The general rule is that an attorney cannot threaten criminal, administrative or disciplinary charges to receive and advantage in a civil case or dispute. However, this rule does not apply to contempt proceedings due to failure to comply with a court order.
Errol Cook, Esq.
(562) 209-1114
Monday, June 2, 2014
Friday, May 30, 2014
A Prosecutor's Duties
The Prosecutor's Duties When the Criminal Charges are Not Supported by Probable Cause
The rule is that a prosecutor, district attorney or city attorney, must never file criminal charges or continue to prosecute a case when the prosecutor personally believes the defendant to be innocent. This concept was outlined in Berger v. U.S., a 1934 Supreme Court case
California Rules of Professional Conduct 5-110 generally states that, if after the filing of the criminal charges the prosecutor responsible for prosecuting the case no longer believes the charges are supported by probable cause, the attorney must inform the court in which the case is being heard.
Errol Cook, Esq.
(562) 209-1114
The rule is that a prosecutor, district attorney or city attorney, must never file criminal charges or continue to prosecute a case when the prosecutor personally believes the defendant to be innocent. This concept was outlined in Berger v. U.S., a 1934 Supreme Court case
California Rules of Professional Conduct 5-110 generally states that, if after the filing of the criminal charges the prosecutor responsible for prosecuting the case no longer believes the charges are supported by probable cause, the attorney must inform the court in which the case is being heard.
Errol Cook, Esq.
(562) 209-1114
Wednesday, May 28, 2014
Prosecutor Believes the Defendant is Innocent
What Should a Prosecutor Do When they Personally Believe the Defendant is Innocent?
If a prosecutor personally believes that the defendant is innocent in a criminal prosecution, then they should dismiss the charges....or...reassign it to a prosecutor who actually believes in the validity of the charges. This creates an ethical problem in that a prosecutor with more experience with the facts of a case must either dismiss the charge or give a case to a prosecutor who knows little of the facts of the case. Additionally, when should this decision be made...at the arraignment or before trial? Should there be an office review of such cases and, if so, who should lead the review team?
Errol Cook, Esq.
(562) 209-1114
If a prosecutor personally believes that the defendant is innocent in a criminal prosecution, then they should dismiss the charges....or...reassign it to a prosecutor who actually believes in the validity of the charges. This creates an ethical problem in that a prosecutor with more experience with the facts of a case must either dismiss the charge or give a case to a prosecutor who knows little of the facts of the case. Additionally, when should this decision be made...at the arraignment or before trial? Should there be an office review of such cases and, if so, who should lead the review team?
Errol Cook, Esq.
(562) 209-1114
Monday, May 26, 2014
When Should a Prosecutor Refuse to File Criminal Charges?
Should the Prosecutor Pursue the Charges?
The general rule is that a prosecutor should not file criminal charges in a case when they personally do not believe that the criminal charges are supported by probable cause. This means that the standard for filing and/or pursuing charges is the prosecutor's "personal" belief. This may cause conflict between a superior/managing prosecutor and a subordinate prosecutor. Although the rule is clear as to a "personal" belief in the charges, many prosecutors, being fearful of being demoted or fired, are reluctant on dismissing a case despite this clear standard. With the current state of the legal profession, many prosecutors are fearful of losing their job. A prosecutor who is viewed as too lenient won't get promoted and will often times get stuck in unappealing assignments.
Errol Cook, Esq.
(562) 209-1114
The general rule is that a prosecutor should not file criminal charges in a case when they personally do not believe that the criminal charges are supported by probable cause. This means that the standard for filing and/or pursuing charges is the prosecutor's "personal" belief. This may cause conflict between a superior/managing prosecutor and a subordinate prosecutor. Although the rule is clear as to a "personal" belief in the charges, many prosecutors, being fearful of being demoted or fired, are reluctant on dismissing a case despite this clear standard. With the current state of the legal profession, many prosecutors are fearful of losing their job. A prosecutor who is viewed as too lenient won't get promoted and will often times get stuck in unappealing assignments.
Errol Cook, Esq.
(562) 209-1114
Sunday, May 11, 2014
A Prosecutor Dismissing a Case
What Happens When the Prosecutor Moves to Dismiss a Case?
If the prosecutor request the judge or judicial magistrate to dismiss a case because the prosecutor believes there is not sufficient probable cause to support the charges, along with the reasons, and the court denies the motion, then the prosecutor may continue the prosecution. This concept not only presents an ethical problem in that the judge is now encouraging a wrongful prosecution and is stepping outside of its role as a neutral fact finder.
Errol Cook, Esq.
(562) 209-1114
If the prosecutor request the judge or judicial magistrate to dismiss a case because the prosecutor believes there is not sufficient probable cause to support the charges, along with the reasons, and the court denies the motion, then the prosecutor may continue the prosecution. This concept not only presents an ethical problem in that the judge is now encouraging a wrongful prosecution and is stepping outside of its role as a neutral fact finder.
Errol Cook, Esq.
(562) 209-1114
Monday, March 3, 2014
Realignment Sentencing in California
Realignment Sentencing in California
The Legislature has amended hundred of felony statutes to specify that "imprisonment shall be pursuant to subdivision (h) of Section 1170." Starting October 1, 2011, a defendant sentenced under one of these statutes can only be imprisoned "in a county jail for the term described in the underlying offense." (Penal Code section 1170(h))
Errol Cook, Esq.
(562) 209-1114
The Legislature has amended hundred of felony statutes to specify that "imprisonment shall be pursuant to subdivision (h) of Section 1170." Starting October 1, 2011, a defendant sentenced under one of these statutes can only be imprisoned "in a county jail for the term described in the underlying offense." (Penal Code section 1170(h))
Errol Cook, Esq.
(562) 209-1114
Sunday, March 2, 2014
Realignment in Criminal Cases
Realignment in Criminal Cases
The new realignment statutes represent anther example of the state Legislature's inability to implement comprehensive legislation . The new statutes are a maze with sometimes contradictory subdivisions which sometimes raises more questions. There are three (3) main categories of change:
1) Conduct Credits (see Penal Code section 2933, 4019)
2) Sentencing for defendants convicted of non-serious, non-violent, and non-290 registrable felonies who are denied probation (see Penal Code section 1170(h))
3) Post Release supervision for felony defendants who are denied probation (see Penal Code section 3000.08 et.seq)
Errol Cook, Esq.
562-209-1114
The new realignment statutes represent anther example of the state Legislature's inability to implement comprehensive legislation . The new statutes are a maze with sometimes contradictory subdivisions which sometimes raises more questions. There are three (3) main categories of change:
1) Conduct Credits (see Penal Code section 2933, 4019)
2) Sentencing for defendants convicted of non-serious, non-violent, and non-290 registrable felonies who are denied probation (see Penal Code section 1170(h))
3) Post Release supervision for felony defendants who are denied probation (see Penal Code section 3000.08 et.seq)
Errol Cook, Esq.
562-209-1114
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