Press Release Featured MEMBER PROFILE – MICHAEL MCCABE CDBA CDLC June 2011 Newsletter

Criminal Defense Attorney San Diego CA Michael J. McCabePress Release

CDBA-CDLC Criminal Defense Newsletter




cops must have thought we were all retarded.’ – Statement

from Foreperson of Jury following acquittal of Eugene Davi-

dovich of all charges in the prosecution of him for posses-

sion for sale and sale of medical marijuana.”



ONE FOR: “A young girl who was charged with possession

of alcohol by a minor when she picked up a can of beer left

on the beach and was in route to put it in a trash can when

intercepted by an overzealous police officer. To his credit,

Judge Gallagher didn’t even wait to hear the defense case

before dismissing the charges.”


FAVORITE LAW/OPINION: “My favorite opinion is People

v. Konow, (2004) 32 Cal 4th 995. I love reading about



LEAST FAVORITE LAW/OPINION: “All the rest of them.”


FAVORITE VACATION SPOT: “Anywhere in Italy, except

Genoa. My wife and I are particularly fond of Venice

(Venezia) which we believe to be the most beautiful and

romantic spot in the world which we have visited so far.”


FAVORITE QUOTE: “There are a number of them by Mark

Twain. My favorite is, ‘It is better to keep your mouth shut and

appear stupid than to open it and remove all doubt.’ However,

as virtually everyone who knows me is aware, I have frequently

violated this rule, to my great chagrin. I am also partial to an-

other Mark Twain quote, ‘Whatever you say, say it with convic-

tion.’ I think I’ve managed to follow this one just about invaria-

bly. Finally, there’s my own victory mantra: There is no substi-

tute for total and complete victory.”


ADVICE TO COLLEAGUES: “Come up with a theory of

defense and stick to it. In other words, as Benjamin Frank-

lin Rayborn advised me, ‘Don’t mix chicken s**t with

chicken salad.’”

Read more of it here.

Myths Of The Criminal Justice System

Myth 1: You Can’t Be Tried More Than Once For The Same Crime

The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.

But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.

Myth 2: The Government Can’t Punish You For A Crime Without First Convicting You

Under federal sentencing law, once a defendant has been convicted of any federal crime, when determining a sentence, the judge can consider other crimes he or she may have committed. That includes crimes for which the defendant has never been charged and even crimes for which he or she has been acquitted.

In 2007 Antwuan Ball of Washington, D.C., was charged and tried for a long list of alleged federal crimes, including drug dealing, conspiracy, racketeering and murder. The jury was apparently unimpressed with the prosecution’s case. They acquitted Ball on all charges, save for a relatively minor $600 sale of half an ounce of crack. But last March, a federal judge sentenced Ball to 18 years in prison, a disproportionately long sentence the judge said was due to his disagreement with the jury’s decision to acquit on the other charges.

Myth 3: Ignorance Of The Law Is No Defense

Every introductory criminal justice class teaches this one. If you’re pulled over for speeding, you can’t claim you didn’t know the speed limit. If you’re pulled over while driving through, for example, in Virginia and the cop notices your radar detector, you can’t claim you had no idea the device is illegal in that state.

This particular “myth” is mostly true. And the problem is that it’s becoming nearly impossible to know what the law actually is. The U.S. Constitution outlines just three federal crimes — treason, counterfeiting, and piracy. Various projects have tried to count the number of federal criminal laws passed since, and many have simply given up. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally.

Read the rest of the story here.


The U.S. government’s hard-line policies on marijuana can clash with California’s more lenient laws

The U.S. government’s hard-line policies on marijuana can clash with California’s more lenient laws – and, in some cases, override them. For California medical marijuana patients arrested by federal Drug Enforcement Agency officials, local and state laws no longer apply. The consequences of a DEA investigation can be costly and, in some cases, life-destroying.

Read the rest of the story here.

Rep. Barney Frank (D-MA) and Rep. Ron Paul (R-TX) will introduce “bi-partisan legislation tomorrow ending the federal war on marijuana

Rep. Barney Frank (D-MA) and Rep. Ron Paul (R-TX) will introduce “bi-partisan legislation tomorrow ending the federal war on marijuana and letting states legalize, regulate, tax, and control marijuana without federal interference,” according to a press release from the Marijuana Policy Project.

More about this story here


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San Diego Marijuana Criminal Defense

Rochester Woman Arrested After Videotaping Police From Her Own Front Yard

Origins of this report Click Here

NEW YORK — In May, the Rochester Police Department arrested a woman on a charge of obstructing governmental administration after she videotaped several officers’ search of a man’s car. The charge is a criminal misdemeanor.

The only problem? Videotaping a police officer in public view is perfectly legal in New York state — and the woman was in her own front yard. The arrest report of the incident also contains an apparent discrepancy from what is seen in the woman’s own video.

That video, uploaded to the Internet this week, more than a month after Emily Good’s May 12 arrest, begins by showing a black male being questioned by a police officer at about 10 p.m. The red and blue flashes of a police cruiser illuminate the scene on Aldine Street.

“I just got out of the house, man, I’m sick, man,” the man who has been pulled over says. Other police officers search his car.

Then one of the officers, identified as Mario Masic in the arrest report, turns to the camera and asks, “You guys need something?”

“I’m just — this is my front yard — I’m just recording what you’re doing. It’s my right,” Good replies.

“Actually, not from the sidewalk,” the officer replies, incorrect about the legality of Good’s actions.

“This is my yard,” Good says.

“I don’t feel safe with you standing behind me so I’m going to ask you go into your house, you understand?” Masic says.

From there, the conversation escalates into a confrontation, with Masic alleging that Good is threatening his safety, and that she expressed other, unspecified anti-police statements before the videotaping began.

“Due to what you said to me, before you started taping, I think, uh, you need to go stay in your house, guys.”

Good’s public defender, Stephanie Stare, told HuffPost she believes from her conversations with several neighbors who were present that Good made no threatening comments before the tape begins.

Ryan Acuff, a friend of Good’s who witnessed the exchange and picked up the video camera after she was arrested, agreed.

“None of us was talking to them until they came to us,” Acuff said. “The first contact was definitely on tape.”

For more than a minute of the video, the officer and Good argue about whether she is threatening his safety. Finally, it appears, Masic has had enough: “You know what, you’re gonna go to jail. That’s just not right.”

Acuff claimed that he and Good were complying with the policeman’s order to return to their porch when she was arrested.

“The real reason they arrested her was because she was videotaping,” Acuff said. Both he and Good are activists who have previously protested foreclosures in the area.

Acuff has posted his own account of the arrest on Indymedia. He said he and Good were videotaping the traffic stop out of concern about police misconduct.

The police report of the arrest contains another apparent discrepancy from what appears on the video: Masic writes that the traffic stop targeted three individuals who “were all chalkem south gang members.”

“This gang is known for drugs guns and violence,” Masic notes, underscoring the danger of the situation.

The video, while dark, appears to only show one man led out of the car. Good’s public defender says that as far as she has been able to determine, only one man was pulled over.

The Rochester Police Department did not immediately respond to a request for comment.

In a statement released to the press, Rochester Police Chief James Sheppard said that while he had “researched” the incident, “With the case still pending and my unfamiliarity with the specific details, any assumptions at this time would be premature.”

The police department has launched an internal investigation.

Good is scheduled to appear in court on Monday, where her public defender hopes the case will be dismissed.

If that doesn’t happen, Stare said, she was not afraid of bringing Good’s case to a jury trial.

“She was well within her rights.”