Contra Costa Lawyer

October 1, 2017

By Lisa Hutton and Juliet Jonas

 

 

Juliet Jonas

 

Lisa Hutton

 

As clients push for more services for less money, attorneys and firm management are faced with keeping a careful eye on the bottom line while still providing high-quality legal services. One of the most efficient ways to keep clients happy in this regard is to put paralegals to work. The days of paralegals performing the same tasks as legal secretaries are gone. Each member of the legal team has a different range of responsibilities and abilities. Making the most efficient use of a paralegal’s skill set is one of the best ways to decrease overall legal expenses, while still maintaining a high level of legal support to clients.

 

First, what is a paralegal? California is the only state that regulates paralegals by statute, requiring one who calls him or herself a “paralegal” to meet specific educational or experience qualifications and continuing education requirements. Unless you have completed an ABA-approved program (or other paralegal certificate program, or been “grandmothered” in prior to December 31, 2003), it is unlawful for anyone to identify as a paralegal in California. Bus. & Prof. Code §6450(c). The ABA defines a paralegal as one who “performs specifically delegated substantive legal work for which a lawyer is responsible.”

 

Historically, paralegals were people and document managers. That is, we used to believe that paralegals only coordinated with experts and witnesses to ensure that everyone had the information and documents they needed to prepare expert reports, provide consultant services, and that witnesses were where they needed to be for depositions and trial. Paralegals in California are able to do so much more. According to California Business and Professions Code section 6450(a), a paralegal is one who “performs substantial legal work under the direction and supervision of an active member of the State Bar…that has been specifically delegated by the attorney to him or her.”

 

Keeping in mind that a paralegal must work under the supervision of an attorney, paralegals can (and should!) perform substantive legal tasks, which can lighten a supervising attorney’s workload, and decrease a client’s legal services bill. As with any employee, the specific skill set will depend on his or her strengths and weaknesses. By statute, paralegals can perform tasks like case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency, if permitted by statute. Bus. & Prof. Code §6450(a).

 

Here are some practical examples of what paralegals graduating from programs approved by the American Bar Association can do.[1]

 

Pre-Litigation

 

A paralegal is trained to do initial client intake interviews. A paralegal can also create the necessary fillable forms or templates related to client intake interviews. This means that a paralegal can be the point person in triaging a case, and provide attorneys with an early case overview, including a summary of facts, witnesses, potential causes of action, impressions of the client, and a basic discovery plan. Additionally, a paralegal can perform informal discovery by locating and taking statements from percipient non-party witnesses, research client and/or opposing party’s online presence, and research property history or financial status. As the case moves forward, having a paralegal involved from the first stages of a matter will result in time and resource efficiencies.

 

Pleading Phase

 

Drafting complaints and answers on Judicial Council forms or otherwise, are comfortably within a paralegal’s wheelhouse. Paralegals can also analyze an opposing party’s pleading to determine which, if any, motions attacking the pleading are appropriate, and prepare a draft of such a motion (and any required meet and confer letter) for review.

 

Discovery

 

It is in this phase that a paralegal can save a client the most money. With attorney supervision, a paralegal can prepare a discovery plan and implement it. This includes: preparing form interrogatories, special interrogatories, inspection demands, requests for admissions, and responses to each.

 

Paralegals are commonly used to prepare and track the service of, and production of documents in response to subpoenas. Even more than that, though, is that a trained paralegal who is empowered to act as a case manager, can keep track of all discovery served, responses prepared, discovery-related deadlines, and prepare meet and confer letters for discovery disputes. As all the involved parties begin to produce documents and Electronically Stored Information (“ESI”), a paralegal can organize and issue code the ESI to facilitate quick retrieval and production of redacted and bates stamped documents to the opposing parties. Paralegals can coordinate with outside vendors for the collection of ESI, and understand the ethical obligations of attorneys and their paralegals related to e-discovery.

 

Trial Preparation

 

At this point, an empowered and efficient paralegal is one of, if not the most knowledgeable about the details of the case on your team. He prepared the deposition summaries, which can translate into assisting you with your witness outlines for trial. She is the point person for general communication with the client, which can make her an asset when it comes to discussions about settlement and mediation. He has become the client’s friend; the person the client asks for when the attorney is unavailable. This relationship is invaluable as alternative dispute resolution is explored and attempted, and in helping get your client ready for the trial process.

 

Additionally, paralegals can research the applicable rules on pre-trial requirements, and prepare jury instructions, verdict forms, witness and exhibit lists, and even draft basic motions in limine.

 

Trial Presentation

 

Depending on the client, and how tech savvy your paralegal is, you may want to have her at trial with you. She may be able to operate the trial presentation software, ensuring that the jury is oohing and aahing during your opening and closing, and so the jurors pay special attention to conflicting testimony or complicated reports during your cross-examinations. If you are not using any visual presentation technology, then your paralegal can help you locate exhibits, and keep track of which exhibits have been admitted into evidence so far.

 

Overall, paralegals are an invaluable resource on your litigation team. Start giving your paralegal more substantive legal work in the litigation process to decrease the bottom line, and to free up your desk and calendar to work on strategy and trial!

 

Juliet R. Jonas, Esq. has been a core faculty member in John F. Kennedy University’s Legal Studies program since 2014.  Juliet earned her Juris Doctor (J.D.) from the UC Davis School of Law, and became an active member of the California State Bar in 2007. Juliet teaches Torts, Litigation I and II, and Legal Technology.  In addition to Juliet’s teaching duties at JFKU, she is a member of the American Association for Paralegal Educators, JFKU Faculty Senate Executive Board, JFKU Diversity Council, a board member of the litigation section of the Contra Costa County Bar Association, and a member of the Membership and Education Committee with the Contra Costa County Bar Association.

