CACJ Past President and Life Member Eric Schweitzer, together with attorney Rick Horowitz, authored a recent Daily Journal commentary addressing California’s bail system and the constitutional requirements governing pretrial detention.

The article traces the right to bail back to California’s original Constitution and argues that today’s challenges stem not from evolving law, but from institutional resistance to applying long-established constitutional standards. Emphasizing that liberty is presumed and detention must be justified by specific findings, the authors call for renewed adherence to due process principles that have always been embedded in Article I.

“To only release an edited version is not what we think is called for from the defendant’s point of view,” said Stephen Munkelt, executive director of California Attorneys for Criminal Justice, a Sacramento-based association of criminal defense attorneys. “If they’re editing things out, it’s probably the stuff that’s beneficial to the defendant.”

He also worries about the impact of the release of the body camera footage on a potential jury pool. Still, Munkelt said, some video is better than none, if only because defense attorneys have more grounds to ask a judge for the full, unedited video.

Read the whole article, please click here.

The Fresno County Superior Court has offered an increased compensation for an attorney to resume representation of the alleged mastermind of a 2019 Fresno mass shooting who had gone without counsel for several months. The court’s action follows an early November request by the ACLU of Northern California and the California Attorneys for Criminal Justice for the court to address compensation issues that left defendant Ger Lee languishing in the justice system with no attorney. The two civil rights organizations, in their Nov. 7 letter to the court, also asked for an immediate appointment of an attorney to represent Lee, and for the court to take the death penalty off the table, given his months-long lack of legal representation. On Friday morning, Fresno criminal defense attorney Michael Aed was reappointed to represent Lee with a modified compensation that he accepted.

Read more from the Fresno Bee
https://www.fresnobee.com/news/local/crime/article269496232.html

“There is an adverse effect because of the appearance” of the defendant behind bars, said attorney Stephen Munkelt, executive director of California Attorneys for Criminal Justice. Munkelt said the cells also point to more systemic issues in criminal justice.

“CACJ believes the right to liberty has been severely undervalued by the court in the last 40 years (beginning) with the War on Drugs,” the decades-long campaign to stem the illegal drug trade in the U.S., to deleterious effect on Black and brown communities from long prison sentences for non-violent drug offenders to mass incarceration."

Read more: https://www.sanluisobispo.com/news/california/article263740443.html

COVID-19 has had a devastating impact on prisons across the State. CDCR is seeing a tragic spread of the disease in prisons like San Quentin, Susanville, and many others. San Quentin alone has reported over 1,000 cases, and cases continue to rise across the prison system. Many inmates across the state are also considered high risk, making this spread even more concerning. These outbreaks are not isolated incidents and require broad reforms in order to be addressed.

It is more important now than ever for the State to respond aggressively to curtail the spread in our prisons. If significant steps are not taken to address this outbreak, we will continue to see cases skyrocket, and deaths mount, among the incarcerated population. While CDCR has made efforts to protect inmates and reduce exposure, the recent spike in prison cases shows that much more needs to be done.

CACJ, its members, and their clients are stakeholders in the design and implementation of policies to protect the lives of inmates across the state. To that end, CACJ request that the attached list of specific policy reforms be implemented to better protect our state’s prisoners.

Read the Letter here

1. Immediately reinstate temporary ban on receipt of new admissions to any CDCR facility and prohibit transfer of inmates between CDCR facilities for at least 90 days;
   

2. Before any transfer, CDCR all inmates should test negative for COVID-19 no more than 48 hours prior to the transfer;
   

3. Immediately release sufficient inmates from each CDCR facility so that the total population of each is less than the rated capacity; Prioritize those with non-violent offenses and those with less than 3 years left on sentences.
   

4. Begin an immediate review of inmates with less than three years to serve and release within 30 days on parole or temporary community supervision all who are not currently serving a term on a violent felony as defined by Penal Code §667.5(c);

5. Do not release any inmate from CDCR unless they have a negative test result for COVID-19within 48 hours prior to release. Make tests available 72 hours prior to release for any inmate falling within the criteria above;

6. Require the Attorney General, using his supervisory powers over local jails, to require release of all pretrial jail inmates held only on misdemeanors, and all pre-trial inmates held on felonies except those with charges listed in §667.5(c), and to release all convicted inmates with less than one year to serve, who have not been committed to the CDCR on community supervision;
   

7. Establish independent oversight of CDCR and local jails to ensure prompt compliance with the release requirements and oversight of COVID testing and management practices in each facility;
   

8. Conduct a thorough investigation into the cause of the spread of COVID-19 testing at San Quentin and Susanville state prisons, and adopted mandated protocols to prevent future outbreaks;

9. Provide health services and testing to anyone released from a CDCR facility;
   

10. Provide all inmates deprived of personal visiting privileges due to COVID-19 mitigation measures including unlimited free telephone and/or video conferencing with their attorneys.
    

