New Law Makes U Visa Status Within Reach for More Undocumented Victims of Crimes

March 31, 2016

by Sergio H. Benavides

On this day, Cesar Chavez Day, it’s important to reflect on the plight of farmworkers, and because so many are undocumented immigrants, ways in which their lives can be improved.  The U Visa is one of those ways.

America’s Police Departments Should Hire More Women to Cut Down Excessive Force Complaints

11-8-15

by Sergio H. Benavides

The latest issue of Time magazine (Nov. 16, 2015, p.25)  has a short article discussing statistics that suggest female officers resort to violence when confronting the public less often than male officers.

For example:  “A 2002 study by the National Center for Women & Policing…found that women accounted for only 5% of excessive-force complaints in seven major cities, despite making up almost 13% of police personnel.”

There are more anecdotal stories supporting this possibility.  They suggest women overall resort to communication first, and violence last.  As a criminal defense attorney who handles cases that often have components of violence or hostil communication coming from police officers, it would certainly help my clients more if they did not have to deal with complaints of police excessive force alongside other criminal charges.

The article talks about how recruitment materials emphasize shootouts and car chases, and not communication skills.  That’s a shame.  Most of the time, officers need to communicate rather than shoot or chase.  Life is not an action movie, and new police officers should not be donning their uniforms excited about their first available chance to open fire at someone.  That type of recruitment sends the wrong message. “To Serve and Protect” should mean more than what it seems to currently.

I wonder: WHY aren’t there more female police officers?  We SHOULD have gender parity in this important sector of public life, as it would serve all of society better.  I think more efforts should be made to filling in the ranks of police forces with more females–and it might just decrease tensions in communities around the nation, fulfill the promise of equality for women in society, and emphasize communication over physical confrontation overall.  It is an idea whose time has come.

Flavor Flav Faces DUI charges: The Danger of Media Character Assassination

by Sergio H Benavides, July 23, 2015

In the 1980’s Flavor Flav enjoyed wealth and fame as a rapper.  Nowadays, if you believe internet gossip articles, not only is he a DUI defendant, but he’s broke, washed up, and blew his millions on a cocaine habit.  Who cares? He’s a celebrity, you say.  All’s fair in media scrutiny you say.  Hold on, I say.

As a DUI defense attorney, I regularly watch and read DUI-related legal and daily news.  This week, it’s the fact that celebrity Flavor Flav is facing DUI charges.

My concern with the media coverage of his DUI charges, is that his Constitutionally-protected rights–namely, the Presumption of Innocence, and the Right to a Fair Trial–are being whittle away.  You see, even in the age of constant-Kardashian inanity, we criminal defense attorneys still have to worry about protecting a client’s rights at all costs–including rich and famous ones.

Here, Flav’s rights are in danger for a number of reasons.  First, the media splashes numerous unflattering pictures of him all over their articles, including his mugshot.  So already, before the ENTIRE WORLD knows any of the facts, their opinions are being molded and formed by the suggestive images fed to us through media.  We see an unfriendly, unattractive celebrity’s mugshot next to a headline that reads “Flavor Flav: Cops Say He Was Coked up in DUI Arrest.”  Maybe he was.  Could be true.  But it also begins unfairly creating a prejudice, an advantage, to the prosecution, because article after article focuses on these salacious details.  If enough people see these unflattering pictures and the stories about cocaine, it makes it that much harder for jurors to remain neutral and unbiased–which is a requirement for a fair trial.

So what we start seeing, is that if enough news outlets keep publishing these articles, it tends to create a de facto PRESUMPTION OF GUILT, and the potential jury pool, if Flav ever goes to trial, might be tainted.  A group of 12 people who have had their brains bombarded with article after article and picture after picture about cocaine use, may not be truly impartial.  Of course, the best of judges will put pressure onto timid civilians and have them SAY they can erase months or weeks of negative press they have been exposed to, but the reality is, they probably can’t.  In the end, it’s a tragedy for our democracy, if we let gossip, news, and innuendo influence our opinions and impressions of defendants long before the first witness has ever put a hand on a bible.

