A LAWYER FOR TODAY...
A COUNSELOR AT LAW FOR YEARS TO COME...
FLEISCHLI LAW.
Jack A. Fleischli was born and raised in Long Beach California. Jack graduated from Long Beach Wilson High School in June of 1967 with Honors and received his Bachelor of Arts Degree, With Honors, in Political Science from the University of California at Santa Barbara in June of 1971. Over the summers during his University education, Jack worked as a seasonal, ocean-beach lifeguard for the State of California, Department of Parks & Recreation at Huntington State Beach and Bolsa Chica State Beach. After college, Jack worked in the winter 1971-1972 as a Professional Ski Patrolman at the world class ski resort in Sun Valley, Idaho.
Jack received his Juris Doctor Degree, Cum Laude, from Pepperdine University, School of Law in May 1975. During his three years of law school, Jack and his two teammates represented Pepperdine in inter-school moot court competitions, including the 1975 National Moot Court Competition hosted in Los Angeles, California. For the summer between his second and third years in law school, Jack was selected as one of five law students from across the United States to law clerk in the prestigious Honors Law Student Program at the U.S. Attorney’s office, Criminal Division, for the Central District of California. Jack’s work with the U.S. Attorney’s Office was instrumental in convicting a defendant in the very first federal, felony prosecution for sound recording piracy.
In his senior year of law school, and in the summer following his taking of the Bar Exam in July 1975, Jack was employed as a law clerk and paralegal, respectively for Writs & Appeals for the Orange County Public Defender’s Office. Also during his senior year, Jack was the Moot Court Board Chairman and was solely responsible for writing the Pepperdine intra-school Moot Court Competition case problem (criminal defense issues) and the Judge's Bench Brief for each side of the “appeal.”
Jack was scholastically honored by being appointed as a Member of Pepperdine Law Review, and became published as the author of the Article, A Dangerous Commitment, 2 PEPP. L. REV., Iss. 1, concerning the due process implications of the law allowing imprisonment, based simply upon a finding of “dangerousness,” of young adults incarcerated at the California Youth Authority. A Dangerous Commitment was, in turn, cited by the California Court of Appeal in People v. Hernandez (1983) 148 Cal.App.3d 560 as part of the basis for establishing the importance of the right to counsel in a Welfare & Institutions Section 1800 proceeding for a civil commitment on the basis of a finding of "dangerousness." The Hernandez Court wrote:
Due process is not a concept to be taken lightly. It connotes the type of constitutionally mandated procedures that must be afforded an individual. "Its content is a function of many variables, including the nature of the right affected.... [Citations] The extent to which procedural due process must be afforded [an individual] is influenced by the extent to which he may be `condemned to suffer grievous loss,' [Citation], and depends upon whether the [individual's] interest in avoiding that loss outweighs the governmental interest in summary adjudication. [Citations] In effect, as the significance of the interest involved increases, so does the level of procedural protection required by due process. (See Randone v. Appellate Department, supra, 5 Cal.3d at p. 558 and accompanying citations.)
The Legislature has recognized the importance of the rights at stake in section 1800 proceedings. It expressly provided for "aid of counsel," the right "to compel attendance of witnesses and production of evidence" and a "full hearing." (§ 1801; see fn. 1, ante.) Although the initial finding does not terminate the proceedings, because the detainee has the right to a jury trial on the issue of dangerousness under section 1801.5, it is nonetheless a crucial and essential preliminary finding with enormous consequences to the individual whose liberty is at stake. There is no law in California, statutory or otherwise, that is truly comparable to sections 1800-1802. Those sections set in motion factual findings which can result in an individual's loss of liberty for life on facts unrelated to the commitment of any earlier criminal offense and absent any commission of an overt act manifesting dangerousness. After the significant preliminary judicial determination is made, the jury called upon to decide the single issue of whether the individual is physically dangerous to the public is given little, if any, objective criteria on which to base their response. (See Fleischli, A Dangerous Commitment (1974) 2 Pepperdine L.Rev. 116.) It must also be remembered that the section 1800 proceeding results in confinement, albeit for treatment, at either YA, the most restrictive of all facilities for youthful offenders and the same place where the offender had been unsuccessfully placed for rehabilitation or, where as here, the person is over 21, at other "appropriate" institutions selected by the director of corrections. (§ 1802.)
