Medical Board Metes Out Discipline Based on a Police Report

If you’re a doctor or other licensed healthcare professional in California, remember. Your board or agency can discipline you for alleged conduct in a police report even if you’re never charged with or convicted of anything.

Just this week, the California Court of Appeal ruled that the medical board could discipline a doctor based on a police report even though his criminal case was dismissed.

Here’s what happened. The doctor was arrested for possessing cocaine. As part of his plea deal, he successfully completed a drug treatment program, and the case was dismissed. But the medical board learned of the arrest and filed its own case against him. At the hearing, the doctor argued the board’s case was based entirely on the arrest report, which was a problem because the Penal Code said you can’t do that.

The case pitted two statutes against each other. On one hand, the Penal Code says that when you complete a program like the one this doctor did, your arrest record can’t be used “in any way” to deny you a professional license or certificate. But the Business and Professions Code says that, “notwithstanding any other provision of law,” an agency that oversees the healing arts can do just that. It can rely on an arrest report to discipline you even if you successfully completed such a program.

It wasn’t the first time this question had come up, but remarkably, it was an issue of first impression in the law, meaning it was the first time a court of appeal had to decide it.

The court, though, had no trouble deciding that the second statute was a straightforward exception to the first one. The clincher was that the Penal Code was amended this year to make that interpretation explicit. So the doctor lost.

In these cases, you should begin to defend your professional license and livelihood at the same time you begin to defend against a criminal case or investigation. Which is immediately. We can help you do both.

Happy 2018, California

Let’s celebrate because the new year marks the dawn of the state’s licensing program for commercial, recreational cannabis. It follows the voters’ approval of Proposition 64, the Adult Use of Marijuana Act, which we wrote about last year.

But hold your horses, too, because it’s just the beginning. Earlier this month, the state launched its online application system, and two weeks ago, it issued its first batch of temporary licenses to retailers, distributors, microbusinesses, and testing laboratories. These licenses go effective January 1 and allow previously accredited businesses to do business while they complete the application process.

So far, only a few cities and counties are ready to go on January 1. Others, like Los Angeles, have been getting ready and will start taking applications within days or weeks. Some have opted out entirely. And most haven’t decided one way or another.

It’s a work in progress, then, and the best advice for now is to cover your backside. Run your business by the book, and invest in high-quality legal research, analysis, and representation. Invest in compliance, in other words, because it’s the only sustainable way in the end.

In the meantime, seven more states are poised to join the growing majority that has chosen to legalize, regulate, and tax medical or recreational pot.

So it may just be the beginning, but the new year looks bright.

The Most Patriotic Thing

Here’s a gift for the holidays: James P. Gray relentlessly arguing against drug prohibition as he has for twenty-five years now. He calls it the best thing, the most patriotic thing, that he can do for his country.

If you don’t know Jim Gray, you should. He’s a former state judge from Orange County, California who used to be a Republican, now is a Libertarian, and ran for the Vice-Presidency of the United States in 2012. He’s also a national treasure. He served in the Peace Corps after college, the Navy JAG Corps after law school, and the U.S. Attorney’s Office after that. As a federal prosecutor, he handled some of the major drug cases of his day, and as a trial judge, he presided over the drug cases that flooded his courtroom. He saw the system from every perspective, and his experiences changed him.

Way before it was popular to say so, especially in Orange County, Judge Gray held a press conference to criticize the war on drugs. It was 1992, and he may have been the first sitting judge ever to do so. He risked his career and reputation in doing so, but he was right then as he is now. Most of the problems we associate with drugs, he says, are drug-prohibition problems, not drug-use problems.

“Drug prohibition is the biggest failed policy in the history of the United States, second only to slavery. And if you listen, regardless of what your interests are—I will tell you, regardless of what that is—be it education, healthcare, crime, terrorism, or the environment—I will show you to your satisfaction how it is made worse by our policy of drug prohibition.”

 

New DOJ Policy on Foreign Business Bribery

On the eve of the fortieth anniversary of the Foreign Corrupt Practices Act, the Justice Department has unveiled a policy that strongly encourages businesses to self-report any violations to the government on their own.

Those that do can presume that the government won’t prosecute them criminally as long as they fix the problem timely and cooperate fully. That’s probably good for shareholders and boards of directors, among others, but less so for managers, executives, or foot soldiers who get thrown under the bus.

The new policy was announced last week at a conference on the FCPA. It’s been added to the official policy manual for federal prosecutors. It takes most parts of the government’s recent pilot program and makes them permanent.