People always wonder why DUI representation is so expensive.  Part of the reason is that guaranteeing a fair trial by the defense is an almost Olympic athletic event.  There are so many challenges.  Law enforcement piles on many dollars and many agencies who are all stakeholders in guaranteeing convictions.  I’ve spent two entire days just on DUI jury selection BECAUSE we as a society detest DUI drivers so much.

When societal bias is already strong against DUIs, it becomes supremely important that an accused’s rights remain sacrosanct.  This is why the celebrity character assassination of Flavor Flav is more onerous:  if they can do it Flavor Flav, they can do it to anyone.  And then on that remote chance that one of us is charged with a crime, and we claim we are innocent,who will believe us when we face an onslaught of negative publicity?  Who would you believe?  CNN, FOX News, TMZ, etc. or Flavor Flav? The cop who spoke to TMZ or Flavor Flav? That type of credibility battle is being set up by this coverage.  And I don’t think the frames of the Constitution would have approved of how these important rights can be tangled up in the modern 24-news era.

San Francisco’s Sanctuary City Policy in Conflict with US Immigration ICE Hold Requests: Released Undocumented Multiple Felon Kills Innocent Bystander

by Sergio H Benavides, July 4, 2015

As we all get together with friends or family this day of Independence, we see the headlines dominated by the tragic, random shooting death of Kathryn Steile this past Wednesday in San Francisco, as she walked down Pier 14.

Shooting her to death was an undocumented immigrant, five times previously deported, 45 year old Francisco Sanchez, who had been recently released by the San Francisco Sheriff’s office.  You see, Sanchez was wanted by I.C.E., Immigration and Customs Enforcement, because he had been previously deported.  But he was not wanted for any open criminal cases, nor were there any judicial warrants or arrest warrants for  Sanchez.  If people are in jail and are sought by ICE merely because they are in the U.S. illegally, S.F has a policy of not honoring ICE hold requests. It has been the policy of progressive politics-dominated San Francisco for awhile.  The idea behind this policy is that there have been way too many deportations of undocumented immigrants simply because they are arrested for minor criminal charges–often misdemeanors, and often nonviolent, such as a DUI.

But now that Ms. Steile died in a random shooting by one of the individuals that ICE had requested that the San Francisco jail hand off to them, the sanctuary policy is under a hot light.

Presidential candidate Donald Trump has jumped on this tragic event, having previously denounced Mexican immigrants as being people who bring rape, murder, and crime into the country.  This is a hot-button situation that feeds into Trumps political opportunism, but we have to proceed carefully.  Mexican immigrants–documented or not, are largely, and mostly, hard-working, decent, law-abiding, and honorable people.  We should be careful not to jump to quick responses, and issue cookie-cutter rules or approaches to a delicate situtation.

The San Francisco sanctuary policy does not need to be trashed.  It needs to be tweaked.  It needs to be flexible and smart, so that the Sanchez’ of the world get caught and held by ICE, but the others–the vast majority who pose no real threat to society, won’t be deported, ripping them horribly from their families.

Caution is needed.  We should not be drive by emotion, racism, or ethnic hostilities–the exact thing Trump is now appealing to.  A careful balance needs to be struck between the immigration authorities’ needs, and our local needs for law enforcement and public safety.  The criminal defendant, who is also an undocumented immigrant, poses special concerns and needs, and blanket rules that are inflexible are the wrong way to go–whether it is to lock ’em all up, or let ’em all go.

