DOJ attorney locks on to California’s coronavirus shelter-at-home orders, warns they may be illegal

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A Department of Justice attorney sent two letters to officials in California warning that elements of their stay-at-home orders may impede on constitutionally-protected freedoms as well as federal law.

The letters were penned by Eric S. Dreiband, an Assistant Attorney General working in the Justice Department’s Civil Rights Division. His latest communication with officials in California came on Friday when Dreiband sent a letter to Los Angeles Mayor Eric Garcetti.

In the letter, Dreiband warned that Garcetti’s comments over an extended coronavirus-related shelter-at-home order could be “unlawful,” noting that the mayor’s plan appeared to be “arbitrary.”

A letter sent by DOJ attorney Eric Dreiband to Los Angeles Mayor Eric Garcetti on Friday.

Dreiband’s letter, first reported by the Los Angeles Times, took aim at comments made by Barbara Ferrer, Los Angeles County’s top public health official, on a national morning news program. During the show, Ferrer said Los Angeles County would likely “never be completely open” until a vaccine or cure for the novel coronavirus COVID-19 was available.

Though Garcetti later clarified Ferrer’s comments, Dreiband said the Justice Department was “concerned about what may be an arbitrary and heavy-handed approach to continuing stay-at-home requirements.”

Garcetti has warned Los Angeles may remain partially closed for at least several months. As of Saturday, more than 2,000 deaths have been attributed to the-fast spreading novel coronavirus.

In March, businesses throughout California were closed following a statewide shelter-in-place order issued by Gov. Gavin Newsom. The governor’s plan followed several similar orders issued by a handful of California counties hit hardest by the virus.

Under the order, certain businesses deemed “essential” were allowed to remain open under modified conditions, including a requirement that these businesses employ social distancing practices. Grocery stores continued to operate, as did dine-in restaurants, though the latter was limited to delivery and pick-up orders.

Other non-essential businesses, including nail salons, barbershops and movie theaters were closed. Recreation areas including state parks and lakes were also closed.

For churches and other places of worship, the governor’s shelter-in-place order triggered a divergence from mass gatherings. While some churches offered services online by drive-through, others flaunted the governor’s order, with police intervening in some cases.

Other churches sued, saying the governor’s order infringed on their constitutional freedom to assemble and worship.

In mid-May, Newsom unveiled a four-step plan to reopen businesses and other operations throughout California. The state is currently allowing some counties to operate in the second phase of the plan, which re-opens dine-in restaurants and shopping malls who adopt more-rigorous “social distancing” guidelines.

But Phase 2 does not apply to churches, which continue to be closed throughout the state. Earlier this week, Dreiband sent a letter to Newsom and Xavier Becerra, the state’s attorney general, warning that the state’s categorization of churches as non-essential likely created an illegal double standard.

“Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government’s public health interest absent the most-compelling reasons,” Dreiband wrote.

Speaking to CBS13 News, civil litigator Mark Reichel said DOJ attorneys may have a case against state officials if they decide to pursue that issue in court.

“Until a federal judge says the churches have to open, the governor can still keep them close,” Mark said, adding that state officials aren’t required to respond to the letter until a lawsuit is brought.

Facebook groups have become the new neighborhood watch. They can also become a legal nightmare.

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For decades, certain signs affixed to stop signs and other traffic fixtures were installed with the intention of giving would-be criminals food for second thought.

The signs warned of a neighborhood watch, a type of grassroots organization where civilians band together to keep an eye out for graffiti, vandalism and petty crimes.

With roots dating back to the 1960s, neighborhood watch groups were embraced by law enforcement agencies as effective ways to deter crime and help solve cases. But in the era of social media, neighborhood watch groups no longer involve monthly meetings at the house down the street — now it’s as simple as logging on to Nextdoor or uploading Ring doorbell camera footage to a community Facebook group.

In some cases, these groups are hyperfocused on a single event. Such was the case earlier this year when two Facebook groups were launched following the disappearance of 11-year-old Roman Lopez from Placerville.

Roman was living with his biological father, step mother and seven other children when he disappeared from his home. His body was found the next day, and police labeled the death as “suspicious.”

But despite the FBI’s involvement in the case, no suspect has been identified, and police are still trying to figure out what happened.