What does it mean to self-report voluntarily, cooperate fully, and remediate timely? It means a company must report a violation promptly and before the government gets wind of it. Also, it must share everything it knows about anything and anyone involved. Then it must create a sound compliance program based on its size and resources. And it must return all the money or property that’s subject to restitution, forfeiture, or disgorgement.

The government may still prosecute if aggravating factors make the business more culpable. That may happen, for example, if executive management was involved, or the conduct was widespread, or the company made a lot of money from it, or it’s happened before.

But even then, if the business has voluntarily self-reported, fully cooperated, and timely remediated, the government will recommend a criminal fine that’s at least 50% lower than it otherwise might be (unless the business is a repeat offender). Also, if the business has created an effective compliance program, the government likely won’t require the appointment of an outside monitor.

Finally, if a business doesn’t self-report but later cooperates and remediates fully, the government will recommend a fine that’s at least 25% lower than it otherwise might be.

Reasonable Minds Can Differ

But they will usually find more to agree on.

Case in point: this short interview with the junior U.S. senator from Utah.

He’s considered one of the more conservative members of Congress, but he’s also part of a bipartisan group that’s pushing to reform our criminal justice system.

As a former federal prosecutor, he’s asked how he feels about the justice system and what’s changed for him over time.

He points to one case in particular that, presumably, he didn’t charge. The defendant was a man with two young children. He sold very small amounts of marijuana to an informant three times. He also owned a gun at the time, though he didn’t use it or brandish it during any of the sales. Based on those facts and the way he was charged, the man received a mandatory sentence of 55 years.

Even the sentencing judge openly criticized the sentence, but he wrote that his hands were tied under the law. He also said that it was a problem only Congress could fix.

The senator remembered those words when he got to Congress, and now he’s trying to do something about it.

Why is he doing this when he’s supposed to be a conservative Republican? That’s exactly why he’s doing it, he says.

They May Be Intelligent, But Are They Wise?

Speaking of fair shakes, here is a wise word of caution about the emerging, expanding use of computer programs to evaluate people in the justice system, whether at bail hearings, sentencings, or elsewhere.

The author is a former software engineer at Facebook who’s now studying law at Harvard. Her point isn’t that we shouldn’t use or consult these programs, but we should know what we’re getting into and proceed with caution. It’s troubling, for example, if we use programs that no one in the field fully understands—not judges, not lawyers, not probation—because the manufacturer won’t disclose a proprietary algorithm.

She says we turn to computers in part to control for our own biases, “[b]ut shifting the … responsibility to a computer doesn’t necessarily eliminate bias; it delegates and often compounds it.” That’s because these programs mimic the data we use to train them, so even the ones that accurately reflect our world will necessarily reflect our biases. Plus, they work on a feedback loop, so if they’re not constantly retrained, they lean in toward those biases and drift even further from reality and fairness. So they don’t just parrot our own biases; they amplify them. She saw this phenomenon time and again as a software engineer.

She agrees that algorithms can work for good. They’ve reportedly helped New Jersey reduce its pretrial jail population, for example.

But let’s proceed with caution, she says:

“Computers may be intelligent, but they are not wise. Everything they know, we taught them, and we taught them our biases. They are not going to un-learn them without transparency and corrective action by humans.”

Commemorating a Courtroom Legend

One of the great professional experiences of my life was the year I spent working for a federal trial judge in Los Angeles. Fresh out of law school in 2005, I served as a law clerk to the Honorable Manuel Real, who was appointed by President Johnson in 1966 and has presided there in the district court since. He’s a walking, living legend of the law.

Judicial clerkships are sought-after jobs for good reason. You learn more about litigation in that year than you ever could by practicing law in any other capacity. It’s because you read and analyze a lot of briefs, and you watch and listen to a lot of lawyers. You see it all from good to run-of-the-mill to bad, and it’s not always what, or whom, you’d expect.

Last year, I was asked to write a piece to commemorate Judge Real’s fiftieth year on the bench, and recently, it was published in the newsletter of the Federal Bar Association in Orange County. Here’s a link to the newsletter if you’re interested, and you’ll find my profile of Judge Real on page ten. Or you can just keep reading below. You’ll hear about bank robberies, business litigation, and even a little gardening.


What do you say when someone celebrates fifty years on the bench?

Plenty in Judge Real’s case if you ask me, and since someone did, here’s my piece.

Who am I? Well, I was the Judge’s 62nd law clerk: one of two during the 2005-06 term, and one of 82 now overall. A lot of those clerks feel the way about him that I do, so I’m delighted to help commemorate this very special jubilee; it’s a deep and sentimental honor for me.

The Judge hired me when I was 26 years old, and he made a big impression on me from the beginning.