Friend of the Boston Bombers Gets Four Years’ Federal Prison for Clearing His PC Browser History–Are You Next?

by Sergio Benavides, June 14, 2015

Last week I posted an article on my Facebook business page, www.facebook.com/your1stdefense, about a recent news item.  Khairullozhori Matanov, a 24-year-old cabbie, had had dinner with the bombers the night before, and had deleted his browser history after he went to speak to the police about what he knew about the brothers.  What did he delete?  Who knows?  Nobody knows.  According to the Nation.com article, he got four years (which could have been twenty  four) on “one count for destroying “any record, document or tangible object” with intent to obstruct a federal investigation,” under the Sarbanes-Oxley Act, enacted in 2002 originally to stop corporate corruption in the wake of the Enron scandal.  The point of all this, is that ANYONE can now be prosecuted by zealous government attorneys if they believe you have “destroyed any record” that “could be” useful for a government investigation.  The government must prove intent to obstruct, but that is a thin line, in my opinion.  It is a wide-reaching law that can ensnare just about anybody.  Oh, and by the way, there was never any evidence that Matanov had anything to do with the bombings, just that he deleted his browser.  Our government doesn’t like it when we don’t let them snoop at things they want to snoop at.  It’s apparently ok for a certain ex-senator to delete and control all her State Department emails, but it’s not kosher for Joe Six Pack to delete a browser.  Different sets of rules for different people.  The question I have after reading that news article, and it is frightening the scope of the law that prosecutors can play with now, is what’s next?  Who is next?  Are you ready for a police state, where a government can accuse you of deleting ANYTHING on your information, and saying that it was POTENTIALLY useful for a government investigation?  I’m not sure how or why our congress ever handed so much leeway to prosecutors, but they did.  And even if the law was originally meant to aid in stopping corporate corruption, it can now be used in all kinds of other circumstances and is open to abuse.  The law needs fine-tuning, so that we don’t come to a time where it’s routine for police to pay us a visit to download our search histories.  Right to privacy indeed.

Check out the original news article at: http://www.thenation.com/article/208593/you-can-be-prosecuted-clearing-your-browser-history#

Michael Phelps’ DUI/ Driving Under the Influence Punishment is Too Excessive

by Sergio H. Benavides, October. 8, 2014

The most decorated Olympian, EVER (with 22 gold medals), Michael Phelps got a DUI recently, and suffered a 6 months’ suspension from his professional job, at USA Swimming. He loses his monthly stipend. He will no longer be on the U.S. Olympic team for next year’s championships. I find that to be grossly unfair. The man is also going into a 6 week inpatient program. Let me tell you, as an attorney who has handled hundreds of DUI’s, I know that a 6 week program is nothing. It is a PR stunt. My point here, is that penalizing a man with losing his income, is an extreme and harsh measure. He still has to pay DUI fines ($2000), take a 3 month DMV class, and be on 3 years of informal misdemeanor probation. His punishment should be the same as anybody else’s. Period.

Sure, this is not his first problem with substance abuse.  In 2009, he was caught photographed smoking out of a bong, and before that, in 2004, he picked up his first DUI in the state of Maryland.  For the first DUI, he had to pay a $250 fine, and be on probation for 18 months, attend a MADD (Mothers Against Drunk Driving), and had to visit schools to tell children about he dangers of drinking and driving.

Nevertheless, as much as people complain that celebrities are given slaps on the wrist when they commit crimes (Lindsey Lohan, Charlie Sheen, Jerry Lee Lewis?), it is also unfair for the pendulum to swing in the other direction.  Phelps does not deserve HARSHER punishment than Joe Six Pack.  They should both be given the usual, typical punishment.  It is not fair and sends the wrong message to use Phelps’ celebrity to “send a message.”  No one will assume that just because Phelps gets a DUI, and he’s a gold medal winning Olympian that YOU should go out and drink and drive.  Phelps’ own behavior, in any event, will punish him enough.  He will lose popularity, endorsements, opportunities to make extra income on the speaking circuit.  Those things come with celebrity and are to be expected.