 

Lisa S. Hutton, Esq. has been the John F. Kennedy University Legal Studies Program Chair since 2005. In February 2009, she led the Program in achieving approval by the American Bar Association, giving JFK University the distinction of offering the only ABA-approved Bachelor’s Degree in Northern California. Before developing the Legal Studies Program, Lisa taught at JFK University’s College of Law, and was an associate attorney with Rankin, Sproat, Mires, Beaty & Reynolds practicing insurance defense litigation in Oakland, California.

 

[1] What a paralegal may not do is outlined by statute. See, Cal. Bus. & Prof. Code §6450(b). Notably, a paralegal shall not provide legal advice, represent a client in court, engage in conduct that constitutes the unlawful practice of law, or establish the fees a client will be charged for the paralegal’s services. Other than the specifically provided tasks, a paralegal can perform any substantive tasks you might assign to a new associate.

 

 http://cclawyer.cccba.org/2017/10/effective-use-of-paralegals-in-civil-litigation/

 

The San Diego Union - Tribune

October 12, 2017

By J. Harry Jones

 

 

This photo of the "finishing" workers laboring on the Escondido Canal shows Palomar Mountain in the distance; it was taken by Percy Cox in the 1890s. (The Escondido Historical Society)

 

In 1967, Robert Pelcyger was a newly minted lawyer who knew little about the rights of Native Americans and even less about water rights.

 

Then he met Patty Durro, an earnest, young woman from the Rincon Band of Luiseno Indians in northern San Diego County who was determined to reclaim her tribe's share of the San Luis Rey River.

 

She changed his life and the fortunes of five North County tribes that had been robbed of the water they had been promised by the government.

 

But it took Pelcyger 50 years to right the wrong.

 

 

Attorney Robert Pelcyger worked on the San Luis Rey Indian water case for nearly five decades. (J. Harry Jones)

 

 

The journey began with a stack of government contracts from the 1900s.

 

Pelcyger had been hired to learn tribal law for a government nonprofit that was providing legal services to rural California residents and was hosting a workshop at the University of California, Riverside when he was approached by Durro.

 

“She was there to complain because their wells were going dry,” Pelcyger remembers. “Patty Durro came up to me during the meeting and gave me some (1914) contracts and said, ‘you’re a lawyer, tell me what these mean.’

 

“I looked at them and saw all kinds of words I’d never seen before and didn’t understand, so I told her I’d take a look at it. That was the beginning of the San Luis Rey litigation.”

Soon, Pelcyger and a colleague formed California Indian Legal Services, a law firm specializing in Native American issues.

 

“During the next couple of years, I tried to find other lawyers who would take the case but wasn’t able to do that," he said. "It got to the point I had to file something so I did it in 1969.”

 

The goal of the lawsuit, which went all the way to the U.S. Supreme Court in 1984 and was followed by decades of settlement talks, “was to correct this historical injustice the government had created shortly after the reservations were established,” Pelcyger said.

 

The reservations were purposely located in areas with access to water so the tribes could irrigate crops in an otherwise arid environment.

 

“No sooner had the reservations been created when, through a series of measures, the government gave away the same water they had given to the Indians to Escondido and Vista," Pelcyger said. "The bands were dedicated to correcting the historical injustice.”

 

Water diverted from the San Luis Rey River ends up in Lake Wohlford near Escondido. From there it is piped to a treatment plant and then distributed to Escondido water users or piped another 14 miles to the Vista Irrigation District. (J. Harry Jones)

 

Canals were built in the 1890s diverting the San Luis Rey River to farmers in those two cities, making it possible for those communities to thrive. In the 1920s, Lake Henshaw near Warner Springs was built and a diversion dam took even more of the river water to the cities via Lake Wohlford in the hills just east of Escondido.

 

The result was that during dry years the river barely flowed through the reservations, the underground aquifer fed by the river suffered and the Indians wells would dry up. Even today, the two cities rely on the San Luis Rey water for between 20 percent and 30 percent each year.

 

The lawsuit was filed on behalf of the aggrieved tribes against Escondido and the Vista Irrigation District.

 

“What is ironic is that our adversaries were Escondido and Vista, but it wasn’t their fault to begin with,” said Bo Mazzetti, chairman of the Rincon Band of Luiseno Indians.

 

“The federal government gave away the water twice. It gave it to the tribes and then authorized the dam and the diversion.”

 

Fifteen years after the lawsuit was filed, Pelcyger found himself arguing before the U.S. Supreme Court.

 

The ruling of the court, which essentially said all the parties needed to start over, pleased no one.

 

“It was frustrating because it meant we had to keep litigating but in retrospect it turned out, many years later, ultimately the best outcome for all the clients.”

 

Instead of resuming litigation, a decision was made to go to the U.S. Congress, which in 1988 passed the San Luis Rey Indian Water Rights Settlement Act, which recognized the need to provide the tribes with a supplemental water supply to make up for the approximately 16,000 acre-feet of water they lost each year from the river. One acre-foot equals 325,851 gallons.

 

But there were still two more hurdles to overcome.

 

The first, which would take 15 years to resolve, was figuring out where the extra water would come from. In the mid-2000s, the All-American Canal, an 80-mile-long aqueduct near the U.S.-Mexican border that takes Colorado River water to the Imperial Valley and beyond, was lined to stop seepage.