Anxious residents in Placerville have turned to each other on Facebook to help piece together clues and solve the mystery of Roman’s death. One Facebook group quickly swelled to over 6,000 participants as word of the case spread across the country, CBS13 reported.

Kristin Jabs, an administrator of one of the groups, said she simply wanted to help after learning about Roman. She now speaks publicly on the family’s behalf, acting as a liaison between reporters and family members.

Jabs acknowledges people post their own theories about what happened, which can include pointing fingers at other people, something attorney Mark Reichel said could present certain legal liabilities.

Mark said a person can sue for slander if they are damaged or harmed by what another person posts in a Facebook neighborhood watch group, but he also says those type of slander cases can be difficult to prove.

“To prevail on it, you have to have some real evidence that there is some damage to your reputation,” Mark told CBS13.

It could also have implications on the outcome of criminal cases if police do identify and arrest a suspect, Mark warned, adding that certain information posted to social media could taint a jury pool.

But Mark acknowledges that social media can be a good source of information, including what everyday citizens and community members think happened in a case.

“You can get honest observations, and I have in cases, just like that actually,” Mark said.

Click here to read the full story from CBS13 News

After news stories of inconsistencies, law firm representing Tara Reade drops her as client

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An attorney who agreed to represent Tara Reade after she accused presidential candidate and sitting senator Joe Biden of sexual assault has dropped her as a client following numerous news stories describing inconsistencies in her education and employment background.

Douglas H. Wigdor, an attorney who represents clients engaged in various employment-related litigation, said on Friday his firm’s decision to part ways with Reade was not a reflection on whether Reade’s accusations against Biden were true or false.

The decision to part ways with Reade was made on May 20, Wigdor told CNN, one day after the news organization published a lengthy exposé that revealed contradictions in Reade’s education history. News of the firm’s decision to drop Reade as a client was first published Friday by the New York Times.

Wigdor had agreed to represent Reade after the woman came forward in March with an accusation against Biden stemming from her work as a staff employee in his senate office in the early 1990s. During a podcast interview, Reade claimed Biden sexually assaulted her.

Biden has denied the accusation.

Since March, political reporters have questioned Reade and Biden about the allegation, with one journalist uncovering a phone call made to CNN’s Larry King Live in August 1993 that appeared to corroborate some of Reade’s story.

But other information has surfaced that cast doubt on Reade’s credibility. On Tuesday, CNN published a report detailing the result of a lengthy investigation into Reade’s background and statements, including her assertion that she graduated with an Associate’s Degree from the Seattle campus of Antioch University.

Officials at Antioch University acknowledge Reade took some classes in the early 2000s but did not graduate from the school. Reade later said a legal name change required her to graduate from the school through a special program, but Antioch University officials said no such program existed.

That could prove problematic for dozens of criminal cases in Monterey County, California in which Reade testified as an expert witness. As part of her testimony, Reade — then known as Alexandra McCabe — offered details about her education and employment background; several times, she testified that she received a degree from Antioch University before graduating with a separate law degree from Seattle University.

In some cases, Reade also testified that she worked as a legislative assistant while employed by Biden’s office. But employment records obtained by the New York Times revealed Reade’s actual position was that of a staff assistant, not a legislative assistant. A legislative assistant is a more senior position compared to that of a staff assistant, the newspaper said.

On Wednesday, the Monterey County Weekly said defense attorneys were now combing through dozens of criminal convictions to see if those cases can be re-opened.

Those attorneys include county public defenders who are in the process of making a list of clients whose cases involved Reade’s testimony, the Times reported.

“An expert can only testify in certain circumstances,” Sacramento criminal defense attorney Mark Reichel told the newspaper. “One of them is that they have expertise above the regular person. The jury is entitled to hear your qualifications.”

Tara Reade testified as an expert witness in criminal cases. Defense attorneys now want those cases re-opened.

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Defense attorneys representing clients who were convicted in criminal cases are moving to have those cases re-examined and convictions possibly thrown out due to one key element in each case: Tara Reade.

Reade, who also goes by the alias Alexandra McCabe, testified as an expert witness in several California criminal cases over the past decade, offering her experience as a survivor of spousal abuse.

Reade made international headlines in March after she accused presidential candidate and current senator Joe Biden of sexual assault. She repeated the allegation a few weeks later in an interview published by the New York Times. In both interviews, Reade claimed the assault happened while she was working as a campaign staffer at Biden’s Capitol Hill office in the early 1990s. (Biden, who is in the middle of a presidential campaign, denied Reade’s allegation earlier this month.)