For a second DUI, at least in Fresno County, where I worked for 6 + years, the typical punishment is 20 days of jail or sheriff’s work program, nearly $2,000 in fines, and an 18 month DMV program, along with three years of probation, among other terms.  Alameda County is more lenient, but that’s the punishment.  And that is what Phelps and Joe Six Pack should get, if they are found guilty or they make a plea bargain.

Jury Nullification: David Barajas commits murder and gets away with it? 

by Sergio H. Benavides, Sept. 8, 2014

It was recently reported that a Texas man, David Barajas, had recently been tried for murder, and found NOT GUILTY of shooting to death the DUI (drunk driver) driver who ran into and killed two of his sons on a quiet rural road in Texas.  The shooting death occurred at the scene of the crash a short time after Jose Banda ran into Barajas’ two sons.

There was very little physical evidence tying Barajas to the shooting death:  .357 shells in Barajas’ home matched that of the shells that killed Banda; some of Barajas’ blood was found in the armrest area of Banda’s car.  A crime scene eyewitness saw Barajas leave the scene, come back a short time later, and lean into Banda’s car.  The witness didn’t see a gun, but logic tells us that is probably what Barajas had with him.

Things could have turned out a different way for Barajas.  He could have received a life sentence, and would have if it hadn’t been for the fact that a DUI driver was the victim.  In this case, the jury liked the accused more than the victim.  In this case, the jury dismissed the evidence and found for NOT GUILTY largely because they disagreed with the idea of sending Barajas to prison.  This is called “jury nullification,” when a jury disegards the law, facts, and evidence for one reason or another.  I believe that’s what happened here.

I have tried many DUI/ Drunk Driving trials, and it’s always a nightmare selecting an objective and fair jury.  It seems that EVERYONE hates DUI drivers and everyone has a horror story of tragedy from a DUI driver.  So the D.A. in the Barajas case had an uphill battle in convicting someone for killing a DUI driver who had just killed two young boys.  It was never gonna happen. Nope.  District Attorneys must seek justice:  it is their professional guiding principle.  So even if in their hearts they knew that Barajas did what any parent would do, they could not give a stamp of approval to vigilante justice. But a jury can–and in Texas, it did.

It is perfectly legal to film, photograph, and record the police in public when they are working

http://www.huffingtonpost.com/2014/08/13/filming-police-officers_n_5676940.html?utm_hp_ref=tw

by Sergio H. Benavides, August 14, 2014

The Huffington Post yesterday published an article about the public’s right to film, photograph and record the police while they work in public.  Apparently, many people don’t know about this right, including police officers themselves.  In fact, the NY police department had to post a notice to officers remindin them that WE the PEOPLE have a 1st AMENDMENT right to film the police while they work in public, and that it’s a violation of our basic rights to slam our heads into windows, wrestle us to the ground, or otherwise brutalize us while we try to capture the good men and women in blue during their work.

But remember:  they have batons, and heavy flashlights, and guns, and taser weapons, and they CAN use them freely on the streets with little or no controls on their actions.  True, they may face discipline, firing, or a civil rights lawsuit later on.  But in the heat of the moment, when they fear being found out, they could potentially break your bones, cause a concussion, or worse when they try to stop you from exercising your First Amendment rights.  So my bottom line is: be careful and smart when recording the police in public.  Do it from a place of safety, and preferably, from a place of obscurity–where you will not be seen.  Your rights won’t matter to you much if you’re dead as a result of illegal police brutality while censoring your free speech rights.

Accused Teacher’s Defense Attorney Calls Sex Abuser Charges a “Witch Hunt”–It’s Over the Top

by Sergio H. Benavides, August 13, 2014

Last week Concord Teacher Joseph Martin’s defense attorney compared the criminal child sexual abuse charges to the Salem Witch trials.  Of course, his defense attorney is putting on an aggressive, spirited defense, and I admire that. By all accounts, no one has ever seen Mr. Martin commit any obvious, gross sexual abuse.  The touching involved accusations of under the shirt chest rubbing of elementary school boys, and some groin grazes outside the clothing.  So this case involves sexual abuse charges of touching that dances on  the edge of what is illegal and what is allowed.  In any event, even though Martin and his attorney may consider the charges exaggerated, and a “witch hunt,” it’s my opinion that saying that to a jury, after 14 boys have come forward accusing the teacher of the same, is a little over the top.  It’s too much.  And it may offend the jury, who I am sure are taking the case seriously.  I’m in favor of dramatic, splashy arguments in closing a trial, but it’s too much to call this a “witch hunt.”  We will see how the verdict plays out.  No verdict yet.