 

The lining project saved 100,000 acre-feet of water each year. The first 16,000 acre-feet of that savings was earmarked for the tribes per the settlement act.

 

But just after the water source was identified, the second hurdle emerged.

 

Lawyers for the federal government decided to revisit the settlement and took the position that the word “supplemental” meant “replace or substitute.”

 

“The government interjected a new issue for the first time,” Pelcyger said.

 

They argued that the 16,000 acre-feet from the canal should replace the water that is taken from the river. The tribes said, no, the 16,000 acre-feet of canal water should be in addition to the water that had been diverted and that they should retain rights to the San Luis Rey.

 

Fourteen more years of argument and settlement talks followed. The feds never agreed to the tribe’s position, but did say they would accept the fact should Congress enact a law saying the tribes were entitled to the extra water. That happened in 2014.

 

A couple years more went by due to bureaucracy, but finally the 1988 settlement terms became law.

 

In May of this year, 50 years after first hearing about the river, the case came to an end.

 

The settlement guarantees five North County Indian tribes — Rincon, La Jolla, Pauma, Pala and San Pasqual — equal access to more than 5 billion gallons annually of Colorado River water to compensate them for the lost San Luis Rey River water.

 

The end result is that the water brought in from the Colorado River can be used by the five tribes equally. But should they not need the extra water, they must sell the excess water to the two cities at market rates.

 

“For Escondido, it means that this supply of water we’d originally been given in the late 1800s is now secure,” said Chris McKinney, Escondido’s utilities director.

“For us, it’s an enormous deal to finally have this settled and to also have the supply secured.”

 

“It was a long path to go down to get to this point,” said Marty Miller, president of the Vista Irrigation District’s board of directors. “But we finally worked our way through it. And on the backside we came out friends. We came out partners.”

 

The tribes rely now and will continue to rely on groundwater, which is made possible by the recharging of the San Luis Rey aquifer accomplished via water seeping into the ground from the river.

 

That means most of the extra water from the Colorado River will be sold by the tribe to the cities which use far more than that amount annually. There will always be a demand.

 

“For the Indians, it’s a source of income,” Pelcyger said.

 

Mazzetti said it’s a shame that almost all of the elders of the tribes who were there at the beginning of the litigation, not to mention generations of Indians before them, have passed on and could not see the final resolution.

 

“The impossible became possible,” the Rincon chairman said. “Where do you find new sources of water today? You don’t. Sixteen thousand acre-feet of water will be coming into the county -- a whole new source of water. That benefits the whole region."

 

For Pelcyger, the end of the case feels wonderful.

 

“I feel blessed to have had clients that are so dedicated and loyal,” he said. “Where else do you find clients that stick with the same attorney for 50 years?”

 

He said long before casino money came to the reservations, the bands were committed to correcting an historical injustice and weren’t going to compromise.

 

For him, that began with the 1967 Patty Durro meeting and continued with other tribal members for decades.

 

“She was a fierce advocate of getting back what the bands viewed as being rightfully theirs,” he said. Durro has become very private in recent years and did not respond to requests for interviews.

 

“It took a lot of courage for them to even enter the fray against pretty long odds,” Pelcyger said. “Their sense of history is so strong as is their sense of continuity,” “They wanted to rectify the injustices their parents and grandparents had to bare and also were looking forward toward future generations. It was never about immediate gratification.”

 

 

http://www.sandiegouniontribune.com/communities/north-county/sd-no-water-settlement-20170926-story.html

 

New York Times

October 12, 2017

By Timothy Williams

 

 

Larry Marsh, who is homeless, said workers at businesses in Sumter, S.C., call the police when they see him. He has been arrested more than 270 times for trespassing.

Credit Travis Dove for The New York Times     

 

     

SUMTER, S.C. — Larry Marsh has a history of mental illness and drug addiction. Homeless, he has no place to go. The police in this city have arrested or cited him more than 270 times for trespassing. In December, they got him four times in one day.

 

For this misdemeanor offense, Mr. Marsh, 58, has repeatedly served time in jail, and was even sent to prison. Not once has he had a lawyer.

 

Being represented by a lawyer is a fundamental right, enshrined in the Sixth Amendment and affirmed by the Supreme Court, which has ruled that anyone facing imprisonment, even for a minor offense, is entitled to legal counsel. But the promise has been a fragile one, with repeated complaints that people without means are stuck with lawyers who are incompetent, underfunded or grossly overworked.

 

In municipal courts that handle low-level crimes, poor defendants can face a worse problem: no lawyer at all. Recent reports detail a failure to provide lawyers in Nashville and Miami-Dade courtrooms, and in 2015, Charles E. Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, held hearings on the issue, saying the right to a lawyer was frequently ignored in misdemeanor cases.

 

In Mr. Marsh’s case, lack of legal assistance contributes to a senseless churn through the criminal justice system at great taxpayer expense. In July, a few hours after being released from prison, he was arrested and sentenced to another month in jail. He was due in court again on Thursday afternoon.

 

Defendants in such cases are typically offered a choice between a $250 fine, which Mr. Marsh cannot afford, or 30 days in jail. Jailing Mr. Marsh costs the city $1,650 a month.

 

He is arrested so often, he says, because as soon as he is spotted by employees of Sumter’s businesses — the post office, fast-food restaurants and convenience stores — they call the police.

Police Chief Russell F. Roark III said his officers had little choice but to arrest Mr. Marsh.

 

“He scares customers, so we have to intervene,” Chief Roark said. “But we attempt to do other things than make arrests,” like issuing tickets.

