Will Bruzzo's Blog

Criminal Defense | Drunk Driving | Military Law

Monday, September 28, 2015

Army Investigator Says Bergdahl Should Not Be Incarcerated

bowe bergdahl desertionSgt Bowe Bergdahl could face court martial for the crime of Desertion for leaving his post in June 2009. At that time he was a private first class at Forward Operating Post Mest in eastern Afghanistan. Mest, a small base surrounded by Taliban fighters, had been established and maintained by the platoon he was in. The soldiers were going to be rotated out the next day and travel to another base to take a rest from their post. But by that morning Bergdahl had left the base, leaving his rifle behind. According to Maj. Gen. Kenneth Dahl who led an investigation as to what happened to Bergdahl, Sgt. Bergdahl left his post in order to reach another base. Bergdahl believed that his platoon was in danger because of questionable leadership. He was hoping to reach a bigger base and explain his concerns to a General. However Maj. Gen. Dahl’s investigation uncovered that there were no known problems or issues to deem the platoon in danger from improper command. It seems that Sgt. Bergdahl’s concerns were unfounded. The post had been successfully built and maintained by the platoon and was considered a success. Also there was no General at the Forward Operating Base Bergdahl was hoping to get to. As such, Bergdahl would not have found a General present in order to report his concerns. Perhaps surprisingly, prior to leaving his unit Bergdahl was a respected solider and most of those interviewed who knew him were flummoxed by his leaving his post in the manner he did.

The investigation conducted by Maj. Gen. Dahl revealed that Sgt. Bergdahl had been captured 12 hours into his departure from Mest. Bergdahl’s unit spent weeks searching for him, as they would for any missing soldier. Reports that soldiers had died trying to locate Bergdahl turned out to be false. And while they searched for him, he in turn tried to escape the Taliban. The investigation confirmed that he tried to escape at least 12 times. In one of those attempts he managed to escape for nine days before running out of food and water and being recaptured. In all Bergdahl spent 5-years as a prisoner to the Taliban; he suffered permanent injury to his legs and spine as a result of being a prisoner and is now physically unfit to serve.

Currently, his case is in military court before an Article 32 Officer which is the civilian equivalent of a probable cause hearing or preliminary hearing in California. The Article 32 Officer will determine if the Uniform Code of Military Justice (UCMJ) has been violated and if so he will recommend that the charges be forwarded to a Court-martial. While there seems little doubt that Bergdahl did violate the law by leaving without permission, it may also be determined that his 5 years in captivity having sustained permanent physical disability from that captivity, may be deemed sufficient punishment. At that time the Commanding General may permit Bergdahl to plead guilty to being Away Without Leave (AWOL) and discharge him immediately from the service; or the Commanding General can forego a court-martial altogether and administratively separate Bergdahl with an Other Then Honorable Discharge. He may also send Bergdahl to court-martial which could result in years in custody if he is found guilty. The Commanding General has complete discretion in how the matter proceeds.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547 4636

Friday, September 25, 2015

Former LAPD Officer Arrested on Murder Charges

henry solis LAPD murderOn Friday July 17, Henry Solis, a former Los Angeles police officer plead not guilty to charges of murder and assault with a firearm. The charges are from an incident on March 13 outside a bar in Pomona. Allegedly Solis shot Salome Rodrigues Jr. multiple times after a fight they had inside the club. Rodrigues Jr. was 23 years old and did not survive the gunshots. According to the LAPD Solis did not show up for work the next day and once Pomona PD identified him as person of interest Chief Charlie Beck fired the rookie officer. Authorities believe that Solis called his dad after abandoning his car. His dad Victor Solis, later told federal investigators that he drove his son to a bus station in El Paso, Texas. Meanwhile border surveillance showed both Solis’s walking across the border to Mexico. The younger Solis spent months hiding in the border city of Juarez with family members and trying to elude authorities. The older Solis was also arrested and convicted of lying to authorities regarding his son’s whereabouts.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547 4636

Thursday, September 17, 2015

How Will Proposition 47 Apply to Juvenile Cases?

orange county criminal defense attorneyIn San Diego County a judge has granted a juvenile the same adjustments to his charges and sentence under proposition 47 that adults receive. Proposition 47 permits certain cases like Possession of a Controlled Substance and Theft Offenses to be reduced to Misdemeanors because the law now recognizes all Possession offenses and most Theft offenses to be misdemeanors.