For one thing, he seemed like the strongest 82 year old in the world. I remember we flew to Arizona once to sit by designation, and at the airport, I found myself scampering ten or fifteen feet behind him because he was tearing along at a brisk pace with all of his luggage in tow. It was the gait of a man who knew where he was going. A lot of folks have marveled at his vitality over the years, and the Judge will often attribute it to his gardening, but I’m not sure you’d grasp what he means by that if you haven’t seen some of the gardening he’s done.

Here’s a story for you. A few years ago, I went to visit him at home, and when I got there, he was all by himself; no Mrs. Real, no family. He asked me to give him a hand with something, so we headed back toward the garden, and I saw that he was already in the middle of some heavy-duty project. Before I knew it, he brought over a ladder and power saw, and he said we were going to clear out some tree branches and foliage. That sounded good to me in the abstract, but then I found myself at the foot of a very tall ladder, staring up at my 86-year-old former boss, who happened to be a federal judge, perched on the penultimate rung. And above him, the tree branches loomed large and thick. It would’ve been a tough job for someone half his age.

Suddenly, I was pretty worried. And I didn’t like my options. I couldn’t ask him to come down from there any more than I could’ve told him not to go up in the first place. Not to someone like Judge Real, and not in his own house, anyway. But my mind was running and my adrenaline pumping. All I could think about — in addition to his falling and hurting himself — was how in the world I would account for that afterward to his family, or the world.

So I held onto that ladder as best I could and braced myself to break his fall or do whatever else.

But you know what? I didn’t need to worry. The Judge climbed that ladder to the top, stood firmly at its crest, and starting mowing down branches like nobody’s business. Before I knew it, I was getting covered down there with leaves and branches. At some point, he came down to take a break, and I offered to go a round. He didn’t go up again after that, and that was the end of it. But boy, what a moment that was.

And I have to tell you, I was astonished by that. I really couldn’t believe he did something like that at his age, and there was never a moment while he was up there that he seemed unsteady or precarious. The whole thing just blew me away.

But then the Judge is impressive in a lot of ways.

I remember a patent case we had that went to trial. It was a difficult, esoteric case, and the jurors had a hard time following along or even trying to. I found my own thoughts wandering, and I was supposed to be the apprentice law clerk. The Judge, however, actively presided over the trial and lobbed incisive questions from the bench. In the fog of a dry witness examination, he would get the testimony moving again with a series of short, focused questions. The longer I practice, the more I’m impressed by that case and how the Judge exerted the same energy and attention that one might summon in, say, a bank robbery.

Speaking of bank robberies, I remember one of those went to trial, too. The defendant was a middle-aged man who’d walked into a bank and passed a note. It was, like many bank robberies, a nonviolent act of turmoil and desperation. The guy had lost his job, his wife had left him, and his life was falling apart. So he went and robbed a bank. No gun or other alarming facts, just a guy with a note. It was sad and pitiable. He got caught, and now he was looking at a serious term of imprisonment under the federal sentencing guidelines.

There was no jury this time, and the case was tried to the court. I do recall the evidence was sufficient to convict the man, but then I wasn’t the trier of fact, though I’m not sure I would’ve come out differently if I was.

Well, the Judge acquitted him. I’m not saying the evidence was overwhelming, but there was plenty of room to convict if he wanted to. Although I’ve never asked the Judge about it, I believe it was a pure, unsung display of mercy and judgment by a judge whom no one would characterize as easy or soft. Mind you, the law of federal sentencing was in a state of upheaval at the time. The Supreme Court had just declared the guidelines to be advisory, not mandatory, but there was a lot of commotion about it, and the dust hadn’t settled like it has since.

Sometimes, the Judge disagreed with me, and those were the best lessons. One time, we got a motion for attorney’s fees after a disabled-access case had settled. The plaintiff’s lawyer was asking for $103,000, and the defendant, a restaurant, said it should be $13,000. I split the baby and recommended an award of $65,000. I argued that the lawyer’s hourly rate was reasonable and that the award, even if generous, would compensate him for the risk he took in bringing the case and his success in obtaining defendant’s compliance with the law. Or so I thought.

After the Judge reviewed my bench memo, he posed just one question: Could I research the court dockets for cases involving this plaintiff and lawyer? Sure thing, Judge. And so I did, and what I found was quite interesting. In the past three years, the plaintiff had filed at least 21 of these lawsuits in the California federal courts alone. In each case, his complaint made the same boilerplate claim that he’d fallen in a toilet at some restaurant. In two of these cases, he even alleged that it happened on the same day in two different restaurants — on opposite ends of the state. His lawyer in every case? You can take a wild guess.