 

A lawyer could go beyond Mr. Marsh’s guilt or innocence, by pressing for solutions like treatment instead of jail.       

   

Mr. Marsh, who suffered a head injury as a teenager, has no one else to look out for him. He has long been out of touch with family members and says he has no friends.

 

His disability payments are disrupted every time he goes to jail, leaving him penniless on release. He is at the mercy of the South Carolina municipal courts, an idiosyncratic system in which police officers serve as prosecutors, judges are not required to have college degrees, and public defenders are often absent.

 

Tess Borden, a lawyer with the American Civil Liberties Union, said 139 of the state’s 212 municipal courts have no public defenders available.

 

The A.C.L.U.’s Criminal Law Reform Project filed a federal class-action lawsuit on Thursday against the city of Beaufort and the town of Bluffton, saying they are violating defendants’ rights. They hope for a ruling that sets a statewide precedent that all jurisdictions must provide lawyers.

 

Municipal courts, which handle traffic violations and other low-level crimes, are optional for South Carolina cities, which can choose to rely on state courts to hear the cases. They can be lucrative: the state’s 212 municipal courts collect some $20 million a year in fines and fees. Last year there was nearly one municipal case for every nine adult residents.

 

“Under South Carolina law, municipalities that choose to establish their own courts have a duty to fund public defense,” Ms. Borden said. “Yet the majority of cities and towns flout this obligation, prosecuting poor people without spending a dime on their defense. The result is a grossly unconstitutional system in which lawyers are luxuries available only to those who can afford them.”

It is not clear what entity has the ultimate authority for the state’s municipal courts. Tonnya K. Kohn, administrator for the state Office of Court Administration, said that her office played no role in oversight of municipal courts and that the State Supreme Court was responsible.

 

But the Supreme Court’s clerk, Daniel E. Shearouse, said that the Office of Court Administration was responsible.

 

In Beaufort, officials did not respond to requests for comment Wednesday. In an email, Debbie Szpanka, a spokeswoman for Bluffton, wrote, “Bluffton municipal judges inform defendants who appear before the bench that he/she has a right to counsel and if he/she is unable to afford to hire a lawyer that a lawyer will be appointed.”

 

In the Sumter courtroom where Mr. Marsh has been found guilty dozens of times, only a couple of the 85 cases received more than a few minutes.

 

Not a single defendant had a lawyer. Police officers, reading from arrest reports, acted as prosecutors and witnesses.

 

 

South Carolina municipal courts are an idiosyncratic system in which police officers serve as prosecutors, judges are not required to have college degrees, and public defenders are often absent. Credit Travis Dove for The New York Times

 

Judge Kristi Curtis told the few defendants who pleaded not guilty that they had the right to a jury trial, but that they would have to wait four to six weeks — meaning those who could not make bail would go back to jail, potentially waiting there longer than the 30-day maximum sentence most could have received.

 

Pausing, the judge added, “Or, I could decide the case right now.”

 

Nearly everyone chose a bench trial. Judge Curtis informed each of their right to a lawyer. Only one man requested one, but there was no public defender — a lawyer paid by the government to represent poor defendants — in the courthouse. The man had to return to jail until a later date.

The defendants who declined a lawyer were not told, though the law requires it, that a lawyer would be provided and paid for if they were unable to afford one. Nor were they asked, as they were supposed to be, whether they understood the risk they were taking by waiving their right to one. In interviews, Mr. Marsh said that he routinely declined a lawyer.

 

Some jurisdictions hire indigent defense lawyers for their municipal courts on a per-case basis, while Sumter and other cities have fixed-rate annual contracts in which public defenders’ offices receive a specific amount no matter how many clients they represent. Jack D. Howle Jr., the local public defender, has a contract to provide lawyers in municipal court. He declined to comment.   

Demographics suggest that many in the court would have qualified for a public defender: Almost one in five people in Sumter, a city of 40,000, live below the poverty line, and criminal defendants are generally overwhelmingly poor.

 

Still, while nearly one in five inmates in the city’s jail on that afternoon were held solely on municipal court charges, records showed none was represented by a lawyer.

 

In the courtroom, several defendants, clearly unnerved by the prospect of arguing a case in front of a judge, turned and desperately appealed to family members or friends for advice.

 

Some of the same police officers who were acting as prosecutors chuckled, smirked and whispered as embarrassing details were discussed.

The officers’ accounts went generally unquestioned by the judge. The defendants did not challenge them with a single question. Judge Curtis, who afterward declined to comment, found nearly everyone guilty.

 

Christopher Wellborn, a criminal defense lawyer, described the municipal courts as having a “banana republic patina.”

 

Mr. Wellborn said they were missing a critical step: having prosecutors evaluate evidence before deciding whether to file charges.

 

“You can’t be an independent witness to an event and then prosecute the same event and think you can be impartial,” Mr. Wellborn said.

The A.C.L.U. did not target Sumter, but its plaintiffs show how bewildered defendants can be when left to represent themselves. One, Dae’Quandrea Nelson, 19, was on trial in Bluffton for fighting at his high school when the arresting officer showed a video of the fight. But the person he identified in the video as Mr. Nelson was someone else.

 

When Mr. Nelson, who said he was never told of his right to a lawyer, interrupted to say so, the officer corrected himself.

 

Still, the trial lasted eight minutes, and Mr. Nelson was found guilty and sentenced to 30 days in jail, causing him to lose his job at a restaurant.