The juvenile, Alejandro, had been convicted of felony commercial burglary for taking three bottles of vodka and a bag of chips. With the new law, commercial burglary under $950 is no longer a felony and has a maximum sentence of eight months in jail. Alejandro was originally sentenced to three years in juvenile hall. Also since the charge is now a misdemeanor, an appeals court agreed the felony strike should be removed from the juvenile’s record and the DNA sample be destroyed as well. The district attorney of San Diego argued against allowing juvenile defendants the same adjustment to charges and sentences that adults receive, explaining that the ballot measure did not apply to juveniles. Another district attorney, Gilbert Otero of Imperial County, opposes changes to Juvenile sentencing as well. He does not agree with the destruction of the DNA samples taken from these minors before proposition 47 went into effect. Mr. Otero argues that having those samples is vital to solving crime and would be a loss to the criminal justice system. Other California counties are waiting to see how San Diego proceeds with these cases before they take action. According to the LA Times, only Los Angeles County automatically applied proposition 47 to juvenile criminal cases once it was passed.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547 4636

Thursday, July 16, 2015

Changes In The Law Make It Easier Than Ever To Get A Domestic Violence Case Dismissed

domestic violence lawyer orange countyPreviously, if a victim of a Domestic Violence case refused to testify against their spouse they could be arrested, held in contempt and incarcerated. Although this almost never happen the threat of it was enough to cause spouses who might not otherwise have testified to testify.

Then the California legislature passed California Civil Procedure (CCP) Section 1219(b). That law prohibited arresting or incarcerating victims of Domestic Violence or Sex Crimes for refusing to testify. Although the law does not prohibit the victims being held in contempt, it would appear the only punishment not prohibited is a fine.

As such, a spouse can refuse to testify against a Defendant charged with Domestic Violence and then take the stand and refuse to testify and only face a fine. [A spouse electing not to testify may want to consult with their own lawyer].

However, this does not mean the case is automatically dismissed. The Prosecution can still introduce statements of the victim that are deemed “excitable utterances” that incriminate the Defendant. Usually these statements are only admitted when the victim is describing what is happening to them to the authorities in an effort to get their assistance. These statements often occur during the “911 call” as the victim is frantically asking for help. However, outside of the victim (or another witness) describing an emergency situation as it is happening, these statements are hearsay and not admissible if the victim or witness has refused to testify or is unavailable. (See Washington v. Davis, 547 US 813 (2006), Crawford v. Washington 541 U.S. 36 (2004), Sixth Amendment, US Constitution)

In addition to CCP 1219(b) the holdings in Washington v. Davis, Supra, and Crawford v. Washington, Supra, have firmly established the right of a Defendant to be able to confront his accuser in court and ask questions of them pertinent to their accusations. Previously, especially in Domestic Violence cases in California, many statements of the victim could be introduced against the Defendant without the victim having to appear in court and be confronted by the Defendant. As such, the standard for admitting statements in court without the speaker being subject to cross-examination is now very high which benefits the Defendant. Also, while Domestic Violence cases have been notoriously difficult for the prosecution to pursue, these recent developments in the law have made them even more difficult to pursue to the benefit of the Defense. Call Mr. Will Bruzzo today to discuss your Domestic Violence case (714) 547 4636.

Criminal Law Updates by the Law Offices of William W. Bruzzo.

Monday, July 13, 2015

Mexican Drug Kingpin El Chapo Escapes Through Tunnel Under Prison

el chapo escapes prisonMexican Sinaloa cartel leader Joaquin “El Chapo” Guzman escaped from the Altiplano Maximum Security Federal Prison over the weekend. The prison was designed to house high profile criminals and had been reviewed by international agencies in order to verify that the facility could securely hold the drug lord. He had been constantly monitored by video cameras and the last security video footage was on Saturday the 13th, before he stepped into the prison showers. Guards noticed his cell was empty from the video feed and went to check the showers. The showers were empty and there was an opening on the floor with steps down a 13 ft. vertical shaft that lead to a tunnel. The height of the tunnel was sufficient enough for Mr. Guzman to walk upright through the almost mile long passageway. It was properly ventilated and illuminated with electricity. The end of the tunnel led to a construction site located in the middle of a field. The structure was made up of cement blocks and empty except for a stove and some clothes. Nearby residents explained that the house was built within a year and very quickly. One report says that it was an illegal construction.

Once authorities realized Mr. Guzman had escaped, they closed roads and airports, including Toluca International Airport. Mexican authorities informed border officials within Guatemala of the escape and provided a copy of Mr. Guzman’s photo. Media outlets have reported that some believe Mr. Guzman must have had assistance by people high up in the prison. Some guards have been sent to Mexico City for questioning after the escape. Online articles explain that the Sinaloa cartel has a lot of experience in building drug smuggling tunnels and with Mr. Guzman’s wealth, funding an escape would not be a problem. This is the second time Mr. Guzman has escaped from prison. He escaped in 2001 from a Jalisco prison and had eluded authorities until 2014. He was recaptured in Mazatlán by Mexican authorities. The U.S. has expressed its future cooperating in helping the Mexican government to find “El Chapo”.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636

Military Discharge Without Board Hearing

military discharge 6 yearsIf you are being separated from any of the military branches for positive urinalysis, a pattern of misconduct or commission of a serious offense you are not entitled to an Administrative Separation Board UNLESS you have been in the military for at least 6 years.

