December 21, 2008

NPR Segment on Mortgage Fraud: Complicity of Lenders

The Great Pool of Money is a terrific and entertaining commentary on the mortgage crisis. The piece suggests the complicity of the lending institutions in causing the crisis. As an attorney representing mortgage fraud defendants, the piece suggests a line of cross examination: the lending institutions encouraged the practices that caused the bad loans in an effort to sell more mortgage backed securities. The hour long segment was aired on the NPR program, This American Life. A shorter version of the segment is also available. Click here to listen to this wonderful NPR segment.

Posted by Tim Warriner at 07:18 AM

December 18, 2008

Sacramento Area Mortgage Fraud Investigations

With the financial crisis underway, Sacramento has become a hotbed for mortgage fraud investigations. Our local United States Attorney's Office is actively investigating mortage fraud. The U.S. Justice Department has formed more than 40 mortgage-fraud task forces nationwide as prosecutors and investigators struggle with a flood of mortgage-related cases. The FBI reports that its mortgage-fraud caseload has more than doubled in three years to about 1,600 investigations. About 200 FBI agents are assigned to the cases, up from 120 a year ago. The cases are also investigated by Treasury Department agents and California Department of Real Estate investigators. Click here to view the United States Department of Justice press release concerning these investigations.

The cases are charged as conspiracies under 18 U.S.C. 371, alleging bank fraud, wire fraud, mail fraud, and money laundering. The cases are complex and document intensive. It is essential to retain a qualified federal defense attorney if contacted by law enforcement, or if there is any concern that an investigation is under way. Please contact me if you have any concerns about a possible investigation, or if you have been contacted by law enforcement. Keep in mind that many persons considered "witnesses" potentially face exposure to criminal prosecution, so retaining counsel is of utmost importance.

Posted by Tim Warriner at 11:13 AM

November 11, 2008

Proposition 9: Some Challenges Ahead

Proposition 9, the Victims' Bill of Rights Act of 2008, was just passed by a majority of the electorate. The goals of the proposition are important, and crime victims deserve all of our support and respect. However, the proposition creates dramatic change in the criminal justice system that may undermine the object of the initiative.

The Proposition does three things: it overhauls the parole hearing system by undoing the right of inmates to have parole considered on a yearly basis; it requires that institutions not release inmates early due to overcrowding by directing the Legislature to ensure sufficient funding; and it creates a series of enforceable victims' rights. This article discusses the latter of the Proposition's objectives.

The Proposition lists 17 rights it designates as "personally held and enforceable" by "victims." The term "victim" is defined to include persons harmed by financial as well as violent crimes, and includes family members of direct victims. The Proposition contemplates that victims can be represented by legal counsel during all proceedings.

Among the victims' rights created are the rights: to be protected from the defendant; to have the safety of the victim considered in fixing bail; to refuse to be interviewed by a defendant's attorney; to be notified concerning court appearances, and to discuss the case with the prosecutor; to a "speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings"; and to receive a copy of the probation report.

The three most significant rights created by the Proposition are the rights to refuse to be interviewed, to participate in the legal proceedings, and to prevent disclosure of information and records to defense counsel. I will discuss these rights individually as the represent the most significant change to the justice system.

Right to Refuse Interview. The Proposition states that victims have the right "to refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents."

Existing law provides that victims and witnesses have the right to refuse an interview by a defense investigator, or to set conditions for the interview. The Proposition requires that all "victims" be notified of this and other rights. Presumably a "victim advocate" associated with the prosecutor's office will also inform the victim of the right not to talk to the defense attorney or defense investigator. Simply providing this information will effectively allow the prosecutor to shut down all contact between the "victim" and defense counsel, and crime victims will take it as a suggestion that they should refuse to be interviewed. Persons claiming to be crime victims will be dissuaded from speaking with defense counsel. The victim will be able to get a court order that defense counsel not attempt to contact the victim or the victim's family. The result will be the court sanctioned dissuading of victims and witnesses from speaking with defense counsel.

There is simply no need for this right. Presently, a defense investigator must identify him or herself as a representative of the defendant when speaking with victims or other witnesses. Victims or other witnesses may not be harassed by an investigator and can refuse to speak, should they choose to do so. It would seem that the purpose of making the right enforceable by court order is to block defense counsel from contacting victims and witnesses. Interviewing all witnesses, including victims should they be willing to meet with an investigator, is essential to effective legal representation. Important information is obtained by having an investigator interview a so called "victim" as often the police interviews fail to address relevant facts and biases. This right will protect the lying or exaggerating crime "victim" from legitimate questioning.

Continue reading "Proposition 9: Some Challenges Ahead"

Posted by Tim Warriner at 09:04 AM

October 13, 2008

Upcomming Supreme Court Arguments

The Supreme Court will hear argument on Tuesday (10/14/08) in Oregon v. Ice (07-901). The issue in Ice is whether the Sixth Amendment requires that facts necessary to impose consecutive sentences (other than prior convictions) must be found by a jury or admitted by the defendant.

On Wednesday (10/15/08) the court will hear argument in Waddington v. Sarausac (07-772), and Hedgpeth v. Pulido (07-544). Both cases address federal habeas review of state jury instructional issues. Waddington involves whether federal courts on habeas review must accept state court determinations that jury instructions correctly explain state law regarding accomplice liability. The issue in Hedgpeth is whether federal courts on habeas review may determine erroneous jury instructions on which the jury may have relied to constitute structural error requiring reversal.

Posted by Tim Warriner at 03:58 PM

May 12, 2008

Baggy Pants--a Fashion Statement not Probable Cause

In In re Enrique S., California's Fifth District Court of appeal found an insufficient basis to conduct a patdown for weapons. A .pdf copy of the Court of Appeal's opinion can be downloaded by clicking here. The arresting officer asserted that the juvenile subject's baggy clothing made it possible for him to hide a weapon, but could not articulate any reason why they believed the minor actually possessed a weapon. A search of the minor yielded an illegal knife. While the juvenile court correctly noted that "90 percent of teenagers wear baggy clothing," the denial of the suppression motion was found to be error by the Court of Appeal. I was pleased that the Court of Appeal agreed with my reasoning. This is another example of why suppression motions should be brought at the trial level.

Posted by Tim Warriner at 07:27 AM

January 31, 2008

My Office Has Moved

My office will now be located at 813 6th Street, Suite 450, Sacramento, California, 95814. The telephone number is the same. The fax number is (916) 441-0970. The office is in the same suite as Clyde Blackmon's firm, Blackon & Associates. It is located in the Hall of Justice Building, which is across the street from the Federal Courthouse, and adjacent to the Superior Court and jail. This is a convenient location for my clients, and I look forward to working alongside my colleagues in the defense field.

Posted by Tim Warriner at 06:28 AM

Book Review: The Innocent Man

John Grisham's The Innocent Man is not only a great read but will help educate the public about the death penalty and the causes of wrongful convictions. This is Grisham's first non-fiction book. It is an engaging account of the wrongful conviction and death sentence of Ron Williamson--the innocent man. Grisham forces you to confront the suffering and injustice experienced by Mr. Williamson. His account of the terrible conditions on Oklahoma's death row is remarkable. The story is told through the point of view of Ron Williamson, which forces the reader to live through the awful experience. Grisham's books are, of course, widely read. I'm sure many of who will have read the book will become jurors, or at least informed citizens who will demand safeguards for the accused, and who will question the propriety of capital punishment.

Posted by Tim Warriner at 06:03 AM