Orange County Criminal Lawyer Blog

Many are familiar with the quotation "Better that ten guilty persons escape than that one innocent suffer." Those words were written by English jurist William Blackstone in the late 18th century and are inarguably a founding principle of the American system of justice. However, as with all principles, there are always situations in which they are tested, and if it is a true principle, it is upheld and endures. Perhaps most indicative of the importance of a principle is whether it is fundamental enough to survive even the most extreme cases when it feels difficult, even abhorrent, to apply.

Thus, cases involving children as victims, the most sympathetic victims possible, are a true test of this principle. One such case was the Casey Anthony trial in Florida. The prosecution had a theory that Casey was the murderer, maybe even a theory that was more-likely-than-not to have occurred, yet everyone who was watching closely knew that if we started from the presumption of innocence, and we reviewed every piece of evidence assuming that Casey was not guilty, then there was no way for the prosecution to eliminate all reasonable doubt of Casey's guilt. No matter how much her attitude and behavior made us wish they could.

Another genre of cases that test our system's Blackstonian principle at its extremes are those involving the post-partum psychosis defense. It is likely that this defense will be used in an upcoming case in Orange County, the one involving the Sonia Hermosillo, who is alleged to have intentionally dropped her seven-month-old son off the 4th floor of a hospital parking garage.

Part of the reason why cases such as this are a test to our system and its foundation upon the presumption of innocence is because of the inflammatory nature of the details of the allegations. Everyone who hears the allegations naturally feels anger toward a mother who is even capable of doing this to her child. And it is hard to conceive of more ammunition for the prosecution in a trial situation, as they can talk about the innocence of the child, who probably asked the question, "why is mommy letting me fall?" right before his death. Or turn to the blow-by-blow actions of the defendant, as she unbuckles the baby from the car seat, holds him by his arms, and walks briskly to the far wall of the parking garage, hoists his 20 lb body on top of the concrete, then, feeling the anger well up inside her, violently pushes her son over the side.

When a prosecutor can be cinematic about the depravity of the defendant's crimes, it sears an image into the minds of the jurors, who listen to the rest of the trial, but not without that image in their heads. Then they retire to impartially deliberate, but not without that image in their heads. Are they able to overcome that image, and reach the truth of what happened by weighing the evidence impartially?

If they are not, then our system has failed. Because no matter how depraved the actions of a defendant might seem, a larger truth may always be at play. For example, with mental health defenses such as the postpartum psychosis defense, the truth is that mental health problems are real, scientifically provable, and actually alter the reality of those suffering from them to the point they might unknowingly commit horrible acts.

When facing a mental health defense, prosecutors inevitably list all the tasks surrounding the incident that the defendant performed correctly as evidence that they "knew what they were doing." This case is no exception, as in a statement to the press, the Deputy District Attorney handling the case pointed out that Hermosillo validated her parking ticket before leaving the parking garage that day as evidence that "she did know what she was doing."

But whether a defendant was capable of performing the surrounding tasks is not the issue in such cases. What matters legally is whether she knew right from wrong at the time, which has nothing to do with whether she could think rationally about such minutiae like parking tickets. Clinical Psychiatrist Rita Suri was quoted in a recent L.A. Times article explaining that while 80% of new mothers experience postpartum depression in some form, 1 in 1,000 will experience it in a severe form, wherein they lose touch with reality and can have psychotic hallucinations, often religious ones. It is therefore very possible that a mother suffering from such severe psychosis could believe she is doing the "right" thing in killing her child, and simultaneously remain able to take care of her parking fees afterwards.

Whether a mother who actually suffered from such psychosis is then convicted in court of murdering her child is a daunting test for whether our justice system will actually allow an innocent person to go free despite the most inflammatory of circumstances.

Saied Malanar was arrested over the weekend after a 17 year-old intern who worked at his store told police that she was shown pornographic images by Malanar on his office computer.

Mr. Malanar will be arraigned tomorrow in Orange County Superior Court. He is in custody at this moment on $1 million bail. While Mr. Malanar agonizes in an Orange County jail about what lies ahead for his future, his family, his freedom, and every other aspect of his life, it bears exploring what issues will become crucial to him in the coming months as he makes his way through the criminal justice system.