Mistake for accused child molester to take the stand

By Sergio H. Benavides, Aug. 2, 2014

The trial of accused child molester, Concord school teacher, Joseph Martin, is coming close to the end.  The prosecution has evidence they have presented to the jury that the teacher: had searches on his home computer for “child porn,” confided to a church prayer group for men with sexual problems that he fantasized about young boys, and has numerous young boys accusing him of touching their groins and bare chests.

The news articles made mention that he took the stand to try to discuss and give explanations and excuses for various pieces of evidence.  The teacher admitted to giving pats and hugs—many teachers innocently do this.  But he also admitted kissing one boy on the cheek after his sibling died, and then admitted that he violated a school district order mandating that he not have any physical contact with another student or ever be alone with him.  He admitted violating the mandate.

I believe Mr. Martin is making a huge mistake in taking the stand to try and explain away his accusers.  There is no physical evidence, there are just accusations.  Of wrongful touching.  The touching could be seen as innocent, or as unlawful.  Rarely, in my experience, do accused child molesters get any empathy from juries, and instead they get vilified, as he is now in the media.  You should see his mug shot.  Of course, no attorney can force a client to take the stand, and we often encourage clients not to, because when they get attacked by a skilled District Attorney, their own words can be used against them.  So Mr. Martin has decided he would be better off trying to convince the jury of his innocence.  The mistake is that the jury will now see his demeanor, see him sweat under steady, skilled cross-examination attacks, and they may use his honest discomfort from cross-examination as a sign of guilt.  It’s a big mistake.  By not testifying, Martin could have allowed a skilled trial attorney to argue that this accusation, these accusations, were all misunderstandings of young, impressionable students.  You can argue and discuss the evidence as presented to the jury to try and focus attention on what is missing, instead of what’s there.  But when your client testifies, and if he made mistakes on the stand, it’s very hard to undo that during a closing argument at the end of a trial.  We will see what happens when the jury reaches a verdict.

Error de pederasta acusado a subir al estrado

por Sergio H. Benavides, 02 de agosto de 2014

       El juicio del acusado pederasta, profesor de la escuela de Concord, Joseph Martin, viene cerca del final.  La Fiscalía ha puesto en evidencia que ha presentado al jurado que el profesor: tenía búsquedas en su computadora para “pornografía infantil”, confió a un grupo de oración de iglesia para los hombres con problemas sexuales que fantaseaba con chicos jóvenes, y tiene numerosos jóvenes acusándolo de haber tocado sus ingles y pechos desnudos. 

      Los artículos de noticias mencionan que tomó el estrado para tratar de discutir y dar explicaciones y excusas por varias piezas de evidencia.  El profesor admitió a dar palmadas y abrazos — muchos maestros inocentemente hacen esto.  Pero también admitió que a un chico le besos en la mejilla después de que su hermano murió y luego admitió que violó una orden de distrito escolar mandando que no tuviera ningún contacto físico con otro estudiante o alguna vez a solas con él.  Admitió haber violado el mandato. 

