A jury in a Santa Ana courtroom will begin to hear opening statements soon from both attorneys in a case that threatens to become a highly emotional one – involving negligence of the city on the one hand, and parental supervision, or the lack thereof, on the other.

Attorneys for both sides of a motorcycle accident case have begun to present opening arguments before prospective jurors in the case involving two teenage San Juan Capistrano boys. In March 30, 2005, the two teenagers, Trenton Merrill, then a 14-year-old, and Scott Agostini,gucci bags outlet, then 13 years of age were riding a dirt bike. Merrill was the passenger. The pair crossed San Juan Capistrano Creek Road, and crashed into a BMW. Both suffered injuries in the motorcycle accident, but it was Merrill who took the brunt of the impact. He spent several weeks in the hospital undergoing a number of surgeries before his leg had to be amputated. Agostini was discharged a week after the accident with no permanent damage. The driver of the BMW, Emily Pastore, was not injured in the accident.

In the days after the motorcycle accident, Merrill and his family sued the city, as well as a city landscaping contractor. The city on its part, sued both Agostini and Pastore,moncler, but last week dropped Pastore from the suit.

In opening remarks, the attorney for the city based his arguments on the young boys and their temperament. According to him, the boys had been encouraged to take up the sport of motocross racing by their parents, and were prone to using the neighborhood as their own private motocross-racing track. He rejected outright the notion that these boys were na,gucci outlet?ve or innocent victims in this tragedy, and said that they were already semi-pro motocross racers by the time of the motorcycle accident. And this when the boys were just 13 and 14 years old!

In his opening remarks, the attorney for the Merrills, argued that the boys had absolutely no time to see Pastore’s BMW as they cut across the intersection because an overgrowth of heavy vegetation created a blind intersection, in the center of the median. Merrill, he contends, had been forced to lose his leg and let go of his dreams,replica uggs, because of the negligence of the San Juan Capistrano city that failed to make the intersection safe to use for riders. There was no record of any maintenance work done at the site of the accident by the landscape contractor. There were no warning signs that could have warned the boys. There was nothing but green brush that blocked the boy’s view, and led to the motorcycle accident.

The case has taken on emotional tones, especially with those who believe that the boys’ parents were being irresponsible in letting them ride dirt bikes in the streets. The attorney for the city actually used the words, “self centered”, and “disobedient.” We’re still a while away from hearing all the facts in this case, but there doesn’t seem to be any evidence that the boys were in the habit of using the streets as a racing track, as the city’s attorney has claimed. Neighbors of the Agostinis say that most of the boys’ riding was done at the racing track that his parents had built for him in the yard.

It’s ridiculous to pile all the blame on the parents, when the city has failed to keep the streets safe for people to use. It looks as if the city is trying to blame others without acknowledging that it too had a part to play in this tragedy. True, the boys may not have had a place on the roads, but then, that huge brush didn’t have a place on the center median that day either.




This article explains some defenses in Drug Cases.

A. The De Minimus Defense

Under the Criminal Code, the Superior Court assignment judge in the county where a case is pending can dismiss a prosecution that is too trivial to warrant a conviction. In cases involving trace amounts of a CDS, however, the courts have consistently rejected arguments that a dismissal under this section of the statute is justified. On one occasion, a court observed that "possession of any quantity of CDS, no matter how small, is part and parcel of the State's overall drug problem."

B. The Mere Presence Defense

Given the enormous variables associated with joint and constructive possession concepts, one need not be possessed of any great genius to recognize the potential of criminal liability the moment one enters a home, an apartment or a motor vehicle where a CDS is present. Indeed, as a practical matter, law enforcement officials will usually charge everyone found in the premises or the vehicle with a violation under the Drug Statute, whether the offense is mere possession or the more serious possession with intent to distribute, even though there is some evidence that indicates that one or some of the people at the site were ignorant of the presence of the CDS. The government will take this blunder-buss approach with the hope that the harshness of the sentence associated with the offense will coerce an accused to act as a "snitch" against the others. Unfortunately, this system of justice clearly nurtures a play-for-pay mentality, where the first person to ring the prosecutor's bell may very well walk away from a virtual hell-hole of imprisonment without liability even though the snitch may have been the most culpable of all the actors.

In analyzing cases of this nature, however, case law has established that the mere presence of a person at a location where CDS is found is not sufficient, in and of itself, to sustain a conviction for possession of a CDS or possession with intent to distribute a CDS. Unfortunately, there is a whole "constellation" of other factors that the government may use to overcome the "mere presence" rule in its journey toward a conviction. Some of those facts included: (1) statements that may have been made; (2) furtive or suspicious conduct before or after the CDS was detected; (3) the location of the CDS; (4) the arrestee's proximity to the CDS; (5) the arestee's relationship with other people; (6) the arrestee's ownership interest in the place where the CDS was detected; (7) the quantity of the drug; (8) the amount of cash in the arrestee's possession; and,(9) the nature and extent of drug paraphernalia located at the site.

C. The Fleeting Moment Defense

One who receives an object or substance from another and immediately recognizes it to be a CDS and then divests himself/herself of it shortly after learning of its illicit nature, may not be convicted of a possessory offense, because the possession was only for a "fleeting moment." The person who holds an object belonging to another just long enough to discover its character and promptly rejects control over it, can not be guilty of possession of the object because he/she did not develop the necessary intent to control it. This rule is narrowly drawn, however.

D. The Entrapment Defense

There are two types of entrapment recognized by the law. One is defined by statute (Statutory Entrapment). The other is influenced by constitutional considerations that finds their roots in the Due Process clauses of the state and federal constitutions. (Due Process Entrapment).

Statutory Entrapment is an affirmative defense, which the accused must prove by a preponderance of the evidence. The defense has both subjective and objective elements. The subjective element occurs when the government plants a criminal scheme into the mind of a person, who would not ordinarily have committed the offense. The objective element occurs when the government's conduct is so egregious in nurturing a person's criminal conduct as to "impugn the integrity of the court that permits a conviction." All issues associated with Statutory Entrapment must be determined by a jury.

Due Process Entrapment, on the other hand, concentrates exclusively on the government's conduct and the extent of the government's involvement in the commission of the crime. The standard is whether the government's conduct was "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness,moncler outlet." The analysis requires close scrutiny of the government's conduct, given all attending circumstances, including whether: (1) the government or the accused was primarily responsible for creating and planning the crime, (2) the government or the accused primarily controlled and directed the commission of the crime, (3) objectively viewed, the methods used by the government to involve the accused in the commission of the crime were unreasonable, and (4) the government had a legitimate law enforcement purpose in bringing about the crime. Unlike Statutory Entrapment, contests involving Due Process Entrapment issues must be resolved by the court. Notably, Due Process Entrapment can be proven even though a defendant fails to establish Statutory Entrapment.

Again, while Statutory Entrapment places the burden of proof on the defendant,cheap gucci bags, the burden of proof in a Due Process Entrapment defense is the government's responsibility. The state must disprove Due Process Entrapment by "clear-and-convincing" evidence. The reason for this rule is bottomed upon the recognition that the government created the events under scrutiny and since the government has better, if not exclusive control, over the evidence needed to prove Due Process Entrapment, the courts shift the burden to the government. In order for a person to obtain the benefit of this proof-shifting-burden, however, he/she must initially produce some evidence of Due Process Entrapment before the burden can be switched.

Copyright (c) 2008 Frank Luciano