 

Tina Bairefoot, 39, had no lawyer when she told a municipal court judge in Beaufort County that a combination of medications after surgery had caused what she called a “psychiatric episode” involving hallucinations. The episode, which occurred at a Walmart, ended with her arrest on shoplifting charges.

 

The judge, though skeptical, told Ms. Bairefoot that she could return to court with letters from doctors substantiating her claim. But when she did, he refused to look at them, she said, instead gesturing to a door at the side of the courtroom.

 

“He pointed and said, ‘Off to jail,’” Ms. Bairefoot said, recalling the exchange.

 

Mr. Marsh, interviewed in July at the Sumter-Lee Regional Detention Center, said people in Sumter called the police before even speaking to him. “They are harassing me and I don’t know why,” he said of the town’s residents and the police.

 

Asked how long it would take before he was rearrested, Mr. Marsh shrugged. “No time at all,” he said.

 

A few days after he was let out, he was back in jail.

 

A version of this article appears in print on October 13, 2017, on Page A10 of the New York edition with the headline: In South Carolina, No Money And No Lawyer Often Mean Jail Time for Minor Crimes.

 

 

 https://nyti.ms/2kI9bsC

 

 

California Courts Newsroom

October 13, 2017

 

 

 

 

 

Courts Impacted by Wildfires:

 

Lake County Superior Court: Open

 

Marin County Superior Court: Open

 

Mendocino County Superior Court: Open

 

Napa County Superior Court: Cancellation of Jury Service Oct 16–20, 2017
All jurors summoned for Monday, Oct 16 have been excused. There will be no jury service that week. If you have questions, please call (707) 299-1150 or (707) 299-1100.  

 

Orange County: Open

 

Solano County Superior Court: Partial Closures, Calendars Rescheduled Oct 12 and 13, 2017
(Posted Oct 11): The Superior Court of Solano County has announced that Civil, Probate and Family Law Departments will reschedule cases on calendar for October 12 and 13, 2017. The Sheriff’s Office is assisting in fire safety efforts and the number of bailiffs has been reduced at the court. Parties will be notified of their new date by the court. The Clerk’s Offices are closing at 12:00 p.m. today due to fire advisory notices and air quality conditions in Fairfield. Drop boxes will be available at court locations in Fairfield and Vallejo.

All Criminal and Juvenile Departments will be open in both Fairfield and Vallejo. There will be no change in the criminal and juvenile calendars.

Jurors should check the court’s website or telephone number, as listed on their jury summons.

 

Sonoma County Superior Court: Full Closure Oct 10–Oct 13, 2017
(Closure began Tuesday Oct 10) Due to overnight developments and expected increase in winds through tomorrow, the Sheriff’s department is unable staff our courtrooms through Friday, so the court will remain closed on Thursday, Oct 12 and Friday, Oct 13.

 

Emergency Orders in the Judicial Branch:

 

Authority for Emergency Orders from the Chair of the Judicial Council
Government Code section 68115 authorizes the Chair of the Judicial Council (the Chief Justice) to issue judicial emergency orders, at the request of a superior court’s presiding judge, when war, insurrection, pestilence, or other public calamity, or the danger thereof, or the destruction of or danger to court buildings renders it necessary, or when a large influx of criminal cases resulting from a large number of arrests within a short period of time threatens the orderly operation of the courts.

Most requests for emergency orders are submitted by courts that face a large influx of criminal cases resulting from mass arrests or from courts affected by serious earthquakes, floods, fires, or other extraordinary circumstances that render a court facility partially or fully unusable. In an emergency order, the Chair of the Judicial Council can authorize a court, “notwithstanding any other provision of law,” to do one or more of the following, depending on the circumstances of the emergency:

Hold sessions anywhere within the county;
Transfer civil cases pending in the court to a court in an adjacent county;
Declare a holiday for purposes of computing time under certain statutes;
Extend the duration of a temporary restraining order;
Extend the time period for holding a preliminary examination;
Extend the time period within which a criminal trial must be held.

 

https://newsroom.courts.ca.gov/news/courts-report-on-impacts-of-wildfires

 

SFGate.com

Bay City News Service

October 13, 2017

 

 

Court services in three North Bay counties are being effected by the wildfires that have raged through the area since Sunday, California judicial officials said today.

 

Jury service has been canceled for next week in Napa County. All jurors summoned for Monday have been excused. Anyone with questions can call (707) 299-1150 or (707) 299-1100.

 

In Solano County, civil, probate and family law cases today will be rescheduled because there are fewer bailiffs at the court because of the wildfires.

 

Judicial officials said parties in those cases will be told of their new court date.

 

Also, the clerk's office closed at noon because of fire advisories and poor air quality in Fairfield. Drop boxes, however, are available at court locations in Fairfield and Vallejo.

 

Judicial officials said no changes have been made to the criminal and juvenile calendars.

 

Jurors should check the court's website or call the phone number on their summons for information.

 

Sonoma County Superior Court is closed today. Judicial officials did not say when the court will reopen. Marin County courts are open.

 

 

http://www.sfgate.com/news/bayarea/article/North-Bay-fires-court-Napa-Solano-Fairfield-12276915.php

 

ABA Journal News

October 13, 2017

By Debra Cassens Weiss

 

 

Shutterstock.com.

 

Investigators probing the cause of Northern California fires that have killed at least 31 people will be examining whether downed power lines played a role in igniting the blaze, raising the possibility of liability and fines for Pacific Gas and Electric Company.