11. Require a minimum of monthly COVID-19 testing of all jail and prison inmates, staff, employees, and sworn personnel.
    

12. Provide state and county inmates with either daily disposable or reusable face masks.

Rise up Defenders of Justice!

by Allison Williams
Assistant Public Defender in Sacramento’s Public Defender’s Office

8 minutes and 46 seconds of helplessness

8 minutes and 46 seconds of hopelessness

In 8 minutes and 46 seconds a man’s life was taken

In 8 minutes and 46 seconds the world was shaken

In 8 minutes and 46 seconds a man laid dead on a pavement

In 8 minutes and 46 seconds George Floyd’s death started a movement

As constitutional defenders

We need to start being contenders

Hold these politicians and police accountable

So injustices don’t become insurmountable

Through voting and activism, we can fight systemic racism

If not, Blacks will continue to be disproportionately imprisoned

Don’t let this moment in history

Continue to be a mystery

Rise up defenders of the constitution

Rise up defenders against oppression

We have to push for more police reform

Aren’t you tired of police killings being the norm?

We have to do a better job to inform

As defenders of justice let’s use our massive platform!

The police use-of-force needs to be reassessed

Let’s push our politicians to address

In seeking racial equality

Let’s help remove the appearance of impropriety

When investigating police brutality

Should it be done through an independent oversight committee?

Rise up Defenders of the constitution

Rise up against racist institutions

Our complicit silence

Will lead to more violence

If not, there will be more unrest

And social justice protest

Will we, the public, just sit idly by?

And watch our black men... like Arbery and Floyd die

We have to limit police qualified immunity

And take back our local community

Rise up Defenders of the constitution

Rise up Defenders; rise up against racist institutions

Defenders of Justice rise up and take the lead

So that there will be no more cries of, ‘I can’t breathe’!

Shared with permission from the author.

Read more here.

Do you know of any efforts to address police accountability and department transparency?

Luban: Currently, California Attorneys for Criminal Justice (CACJ) is proposing legislation in Calififornia creating an independent review body called the California Justice Commission, to review complaints of police misconduct and abuse, investigate cases and actually file charges and prosecute law enforcement officers.  Vesting power in an independent, civilian review entity would go a long way toward ensuring meaningful oversight. Police agencies and local district attorneys have a conflict of interest that prevents them from fairly investigating and disciplining their own officers."

Read more from Stanford Law

The organization’s package, titled the California Law Enforcement Accountability and Community Justice Act, includes recommendations like establishing a state justice commission, expansion of civilian review board authority, expansion of officer body cameras, and more."

Read more from ABC 10 here

It marked the first coronavirus death in the ranks of the L.A. County public defender’s office, and it comes as courts across California chart a path to reopen services and ease restrictions.

Ricardo Garcia, the county’s top public defender, did not identify the deceased attorney, but said the person worked in the West Covina branch office and died Wednesday.

“The loss of this deputy public defender is a tragedy, and our hearts reach out to family, friends, and the entire public defender’s office who lost a cherished colleague and friend,” Garcia said in a statement."

Read more from the LA Times here

Read more from Monterey County Now here

“About the worst place you can be in a ... pandemic is locked up in a jail or prison,” said Stephen Munkelt, executive director of California Attorneys for Criminal Justice, a statewide organization of criminal defense lawyers.

"We’re concerned about our clients being held longer, without getting the hearings they are entitled to in a speedy fashion,” he said.

Read more from the San Diego Union-Tribune here

Read more here

California Chief Justice Tani G. Cantil-Sakauye on Monday issued guidance to California trial courts seeking emergency orders to adjust or suspend court operations in the wake of the COVID-19 pandemic.

Current California law circumscribes the authority of the Chief Justice during emergencies. Presiding judges of county superior courts may petition the Chief Justice—as chair of the Judicial Council—for an emergency order to support their local needs.

The law allows local courts to request a number of relief measures, including declaring holidays to recalculate filing deadlines, extending temporary restraining orders, holding sessions elsewhere in the county, extending the time for a criminal trial to be held, and others. (Note: All emergency orders signed by the Chief Justice related to COVID-19 can be found here).

The Chief Justice’s guidance serves as a blueprint for requests that would be presumptively approved. Requests beyond those listed in the advisory will also be expedited, she wrote.