      Creo que el señor Martin está haciendo un gran error en la toma de la base al tratar de explicar a sus acusadores. No hay evidencia física, sólo hay acusaciones. De tocar culposo. La conmovedora podría ser visto como inocente, o ilegal. Rara vez, en mi experiencia, que los  acusados abusadores de menores reciben ninguna empatía de los jurados, y en su lugar se consiguen vilipendiados, como lo es ahora en los medios.  Usted debe ver su ficha policial. Por supuesto, ningún abogado puede obligar a un cliente a subir al estrado, y animamos a los clientes a menudo no hacerlo, porque cuando son atacados por un fiscal de distrito calificado, sus propias palabras se pueden usar en su contra. Así que el Sr. Martin ha decidido que sería mejor tratar de convencer al jurado de su inocencia. El error es que el jurado ahora verá su comportamiento, ver sudar bajo ataques a través de los exámenes constantes, calificados, y pueden utilizar su malestar honesta de interrogatorio como un signo de culpabilidad. Es un gran error. Al no declarar, Martin podría haber permitido un abogado litigante experto para argumentar que esta acusación, estas acusaciones, fueron todos los malentendidos de jóvenes, estudiantes impresionables. Se puede argumentar y discutir la evidencia que se presentó al jurado para tratar de centrar la atención en lo que falta, en lugar de lo que está allí. Pero cuando el cliente da declaraciones, y si él cometió errores en el estrado, es muy difícil de deshacer eso durante un argumento de cierre al final de un juicio. Vamos a ver lo que sucede cuando el jurado llegue a un veredicto.

Free PowerPoint Slides:

Contact the Law Office for a Free copy of the PowerPoint slides (English or Spanish) of my Free Workshop, “Understanding the Criminal Justice System,” held Saturday, June 14, 2014.   DUI, District Attorneys, Defense Attorneys, evidence, misdemeanors, felonies, trial.  Search and Seizure.  Many topics covered.   Call: 415-867-5181 or email: sergi0@your1stdefense.com

Diapositivas de PowerPoint Gratis:

Comuníquese con el Bufete para su Copia Gratuita de las Diapositivas (Inglés o Español)  de mi taller de Junio, “Conociendo el Sistema Penal,” que se presento el 14 de Junio, 2014.  DUI, Fiscales, Abogados Criminalistas, evidencia, delitos menores, delitos graves, juicio.  Detención y búsquedas. Muchos temas tocados.  Llame: 415-867-5181 o Escríbeme para pedir su copia: sergio@your1stdefense.com

IMMIGRATION TIDBIT:  ALL ABOUT DACA (IMMIGRATION RIGHTS FOR CHILDREN)

by Sergio H. Benavides, April 15, 2014

Are you or a family member eligibe for D.A.C.A. (Deferred Action for Child Immigrants? A DACA young person can avoid deportation and get a work permit if they:

1. Arrived in the U.S. before 16 yrs. of age
2. Have been in the U.S. for at least the last 5 yrs.
3. Are in school, graduted from High School/GED, or honorably discharged from the Armed Forces
4. Do not pose a threat to society or public safety, and 
5. Are not over 30yrs. old

It’s supposed to be part of the DREAM Act, that has yet to pass Congress, but Pres. Obama ordered it to happen using his Executive Powers. Viva Presidente Obama!

PEDAZITO INMIGRATORIO —  TODO SOBRE DACA  (DERECHOS INMIGRATORIOS PARA NIÑO )

por Sergio H. Benavides, April 15, 2014

Es Usted o un miembro de la familia eligible para DACA (Acción Aplazado Para Inmigrantes Infantiles)? Una persona DACA puede evitar deportación y podrá sacar un permiso de trabajo, en general si:

1. Llego a los Estado Unidos antes de los 16 anos. 
2. Ha estado en los Estado Unidos por lo menos 5 anos. 
3. Esta en la escuela, o saco su titulo de secundaria, o salio de las fuerzas militares con honor. 4. No representa un peligro a la sociedad o al publico. y 
5. No tiene mas que 30 anos de edad.

Esto debe ser parte de la ley DREAM ACT, que todavía el congreso no la ha aprobado, pero el Pres. Obama lo ordeno actualizar con sus Poderes Ejecutivos.  Viva Presidente Obama!

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