The California Public Utilities Commission has asked PG&E to preserve evidence in connection with the wildfires that began during a windstorm, CNBC reports. As the fires erupted, emergency dispatchers received multiple reports of downed lines and exploding transformers, the San Jose Mercury News reports here and here.

 

PG&E has called reports about its maintenance “highly speculative” and said the utility was contending with a “historic wind event” that packed hurricane-strength winds. “Safety is our top priority,” said spokesman Donald Cutler.

 

Weather records checked by the Mercury News, however, indicated wind gusts varied from peaks of 30 to 41 mph at weather stations in Santa Rosa and near Napa. Gusts were as high as 79 mph at one weather station in the Napa-Sonoma area that was far from the site of major fires.

 

State law requires utilities to maintain power lines that can withstand winds up to 56 mph, according to the Mercury News. Utilities are also required to cut back trees to prevent fires. Utilities that don’t follow the law can be found liable for fines, penalties and damages in civil lawsuits.

 

The utility could assert an “act of God” defense, which would be weighed by jurors and the Public Utilities Commission.

 

The Public Utilities Commission fined PG&E $8.3 million after finding it responsible for the Butte Fire in Amador County, southeast of Sacramento, in 2015. The state also billed the utility about $90 million for the costs of fighting the 22-day blaze.

 

Lawyer Frank Pitre represented fire victims in lawsuits stemming from that fire. His firm has received calls from people affected by the latest fires.

 

PG&E has also been fined in connection with past fires. In 2015, the Public Utilities Commission fined PG&E $1.6 billion for a 2010 San Bruno explosion that killed eight people. Jurors also found the company guilty last year for violating federal safety regulations for its natural gas lines before the explosion.

 

 

 http://www.abajournal.com/news/article/investigators_probe_whether_power_lines_sparked_california_fires_raising_li

 

 

The Reporter

October 11, 2017

By Dom Pruett

 

 

Solano County Superior Court Clerk offices shut down at noon Wednesday, and all civil, probate and family law cases slated for today and Friday will be rescheduled, with fire advisories and poor air quality from the North Bay wildfires prompting the shutdown.

 

Parties will be notified of their new date by the court, the Solano County Superior Court announced in a Wednesday press release.

 

All Criminal and Juvenile Departments in Fairfield and Vallejo will remain open, however, with no changes being made to the calendar, the press release clarified. Furthermore, drop boxes in Fairfield and Vallejo courts will be available at court locations.

The press release added that the string of recent wildfires has resulted in the Solano County Sheriff’s Office reducing the number of bailiffs at the courts. All jurors are asked to check the Solano County court’s website or telephone, as listed on their jury summons.

 

The Atlas Fire, which has forced mandatory evacuations of Fairfield’s Green Valley neighborhood, has burned more than 42,000 acres in Napa and Solano counties as of 3 p.m. Wednesday, with only 3 percent containment, according to the California Department of Forestry and Fire Protection.

 

http://www.thereporter.com/general-news/20171011/fire-advisory-notices-poor-air-quality-shut-down-courts-in-Fairfield

 

 

ABA Journal News

October 12, 2017

By Lauren Kirchner, ProPublica

 

 

Shutterstock.com.

 

 

The National Institute of Standards and Technology announced last week that it is launching a new study of certain types of DNA analysis used in criminal prosecutions. These methods, “if misapplied, could lead to innocent people being wrongly convicted,” according to the institute’s statement. NIST will invite all public and private forensics labs in the U.S. to participate by testing the same set of complex DNA samples, and will compare the results, which will be published online next summer. Its goal is to develop a new set of national standards for DNA analysis.

 

This study comes at a time when labs are seeking to identify suspects based on especially small samples (such as “touch” DNA, which consists of just a few skin cells), and using software to help analyze mixtures of more than one person’s genetic material. ProPublica recently investigated the use of two such disputed methods by New York City’s crime lab: high-sensitivity testing of trace amounts of DNA, and the Forensic Statistic Tool, known technically as “probabilistic genotyping software.”

 

John Butler, a DNA expert and the author of several textbooks on forensic DNA testing, will be leading a team of scientists for the NIST study. He spoke to ProPublica Tuesday from the institute’s offices in Gaithersburg, Maryland.

 

Why this study, and why now?

 

Just in the past two years, there has been a huge rush to go into the probabilistic genotyping field, and people are jumping into this without really thinking about a lot of these issues: how sensitivity impacts what they’re doing, how “transfer” and “persistence” of DNA can impact their results, and what they’re doing in terms of the way that they set up their propositions that go into the likelihood ratios of their probabilistic genotyping programs.

 

The goal of this study is not to do a Consumer Reports on software, that’s not the purpose of this. I know that perhaps some commercial manufacturers may feel like we’re going to unjustly review their software — that’s not the plan. It’s to see, if presented with mixtures — and people are free to use manual methods or different software systems — what the different responses are. Nobody’s ever really looked at the results from the same samples, across different platforms, to see what happens.

 

There was a criminal case in upstate New York last year where two different commercial programs, TrueAllele and STRmix, came up with two different results for the same DNA evidence, or at least characterized the results in very different ways.

 

Yes, there are several things going on there. One is, how are they modeling the data collected from the evidence? So you may have the exact same DNA profile, but the modeling of what the profile means, and how the data is evaluated, can be different. But then the other aspect is, what propositions are put into it? So are you assuming that everyone [in a mixed DNA sample] is unrelated? All those things factor into what the final result is, and so that’s one of the reasons you see a difference.

 

I think to most readers, the fact that two programs could come up with two different results is really alarming.

