing 9 Black Church Members.” Retrieved via https://www.bloomberg.com/news/articles/2017-01-10/ap-newsalert-dylann-roof-sentenced-to-death-for-killing-9-black-church-members-1st-to-get-death-penalty-for-federal-hate.

2. David Masci. November 14, 2016. Pew Research Center. “5 facts about the death penalty.” Retrieved via
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DUI Case Dismissed: A Case Study From DUI Arrest To Acquittal

Posted by Staff on January 10, 2017

“DUI Case Dismissed.” [Insert gavel sound.] That’s a judgment many people think is impossible to obtain. Most people assume that if you are arrested on charges of DUI it is an automatic conviction. But in reality, there are dozens of ways to apply the law, prove innocence, or argue mitigating factors that appropriately reduce charges, fines, or potential sentencing. At 1.800.NoCuffs, we’ve seen everything from false arrests to faulty junk science that leads to false BAC readings. We realize that some people who are arrested for DUI can benefit from addiction recovery services and we happily provide referrals to treatment centers like Luminance. We also know that there are times when dolphins get caught in the tuna net. Below is an actual 1.800.NoCuffs client result.

DUI Case Dismissed Example

Don’t believe your DUI charge can be dismissed? Consider this alleged weaving case that led to a DUI arrest. Recently a case came through 1.800.NoCuffs in which a client was stopped on suspicion of DUI after being followed by a police officer for only 5 seconds. (This fact was not in dispute.) The officer pulled the client over for weaving. In that five seconds, the driver could have been looking to change lanes, drinking a sip of water, or swerving to avoid a pothole. There are certain requirements that have to be met by the arresting officer which were not met in this case. With ease, the 1.800.NoCuffs attorney obtained a set aside in court, (meaning the client won the case and was not convicted of DUI).

Why was the client’s DUI case dismissed?
The client’s BAC evidence was obtained illegally because 5 seconds is not enough time to follow someone to create probable cause to pull them over. Explains 1.800.NoCuffs criminal defense attorney Darren Kavinoky, “There’s a three prong test for weaving. It’s got to be:

1. distinct or pronounced weaving
2. viewed over a substantial period of time
3. by a trained officer.

Those are the three different prongs. If any one of the prongs is missing then the evidence is capable of being suppressed. Any evidence that follows a stop that doesn’t satisfy that three prong test is fruit of the poisonous tree. It has to be suppressed and it can’t be used against a person. Any evidence that is derived from the poisoned evidence has to be thrown out. So in the case of a bad stop, if somebody’s pulled over for weaving, but it was a bad stop, all of the officer’s observations, all of the statements of the defendant, and all of the chemical test results have to be thrown out. So what are they left with? Nothing. Case dismissed.”

How to clear DUI record of a DUI Arrest

Next, we ask celebrity attorney Darren Kavinoky what happens when someone who is found not guilty of DUI, wins a set aside in court, or charges are dropped altogether. How do they clear their name? What are the advantages and limitations of an expungement? Read about how to clear DUI record and DMV record here.

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