The two had quite a racket going. They would file a lawsuit based on their boilerplate claims; bring in a consultant to identify every technical violation of disabled-access laws, few of which had anything to do with the plaintiff’s personal claim; settle the case for next to nothing but the defendant’s promise to bring itself into compliance; declare victory; and move for attorneys’ fees, which I suspect the two probably shared to some extent. But this wasn’t the Judge’s first rodeo, and needless to say, they didn’t get what they asked for.

There are a lot of things that you learn in a textbook, but when you learn by doing, and you peel back an onion that way, it tends to stay with you.

In that case, rather than acceding to the parties’ settlement, the Judge pursued a more just result, and he got it.

But that’s how he approaches work every day in my estimation. He’s a prototypical trial judge. During my clerkship, he would often remind us that, as a matter of fact, “we decide these cases.” He knows that it’s his job to decide them, and he understands that, while the court of appeals is there to review them, appellate review isn’t always an adequate remedy for injustice. He knows that, in nearly every case, the most important contest in the lives of those involved is the one decided in his court. And he knows that not everything that happens in a case or courtroom transfers to an appellate record, anyway. He wants to do justice.

Even generations of defendants whom he’s supervised on probation write to him, still — decades after he’s sentenced them or terminated their probation — to thank him for taking the time to judge them in a way that improved the balance of their lives.

That kind of stuff makes an impression on you, too.

In the end, everyone will have his or her critics — we all do — and fifty years of judging will earn you a few.

But I’ve learned that Judge Real cares only to do the best he can every day in law and in life. May we all do it so well.

His style may hark back to the brand of judge he used to appear before in his day, but his instincts are sound, his philosophy just, and his heart tucked securely in the right place. He is a good man in a preternatural sense, one of the very best I know, and I’m proud to call him a friend and mentor. Happy anniversary, Judge, and here’s to many more.

California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Impaneling a Jury of Your Peers

Do you have a civil or criminal case that’s heading to trial?

Starting next year, California will have new rules for picking a jury in both types of cases.

First, the rules for criminal cases. This is Assembly Bill 1541. It brings jury selection in criminal trials more in line with the procedure for civil trials.

The process will still begin like before. The court will question the jury pool to see if anyone knows the parties or witnesses or otherwise holds a bias that will keep them from being fair and impartial. The court may also agree to ask additional questions that the lawyers have submitted in advance. Then the lawyers will get their crack at it, though the court can set reasonable limits on their questions.

The new emphasis, however, will be on giving lawyers more time and room to question the pool and follow up on the answers. The court can still set limits, but they can’t be arbitrary, inflexible, or unreasonable. In setting those limits, moreover, the court must consider the complexity of the case and even the amount of time the lawyers want. It should allow them to follow up on the court’s questions as well as their own, and it shouldn’t screen their questions beforehand unless they’re really trying to indoctrinate the jury.

Next, the rules for civil cases. This is Senate Bill 658. It makes fewer changes to existing procedure but also puts greater emphasis on letting the lawyers conduct voir dire.

How will the courts apply these rules in practice?

That’s where the rubber meets the road.

Two Sides of the Same Coin

It’s not always easy to weigh the scales of justice.

Sometimes, like in the two stories from last week, the system treats people too harshly, and it ruins their lives.

Other times, though, someone’s unfairly blamed for not being harsh enough.

That’s the premise of this piece by a former chief criminal judge who was vilified for setting someone free without bail who then committed another crime.

But he made the best decision he could at the time. The guy was charged with failing to register as a sex offender. It’s a fairly common charge, and the guy was there for arraignment along with some thirty people.

It was a typical busy day in court, and the judge had to make a bunch of good decisions quickly. The prosecutor’s office called for a high bail amount that could have kept the guy in jail pending trial. But they always did that in these types of cases.

Under the law, the guy was presumed innocent in this case, and he was supposed to be released unless he was a flight risk or danger to the community. He didn’t seem to be a flight risk because he’d come to court on his own after being summonsed by mail. And he didn’t seem like a danger to the community, either. He wasn’t charged with a violent crime, and though he’d been convicted of forcible rape in 1993, that was over twenty years ago.

The judge heard from both sides and then followed the law, releasing him.

A week later, the guy was arrested on suspicion of rape and kidnapping. He ended up pleading guilty to lesser charges in that case in exchange for a seven-year sentence. But in the meantime, some hell broke loose.

The judge was called incompetent; he was called pro-rape; he was attacked on local talk radio and even the national news.

Here is how he dealt with it.

 

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