 

Well I think we have to do a better job of trying to explain why those differences exist, and then to really tease them apart. Is it reasonable to get a vastly different result? And what does that mean, to a jury or a judge, or even to the police or prosecutor who are getting the results? Do they really appreciate what those results mean, or the range of possibilities that are there [in those results]? Just because you have a big number doesn’t mean that you got the right person. That kind of thing.

 

Will that be something that this study will look at — the way DNA results are explained, as well as how they are obtained?

 

They go together. If you can’t communicate the results, then you’re not really effective. Why generate them in the first place? That’s been my attitude: There’s just as much effort that needs to go into making sure you convey the right information, and not misinformation, with the DNA test results.

 

What will this study look like, and what do you hope to find?

 

We’ll start with a historical perspective on the literature, going back into the last 20 or so years. But it’s really been in the last 10 years that things have changed dramatically, because of the change in [testing] sensitivity. You have people looking at more and more mixtures, which they didn’t have when the sensitivity wasn’t as high, and they weren’t looking down into the weeds for their results. So I’ve been looking through all the proficiency tests that exist out there now that we can get our hands on, to understand what people have actually been tested for, in mixtures, and then how they’ve all performed, to get our current data points.

 

Then the other part we’re looking at is, DNA can get transferred between people, like when they shake hands. There have been lots of studies that have been done on this, but a lot of people don’t know about it. So this is to inform the forensic scientists as well. Understanding the implications of, if you have a really high-sensitivity technique and you’re putting it into a computer program to do testing on whether someone’s DNA is in there or not — just because someone’s DNA is there, what’s the meaning of that?

 

I know you’ve been looking into FST. One of the challenges is that you have proprietary software systems, and you’ll never be able to get to the bottom of some of those things. Getting access to the code for TrueAllele or for STRmix may never easily happen, because of the commercial environment that they’re in. And all the interlab studies we’ve ever done before have never really had these systems involved. We have now had a massive sea change in terms of labs moving towards probabilistic genotyping, and not really knowing what they’re doing, in terms of what will be their impact.

 

ProPublica has actually intervened in a federal court case to try gain access to the source code for FST.

 

My personal opinion is that companies have a right to proprietary information (which would include the source code so that a competitor does not have the ability to steal their hard work). But, with situations like DNA testing, it is important for users to understand what models are used, how data are processed, and the impact of assumptions being made. In other words, be transparent — which is a bedrock scientific principle.

 

I saw that NIST might also do a similar study on bite mark evidence in the future. So many types of forensic science, from firearms analysis to hair analysis to arson science, have been recently called into question. Some scientists even consider fingerprinting to be controversial now. But is it still fair to characterize DNA as the “gold standard” of forensic science?

 

In my talk that I gave back in 2015, I made an analogy to math. You have basic math, like two plus two equals four — basic arithmetic — that’s the equivalent of single-source DNA profiling. That works, and that’s your gold standard. When you get to sexual assault evidence — when you have a perpetrator’s and a victim’s DNA mixed together — that’s algebra. Usually there is a high level of DNA there, and it’s not an issue. But when you get to “touch” evidence, which is what we’re increasingly seeing in the forensic field, that’s calculus. So when we talk about DNA, it’s not that calculus, it’s not the touch evidence that’s the gold standard. The gold standard is the use of DNA with databases in either single-source samples or simple two-person mixtures.

 

And here’s the challenge: Labs are not prepared to do the complex mixtures. The reality is, all the labs’ proficiency tests, as I’m looking at them, are like basic math or algebra. So you’re going into a final exam on calculus, but you’ve only done homework on algebra and basic arithmetic. Are you going to pass that exam? That’s the reality of what we’re facing.

 

 ProPublica is a Pulitzer Prize-winning investigative newsroom.

 

 

 http://www.abajournal.com/news/article/putting_crime_scene_dna_analysis_on_trial

 

 

 

ABA Journal News

October 12, 2017

By Eli Hagar, The Marshall Project

 

 

Shutterstock.com.

 

 

Gov. Jerry Brown of California signed into law on Oct. 11, a sweeping package of criminal justice reform bills including a ban on the practice of billing parents for their children’s incarceration, which had been prevalent statewide for decades and was the subject of a Marshall Project investigation earlier this year.

 

The new law — introduced by two Democratic state senators from the Los Angeles area, Holly Mitchell and Ricardo Lara, and approved by the legislature on Sept. 6 — prohibits counties from assessing a range of fees against parents with children in the juvenile justice system, including those for probation supervision, electronic monitoring, drug testing, and the services of a public defender. Most significantly, it ends the nightly bills that mothers and fathers had long been made to pay for their children’s time in detention.

 

That practice is a nationwide one, rooted in a decades-old belief among policymakers that families are responsible for supporting their delinquent kids and should not expect government to pick up the tab.

 

Nineteen states and county-level juvenile justice systems in 27 others continue the practice. Often, a child-support model is used to determine the amount that parents are billed and then to collect their debt, including by sending collection agencies after them, garnishing 50 percent of their wages, suspending their driver’s license or charging them with contempt of court.

 

But around the country, juvenile defense lawyers and law students have begun to challenge this billing system, arguing that it is akin to taxing parents for their child’s loss of liberty.

 

Within hours after The Marshall Project story was published in March, Philadelphia ended its fee-collection practice. This followed months of pressure from the community. And in California, grassroots activists teamed up with lawyers at the East Bay Community Law Center in Berkeley to bar the imposition of the fees in several counties.