“California’s judicial branch is facing an unprecedented challenge with the COVID-19 virus,” Cantil-Sakauye wrote. “I recognize that this situation may require the temporary adjustment or suspension of court operations and procedures. I stand prepared to prioritize all such requests that may be submitted in the days ahead.”

Read more here.

An Urgent Address to Criminal Defense Lawyers from

CACJ President Eric Schweitzer

COVID-19 is inflicting irreparable harm upon the fair administration of justice in our state. It is more than a week since the Governor declared a state of emergency, yet the Chief Justice has not taken the steps to authorize a state-wide response. (See Gov’t Code §68115.) Absent Orders from the Chief Justice, courthouses are being closed and the right to timely processes delayed county by county on an ad hoc basis. Pre-trial defendants are being forced not only to endure prolonged and meaningless incarceration, but also to suffer in the worst imaginable environments with medical indifference to humane treatment a virtual certainty. In this milieu, entrusting the safety and welfare of ourselves and our clients to the tender mercies of jail administrators is unwise and irresponsible. We must act. 

We criminal defense attorneys have a mission-critical duty. Now, and with singular purpose it is we who must demand an end to judicial wavering on what is to be done. To spur intelligent action from the judiciary we demand release of nearly all pre-trial detainees, citations rather than arrest in all eligible cases, and clear standards for managing jury trials and general criminal cases during the pandemic. 

In any battle, timing is key. It is our prerogative, and our solemn duty now to spur decision makers into action without regard for worn out canards that blame the accused for their condition. This is our duty. Our destiny. We must carry it out now with vigor. Failure is not an option. 

As President of California Attorneys for Criminal Justice, and in the absence of any clear and decisive state policy regarding court closures and criminal cases during this pandemic, I ask you each to advance these demands in every courtroom:

1.      Release all pre-trial detainees not facing serious or violent felony charges. The dangers posed by keeping people in custody go up greatly in cases of a pandemic.  Very few if any misdemeanor defendants should be kept in custody. Courts should be more willing to release defendants. The dangers affect broad categories of people, including both defendants and jail staff. 

2.     Encourage courts to continue cases with out of custody defendants  for six months.

Lengthen the minimum time to hold a trial for in custody defendant from 30 days to 60 days for misdemeanors and from 60 to 120 days for felonies.  Lengthen the time to hold a trial for out of custody felony defendants to 180 days.  

3.     Permit out of custody defendants and attorneys to appear by telephone or by other electronic means.

4.    Permit courts to allow felony defendants to appear 977 with an order signed by the judge permitting the defendant to do so or an email from the Judge's clerk or the judge.  No written document signed by the defendant would be necessary; the defendant would not have to appear in court prior to the 977 motion being granted.  

5.     Insist that all jails and prisons have ready access to testing.

Resistance to these demands is inevitable.  Please remember that in pursuit of the fair administration of justice, you are not alone.  Already, criminal defense offices and organizations across the land, including CACJ, are standing with you. Be stalwart. Be forceful. Be as one. 

MARCH 14, 2020

ERIC H. SCHWEITZER

PRESIDENT, CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE

CACJ President, Eric Schweitzer said "What we're seeing here in Fresno County is a very improper procedure which gives us a lot of concern about what would happen if there really was something dangerous,". One of his clients is caught up in this, missing his last three court dates due to being under quarantine, though exhibiting no symptoms.

Read more here.

“In the end, it was an easy decision because we had seen what a remarkable lawyer, and a remarkable professional, he was.”
Jacqueline Goodman
California Attorneys for Criminal Justice past president

Read more here.

Long time CACJ member Mary McComb has been reappointed state public defender in the Office of the State Public Defender. McComb served as a deputy in the office from 1992 to 2010, and as a supervising deputy until her appointment as chief in 2016. Mary and her office collaborate with CACJ on legislation and court administration. Several members of her office have served as officers and Board members of CACJ, and we are proud to have her as an ally.

Read more here.

“In short, Andrews's counsel did nothing to counterbalance the prosecutor's view of their client or to portray Andrews as a human being, albeit one who had committed violent crimes. In fact, Andrews's counsel introduced almost no evidence in mitigation at the penalty phase. Despite this record of deficient representation, the California Supreme Court concluded that, under Strickland v. Washington, 466 U.S. 668 (1984), Andrews received constitutionally adequate representation at the penalty phase. That decision is fundamentally and objectively unreasonable.” (Slip opn. At 4-5)

Link to the opinion

Read more from the NYTimes here.