As such, the Command can decline to prosecute in a court-martial and decline to give you a hearing at a Board and still separate you without ever having to prove the case against you or show any proof you committed an offense. In practice, many Commands give the service member a board even if they have less than 6 years of service but that puts the service member at the whim of the Command or subject to demands on the unit’s resources.

Most E-1 through E-4 have not been in the military for 6 years so they are particularly vulnerable to this rule. However, in order for the Command to remove someone without a court-martial or a Board they must advise the service member of their intention and give him/her 5 days to submit written statements for consideration by the Command. By separating the individual in this matter without any sort of hearing the worst discharge the individual can get is a General Discharge Under Honorable Conditions. Unfortunately, the service member will lose the GI Bill Education Benefits with this discharge.

The advisement given to the service member must state the following or something similar in writing:

“(Date): I have been informed by my separation authority that I may receive a General (Under Honorable Conditions) characterization of service upon release from active duty based on (Act of Misconduct) This behavior is a significant departure from the conduct expected of a (Service member) and could be the basis for involuntary separation in accordance with (Pertinent Sections of Separation Manual of the particular branch) I was advised of my right to seek legal advice and to submit matters for separation authority’s consideration and that such matters may be submitted within 5 working days after acknowledgement of this notification. I wish (to) (not to) submit matters for consideration. (MCO 1900.16, Section 1004.)

If the Command fails to give this advisement and separates the individual without a court-martial or board hearing with less than an honorable discharge they have failed to follow procedure and the discharged individual should apply to have his discharge upgraded or request a correction of the military record.

Attorney Will Bruzzo, a sworn and certified military lawyer, recently had a case where the client refused Non-Judicial Punishment (Article 15) and demanded court-martial on a positive urinalysis; the Command withdrew the court-martial request (probably because of costs and time that would be spent by the unit putting together a court-martial) and told the service member he would be administratively separated. However, the Command never got around to putting a board together and tried to separate the individual without a board by giving the advisement above. However, there was some question whether the service member had actually knowingly ingested a controlled substance as the positive urinalysis came back for a non-traditional substance. As such,
Mr. Bruzzo submitted matters in consideration which included a sworn letter from him and a toxicologist challenging the reliability of the urinalysis result. As a result the Command gave the individual an honorable discharge preserving his benefits to include the GI Bill.

Mr. Will Bruzzo has more than 20 years of experience in military law matters and the Uniform Code of Military Justice (UCMJ) in addition to being sworn and certified as a military lawyer. Please contact him with any military law question at (714) 547-4636.

Military Criminal Law Updates by the Law Offices of William W. Bruzzo.

Thursday, July 9, 2015

California Law Will Authorize Videotaping of Police by Civilians

civilian filming police legalThe California Assembly has just passed a law authorizing civilians to film police in public while police are arresting someone or otherwise working. The bill (SB 411) heads to Governor Jerry Brown’s desk where he is expected to sign it.

While there was no law prohibiting videotaping of police arresting people, the California legislature wanted to make sure it was clear that videotaping of police in a public place is legal and that the police cannot stop a person from recording an arrest or other police action.

This law no doubt arose out of recent video tapings of police not only engaging in misconduct but in at least one situation a South Carolina police officer has been charged with murder for shooting a man in the back who posed no threat to him. In that case Officer Michael Slager shot Walter Scott eight times in the back. Prior to the video surfacing, Officer Slager claimed that Mr. Scott reached for his stun gun, but the video recorded by a random passerby, showed Mr. Scott never engaged in any violent conduct with the officer and was running from the officer when he was killed.

In a more ambiguous case Eric Garner was selling cigarettes on the street in New York without authorization; when he resisted arrest several police officers tried to wrestle him down which included putting him in a choke hold. Unbeknownst to the police, Mr. Garner suffered from a breathing condition that was exacerbated by the scuffle and he died.

To add to the disturbing nature of these events in each case the victims were African American and the police for the most part, are all white. A slew of other incidents have occurred across the nation. Without video tape it is unlikely the public would have ever learned the disturbing manner in which these individuals died.

Notably, it is not only minorities who have been the subject of police misconduct as illustrated by the Kelly Thomas case in Orange County, California. There, several videos made by passing civilians showed police repeatedly striking Mr. Thomas, a mentally ill white man, in the head with metal flashlights while he was pinned to the ground. He died of his injuries. While the police involved were charged, a botched prosecution led to their acquittal on murder and manslaughter charges.

Society has an interest in holding police accountable and the images shown on videotape can be hard to refute. Many people were unaware of the frequency and nature of police misconduct until these videos began to surface. These videos will cause police to act more professionally and have also led many people to take more seriously future claims of police misconduct when there is no video present.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636