 

“The advocacy has been strong, I can respect that — I understand that the vast majority of parents with children in the system are facing financial challenges,” John Keene, legislative chair for the Chief Probation Officers of California, said in an interview earlier this year. “But the cost of providing for juveniles has gone up dramatically over the past few decades, as our juvenile halls have become de facto mental-health facilities. And those fees, especially in some of our smaller counties, have been pivotal to providing the more expensive types of programming and services for youth.”

 

Despite these fiscal concerns, the pressure from activists and the news coverage forced legislators to take notice of the issue and get the bill to Brown’s desk.“

We did not realize, until recently,” Mitchell wrote in a recent op-ed essay, “the onerous fees families must pay when their child becomes entangled in the juvenile justice system.”

 

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system.

 

 

http://www.abajournal.com/news/article/california_ends_practice_of_billing_parents_for_kids_in_detention

 

 

California Courts Newsroom

October 11, 2017

Contact: Merrill Balassone

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SACRAMENTO—Court of Appeal Associate Justice George Nicholson, of the Third Appellate District, announced his retirement effective Jan. 2 after 30 years on the trial and appellate bench.

 

Justice Nicholson began his career as a deputy district attorney and senior trial deputy district attorney in Alameda County before joining the California District Attorneys Association as executive director from 1976 to 1979. He then joined the state Department of Justice as senior assistant attorney general and special assistant attorney general, where in 1982 he helped draft the influential voter initiative, the “Victim’s Bill of Rights,” which included the rights of victims to seek financial restitution and to speak during sentencing and parole proceedings. Nicholson was deputy director for special projects in the Governor’s Office of Planning and Research before founding the National School Safety Center, a partnership of Pepperdine University and the U.S. Departments of Justice and Education.

 

Justice Nicholson joined the Sacramento Municipal Court bench in 1987, followed by the Sacramento County Superior Court in 1989. In 1990, he was appointed to the Court of Appeal, Third Appellate District, by Gov. George Deukmejian.

 

“I was fortunate to work alongside Justice Nicholson when I served on the Third Appellate District,” said Chief Justice Tani G. Cantil-Sakauye. “His warmth, his commitment to justice, and his erudition benefitted all who served with him.”

 

Said Administrative Presiding Justice Vance W. Raye: “George Nicholson is an extraordinary individual whose retirement will leave a huge void on our court. He has been a wonderful colleague whose opinions and incisive questions at argument have done much to shape the rules of law articulated by our court over the nearly 30 years that he has been a member. His influence has not been limited to his appellate opinions but extends to his involvement in a multitude of public and private initiatives to improve the legal system and to improve the lives of people generally. He has been a mentor to many, and an inspiration to all who have been fortunate enough to benefit from his amazing network of influential friends and his reservoir of creative ideas. He has committed to remain involved with the court’s outreach activities, including the Third Appellate District Historical Society, and will remain a fixture in the many civic projects he helped to form or vitalize, including the Unity Bar Association, the Court-Clergy Conference, and many youth programs related to his passion: baseball. We wish him well.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice George Nicholson (second from right) attends a Law Day event in Sacramento with his Third District colleagues in 2012.

   

A longtime history aficionado, Justice Nicholson has been active in promoting the roots of the Third Appellate District, including its first presiding justice Norton P. Chipman, a confidant of Abraham Lincoln and Ulysses S. Grant. He was involved in the state appellate court’s Centennial celebration in 2005 and facilitated educational outreach programs that allowed area students to sit in on the court’s oral arguments.

 

Nicholson was appointed by Chief Justice Ronald M. George to a Judicial Council working group to create a statewide observance of the 50th anniversary of Brown v. Board of Education and helped organize the state judicial branch’s first exhibition at the California State Fair on the landmark school integration case. (Nicholson often quotes Lincoln on the civic importance of state fairs: “they are ‘becoming an institution of the country…they bring us together, and thereby make us better acquainted, and better friends than we otherwise would be.”)

 

He was appointed by Chief Justice Malcolm Lucas to the first Commission on the Future of the California Courts and served as a member of its executive committee and chair of its Appellate Courts and Technology Committees.

 

He is a member of the California Supreme Court Historical Society.

 

Justice Nicholson received an A.A. from Oakland City College in 1962, a B.A. from California State University, Hayward in 1964, and a J.D. from the University of California, Hastings College of Law in 1967.

 

 

 

A former all-city high school, college, and semiprofessional baseball player, and member of the Central California Baseball Managers Association and of the Society for American Baseball Research, Justice Nicholson works with Branch Rickey, III, president of the Pacific Coast League, to promote the study of baseball and freedom. Together, they have planned and organized nine baseball and freedom events, including three opening nights, at Cooperstown Symposia on Baseball and American Culture, conducted annually by the National Baseball Hall of Fame. The first opening night honored Branch’s grandfather, also Branch Rickey, the lawyer and president of the Brooklyn Dodgers who signed Jackie Robinson to break Major League Baseball’s color barrier in 1947. In memory of former Presiding Justice Robert K. Puglia of the Third Appellate District, Justice Nicholson also helped plan events held at Raley Field, home of the Sacramento River Cats, to honor high school baseball (boys) and softball (girls) players who demonstrate skill and leadership both on the field and in their classrooms and communities.

 

He and Brenda have been married 58 years. They have two children, Peggy and Christopher, two children-in-law, Craig and Renee, and six grandchildren, Marty, Jessica, Jennifer, Katie, Karin, and Kean.

 

 

 https://newsroom.courts.ca.gov/news/appellate-justice-george-nicholson-announces-retirement