As reporters worked through the details of Reade’s allegation, some journalists began fact-checking her time at Biden’s office. Reporters with the PBS NewsHour spoke with more than six dozen people who once worked for Sen. Biden. While some staff members admitted Biden was a “toucher” who sometimes made them feel uncomfortable, no one interviewed by the news organization said Biden had sexually harassed or assaulted them, and all of the former staffers were adamant they had not heard rumors about Biden harassing or abusing others until Reade went pubic with her accusation.

Some reporters dove deeper into Reade’s background, examining her education and work history. One reporter for CNN contacted Ohio-based Antioch University to ask about Reade’s academic record. Though Reade claimed to have received a degree from Antioch University’s Seattle campus, officials with the school said they had no record of her graduating or receiving a degree.

When questioned about her degree status, Reade told reporters she graduated under a special arrangement with Antioch University’s chancellor following a legal name change. An unofficial transcript from Seattle University, where Reade received a separate degree, listed Antioch University as a prior degree-granting institution, according to one report.

But a university official told POLITICO no such arrangement existed. The spokesperson later told the New York Times that they were absolutely certain Reade had not graduated from their school.

That could prove problematic after Reade said, under oath, that she received a degree from Antioch University while testifying as an expert witness in dozens of cases brought in Monterey County, California. Defense attorneys there are now combing through cases connected to Reade’s testimony to see if they can be re-opened based upon these new media revelations.

In one case, Reade not only swore under oath that she received a degree from Antioch University but also claimed to be currently working as a substitute teacher. Employment records obtained by the Times showed she was actually working as a staff assistant.

During the trial, defense attorney Roland Soltesz objected, saying Reade’s work experience didn’t qualify her as an expert witness. The judge overruled the objection. Soltesz’s client was sentenced to several life terms after being convicted of attempted murder, armed robbery and arson, the Times said.

Now Soltesz is seeking to have that case, and possibly others, re-examined.

“People have been convicted based upon this, and that’s wrong,” Soltesz told the newspaper.

While making a false statement during sworn testimony in court is a crime, prosecutors must prove that the person who made the false statement did so with knowledge and intent to deceive. Those elements can be difficult to prove, legal experts say.

But defense attorneys could have an easier time pursuing a reversal of a verdict if they can show that Reade exaggerated her education and employment history — qualifications that once earned her a spot in the witness stand.

“An expert can only testify in certain circumstances,” Sacramento criminal defense attorney Mark Reichel told the New York Times. “One of them is that they have expertise above the regular person. The jury is entitled to hear your qualifications.”

Inauthentic qualifications by an expert witness not only undermines the criminal justice system, it opens the door for a conviction to be overturned. If that happens, some cases may be remanded for a new trial, while other defendants could be set free.

In an interview with the Times, Berkley Brannon, the chief deputy assistant district attorney for Monterey County, said his office would work to contact district attorneys about cases in which Reade testified if it could be proven that she did not earn a degree as she claimed under oath.

“That would absolutely be of concern to us, and it’s something that the defense attorneys would need to know about,” Brannon said. “We don’t want people that we call lying about anything.”

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READ MORE

The New York Times:
“As Tara Reade’s Expert Witness Credentials Are Questioned, So Are Verdicts”

The Monterey County Weekly:
“Convictions Could Be Challenged as Defense Attorneys Question Tara Reade’s Credentials”

POLITICO:
“Defense Lawyers Look to Reopen Cases Where Tara Reade Testified as an Expert”

DOJ tells Gov. Newsom phased reopening of churches may violate constitution

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Click/tap to read the letter sent by the Department of Justice to Gov. Gavin Newsom.

The U.S. Department of Justice has informed California Gov. Gavin Newsom that his state’s COVID-19 phased recovery plan may violated constitutional protections because it groups churches and other places of worship in a later phase compared to sit-down restaurants, shopping malls and other businesses.

In the letter, a copy of which is available here, DOJ attorneys acknowledged Newsom’s need to protect the health, safety and welfare of California residents, but said the “California Reopening Plan” may infringe on certain religious freedoms.

The letter paraphrases an earlier statement issued by U.S. Attorney General William Barr in which he wrote that “government may not impose special restrictions on religious activity that do not also apply to similar non-religious activity.”

“Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government’s public health interest absent the most-compelling reasons,” the DOJ’s letter said.

The letter, dated May 19, was signed by Eric Dreiband, the Assistant Attorney General of the Civil Rights Decision. U.S. Attorneys representing each of the four federal districts in California were listed as co-signers. The letter was sent to Newsom via California Attorney General Xavier Becerra on Tuesday.

California has put in place a four-phase system for reopening certain public businesses and other institutions following a state-wide shutdown in mid-March due to the coronavirus pandemic. State officials have given nearly three dozen counties the green light to enter “Phase 2” of the plan, which allows for sit-down restaurants and some retailers to re-open, assuming those businesses adhere to “social distancing” practices.

Barbershops, nail salons and gyms are grouped into “Phase 3” of the plan, as are churches and other places of worship. No county has applied to enter that phase of re-opening as of Wednesday evening.

Reaction to the governor’s plan has been mixed, with some churchgoers telling local news outlets they intend to continue worshipping from a distance.

But others have complained about Newsom’s plan since it was enacted. Several lawsuits have been filed in federal court seeking to overturn the closure, while other lawsuits have asked to reclassify places of worship as “essential services,” a tier of organizations that has been given priority for reopening.

Speaking to CBS13 News, civil litigator Mark Reichel said DOJ attorneys may have a case against state officials if they decide to pursue the issue in court.

“Until a federal judge says the churches have to open, the governor can still keep them close,” Mark said, adding that state officials aren’t required to respond to the letter until a lawsuit is brought.

Click here to read the full story from CBS13 News

Why COVID-19 could earn some criminal defendants their freedom

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The months-long global coronavirus pandemic has halted the normal course of life for millions of people in the United States and around the world. As states grapple with decisions on how to reopen local economies, state and federal courthouses in California are modifying their operating procedures to keep the wheels of justice moving.

Inside the Sacramento County Superior Courtroom, judges, attorneys and defendants are meeting regularly for hearings via Zoom, a teleconferencing app, in lieu of in-person court hearings. Each day, criminal defendants appear in one courtroom to have their cases heard by a judge who is often sitting in another room. Attorneys for both sides are in their own rooms, with all parties appearing via the Internet.

Right now, court proceedings are largely limited to arraignments and bench trials heard before a judge. But that’s a problem for potentially hundreds of criminal defendants who have demanded a trial by jury, something that is their constitutional right.

With no judges currently seating juries for the foreseeable future, it’s quite possible that some criminal defendants could be set free in the coming weeks.

“Individuals in jail are going to say, I’m not agreeing to this time exclusion, I want my day in court,” Mark Reichel told CBS13 News. “The courts are going to say, we can’t bring a jury in here, and [the courts are] going to entertain motions to dismiss the case.”

A local district attorney acknowledged to CBS13 that if juries can’t be seated in a timely manner, some criminal defendants would most likely be set free.

Click here to read the full story on CBS13’s website

Is Gov. Newsom violating constitutional rights with coronavirus stay-at-home orders?

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California Governor Gavin Newsom’s decision to order the closure of several state beaches during the ongoing coronavirus pandemic has drawn scrutiny and criticism from some members of the public who say the governor is exceeding his power by overriding local authorities.

The criticism reached a peak when Newsom’s order closed several Orange County beaches earlier this month after local officials declared them open.

A Republican state official has filed several lawsuits against the governor in response to his stay-at-home directives, saying Newsom is abridging the constitutional rights of the public.

But attorney Mark Reichel says while the U.S. Supreme Court has held that American rights and freedoms are extensive, “your freedoms cannot cause harm to others.”

In this case, Reichel says the California Department of Justice intends to argue in court that Newsom’s directives is designed to prevent more public harm as the virus known as COVID-19 continues to proliferate throughout the state.

“It’s going to be very difficult for someone to sue and to prevail and say that ‘my constitutional rights are being violated,'” Reichel told FOX40 News.

As a state, California has seen some of the worst of the outbreak, but when observed at a county-by-county level, Reichel says some smaller counties that have not seen as much contagion may have a good case for reopening certain businesses on a case-by-case basis.

“They’re probably are in a decent position to make that argument,” Reichel said.

Click here to watch Mark’s appearance on FOX40 News.