First, as always, these are only accusations, and must remain so unless and until a jury enters the room after hearing all the evidence and utters the word "guilty." There is a chance, based on what has been reported, that he did exactly as the accuser alleges. There is also the equal chance that he did nothing that she alleges. The fact that he has been arrested means nothing more than the accuser went to police and made a statement. Unfortunately, that is truly all that is needed in our justice system for the legality of an arrest to be upheld. Yet to be explored are all of the circumstances surrounding these accusations, such as the mental health of the accuser, the accuser's motives for making such a statement, along with every other piece of evidence that tends to exonerate Malanar, which, of course, was not considered by the police/prosecution, who see it as their job to act on the facts that show he is guilty, and -- no doubt with "utmost faith" in the system to bring out the truth -- let the rest "come out in the wash" later.

All of this is what Mr. Malanar is quickly realizing right now: that the police didn't consider his side of things before arresting him; that they did not consider the impact of the arrest on his business, his life, his family; that, in the justice system, there are hundreds of police, judges, court personnel, jail personnel, and support staff, all of whom are employed to make sure he is arrested and held, and brought to court on time, and prosecuted effectively; that against these hundreds of people, there is only one person who will fight for him: his defense attorney.

What will be interesting is what law Mr. Malanar will be charged with violating. It may surprise some that there is no law in California that specifically bans showing porn to a person under 18. There are, however, more general laws designed to protect minors from people who would "contribute to their delinquency" or otherwise "endanger" them. There are also laws to protect people under 18 from individuals who, for that individual's own sexual arousal, talk or act sexually around them. Is showing porn to this 17 year-old any of those? Not necessarily, and therein potentially lies part of his defense.

As soon as Mr. Malanar retains an attorney to fight his case, that person must passionately and voraciously immerse themselves in the law and facts surrounding these accusations to have any chance in the system, especially Orange County's. For his sake, let's hope he hires an attorney willing an able to do that for him.

Recently, an Anchorage, Alaska jury convicted a woman of child abuse after viewing a videotape that the defendant herself had made. In the video, a five-year-old boy, one of the twins she and her husband adopted from Russia three years ago, is being force-fed hot sauce and then crying loudly in a cold shower.

"Child abuse" cases often raise questions about what actions of a parent should be allowed by law and what shouldn't. Some people find it surprising that there are no exact standards in the law and that what gets prosecuted/convicted depends on the composition of the jury pool from community to community. For example, some cultures permit or even encourage disciplining a child with corporal punishment, while others view nearly any form of corporal punishment as wrong.

The law in California actually allows this variance between cultural standards to exist, by being ambiguous itself. When a jury is seated in a criminal child abuse case, they are instructed by the court that to find the defendant guilty of child abuse, the People must prove that:
1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; and that
2. The defendant did not act while reasonably disciplining a child.

If a jury finds both #1 and #2 to be true, they are instructed that they must find the defendant guilty of child abuse.

Obviously, the answers to these questions vary across cultures, communities, and age demographics. There are certain extreme acts that everyone can agree would constitute crimes, e.g., if the child ends up with a broken bone or permanent scarring, nearly everyone would agree that this should not be regarded as "reasonable discipline," and should be considered child abuse under the law.

But what about, for example, belting a child in a manner that leaves welts that are visible for a few days? There are some communities in which a group of sickened, offended jurors would hand down a swift conviction on those facts, but others in which the jury would quickly acquit or even praise the parent/defendant for doing what it takes to discipline their child. It seems unfair or unjust to say something that is a crime in Newport Beach would not be a crime in Westminster, but as any honest Judge, prosecutor or defense attorney will tell you, this particular law can and does result in a disparity of interpretations by jurors, resulting in vastly different verdicts from one community to another or, in the case of Orange County, one courthouse to another.

So did the Alaskan "Hot Sauce Mom" commit a crime under California law? The answer is a clear "it depends." The better question is, would she have been convicted in Orange County? And the answer to that question is also a resounding "it depends." On what? Things like the culture and composition of the jury, if any permanent physical harm to the child was caused by the parent, what the child did to deserve being disciplined so harshly (i.e. whether the parent acted reasonably), and whether the hot sauce was just "hot" like Tabasco, "painful" like Sriracha, or "cruel and unusual punishment," like Ghost Pepper Sauce.

And, of course, a jury will always be less likely to convict in the presence of a good defense attorney, sensitive to the community, the tendencies of individual jurors, and possessing more than a working knowledge of the hot sauce carousel at Joe's Crab Shack.