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Humming in court backfires on defendant
Posted on: January 18, 2022 at 10:23:51 CT
Spanky KU
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He did that on advice of counsel?
https://www.ocregister.com/2022/01/17/humming-in-court-backfires-on-defendant-who-didnt-want-to-hear-fentanyl-warning/
As part of a plea deal in a drug sales case, Orange County prosecutor Claudia Alvarez tried to warn defendant Rogelio Garcia Jr. that he could be charged with murder if he ever sells fentanyl-laced drugs causing a death.
But Garcia didn’t want to hear it. With his hands shackled, Garcia couldn’t put his fingers in his ears. So on the advice of Deputy Public Defender Justin Cerrillo, prosecutors say, Garcia started humming in open court. And he kept humming — loudly — until Cerrillo gave him the sign to stop.
The novel legal strategy hit a sour note with Judge Cynthia Herrera, who rejected the plea deal and ordered Garcia to face trial and the prospect of a longer sentence.
It’s unclear whether the humming defense will catch on at Southern California courthouses, but it shows the lengths that defense attorneys will take to push back on efforts by prosecutors in some counties to charge fentanyl-related deaths as murders. Prosecutors don’t consider the deaths as overdoses, but as poisonings. By issuing a warning, they believe it will strengthen potential murder charges.
State law provides for a similar strategy in drunken driving cases, in which intoxicated drivers who have been previously warned of the risks and dangers of such behavior can be charged with murder if they cause a traffic death.
District attorneys in Orange, San Bernardino and Riverside counties plan to continue giving their warning — called an advisement — that dealers who sell fentanyl-laced drugs could be charged with murder. It is part of a campaign to stop the wave of fetanyl deaths in Southern California, but there is disagreement on whether the strategy will hold up in the courts.
Martin Schwarz, Orange County’s public defender, said the effort is illegal. Schwarz notes that the state Supreme Court repeatedly has ruled that overdoses can’t be charged as murders. Moreover, efforts to pass laws allowing murder charges in fentanyl-related deaths have been shot down in the Legislature, the most recent being SB 350 by Lake Elsinore Republican Sen. Melissa Melendez.
“The advisement that the D.A. is trying to get into the record is contrary to the law. All of our (lawyers) are pushing back on that,” Schwarz said. “At its core, it’s what my office is all about, pushing back on prosecution overreach.”
https://www.ocregister.com/2022/01/17/humming-in-court-backfires-on-defendant-who-didnt-want-to-hear-fentanyl-warning/
As part of a plea deal in a drug sales case, Orange County prosecutor Claudia Alvarez tried to warn defendant Rogelio Garcia Jr. that he could be charged with murder if he ever sells fentanyl-laced drugs causing a death.
But Garcia didn’t want to hear it. With his hands shackled, Garcia couldn’t put his fingers in his ears. So on the advice of Deputy Public Defender Justin Cerrillo, prosecutors say, Garcia started humming in open court. And he kept humming — loudly — until Cerrillo gave him the sign to stop.
The novel legal strategy hit a sour note with Judge Cynthia Herrera, who rejected the plea deal and ordered Garcia to face trial and the prospect of a longer sentence.
It’s unclear whether the humming defense will catch on at Southern California courthouses, but it shows the lengths that defense attorneys will take to push back on efforts by prosecutors in some counties to charge fentanyl-related deaths as murders. Prosecutors don’t consider the deaths as overdoses, but as poisonings. By issuing a warning, they believe it will strengthen potential murder charges.
State law provides for a similar strategy in drunken driving cases, in which intoxicated drivers who have been previously warned of the risks and dangers of such behavior can be charged with murder if they cause a traffic death.
District attorneys in Orange, San Bernardino and Riverside counties plan to continue giving their warning — called an advisement — that dealers who sell fentanyl-laced drugs could be charged with murder. It is part of a campaign to stop the wave of fetanyl deaths in Southern California, but there is disagreement on whether the strategy will hold up in the courts.
Martin Schwarz, Orange County’s public defender, said the effort is illegal. Schwarz notes that the state Supreme Court repeatedly has ruled that overdoses can’t be charged as murders. Moreover, efforts to pass laws allowing murder charges in fentanyl-related deaths have been shot down in the Legislature, the most recent being SB 350 by Lake Elsinore Republican Sen. Melissa Melendez.
“The advisement that the D.A. is trying to get into the record is contrary to the law. All of our (lawyers) are pushing back on that,” Schwarz said. “At its core, it’s what my office is all about, pushing back on prosecution overreach.”
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Humming in court backfires on defendant - Spanky KU - 1/18 10:23:51
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