It is with these considerations in mind we examine Hernandez' due process challenge. Here, the section 1800 petition was filed 17 days before the hearing. Nothing contradicts Berend's statement she had only received the papers "within the week" nor is there anything contradicting her statement that given additional time she would have been able to retain an expert to examine Hernandez to assist in the preparation of his defense at the hearing. Lacking adequate preparation, Hernandez was denied the effective assistance of counsel at this crucial hearing.
Moreover, there is no justification for the delay. The assaultive conduct upon which the extended detention was based occurred between July 1981 and February 1982. Even with the enormous administrative burdens on YA, there is no reason for this unwarranted delay. We therefore hold the untimely filing denied Hernandez due process of law required by the statute. Because his term of commitment has since expired, we reverse with instructions to the trial court to order his release." (bold added for emphasis)
Following his Admission to the California Bar in December 1975, Jack was immediately hired as a Deputy Public Defender in the Orange County Public Defender’s Office. As a Deputy Public Defender over a period of some six years, Jack worked in Juvenile Court in the City of Orange, in the Municipal Courts in Westminster, Fullerton and Santa Ana, in Writs & Appeals for all districts of the County of Orange, and on the "Felony Panel" in Superior Court in Santa Ana, California. In 1977, Jack successfully appealed the denial of a Motion for Rehearing. The grounds of the appeal was that prior to denying the motion, the Superior Court had failed to review the transcript of argument of counsel at the "dispositional" hearing. In re Gregory M. (1977) 4th App. Div. 2.
Gregory asserts that his request for a rehearing pursuant to section 252 fn. 5 was erroneously denied because the transcript reviewed by the judge in ruling on the request did not include defense counsel's argument. In support of his position he cites In re Damon C., 16 Cal. 3d 493 [128 Cal. Rptr. 172, 546 P.2d 676], in which the defendant also claimed that the trial court, in ruling on his request for a rehearing, was insufficiently informed to reach an independent judgment. Damon had been found to be within the jurisdiction of the juvenile court for offenses unrelated to the proceedings then under consideration (§ 602). While on a one-day leave from the custody imposed pursuant to the earlier proceedings, he allegedly forced his way into a woman's car and ordered her to drive to a park where he raped her. A supplemental petition was filed in the juvenile court alleging that Damon had committed the additional offenses of kidnap and rape. He denied the allegations and a jurisdictional hearing followed before a referee. The referee found the allegations to be true and that Damon was subject to the jurisdiction of the court pursuant to section 602.
Damon's attorney filed a request for a rehearing but failed to state the reasons for the request as is required by section 252. Nevertheless, the judge ordered the preparation of the proceedings before the referee. All of the proceedings were transcribed with the exception of the arguments of counsel. The judge considered that part of the transcript which was available for his consideration, adopted the referee's findings and denied the request for a rehearing.
In discussing the issue of whether or not the trial judge had sufficient information before him to justify his adopting the referee's findings as [68 Cal. App. 3d 1092] his own, the Supreme Court determined that he did not. "'If the proceedings have been taken down by a reporter but the judge does not in fact read the transcripts and act on the application within the required period, the proceedings should be treated as a practical matter as if they had been unreported.' ([In re Edgar M., 14 Cal. 3d 727, 737 (122 Cal. Rptr. 574, 537 P.2d 406)]; italics in original.) Section 558 [now § 252] requires that when the proceedings are unreported an application for rehearing must be granted as a matter of right. As a portion of the reported proceedings had not been transcribed when the juvenile court denied the application for rehearing, such denial was error. [¶] The omitted transcript of the arguments of Damon's attorney are an integral part of Damon's right to be represented by counsel at a jurisdictional hearing. [Citations.] Final argument offers the minor's counsel '... an opportunity ... to reconcile the testimony with the juvenile's innocence of the charges and attempt to persuade the court to that view.' [Citation.]" (Id., at p. 497.)
Here the court reporter took down the entire jurisdictional hearing. However, as in In re Damon C., supra, counsel's closing arguments were not included in the transcript. We therefore find, as was found in Damon C., that section 252 has been violated.
The Attorney General attempts to distinguish Damon C. from the present matter by noting that Gregory's request for a rehearing was supported by a statement of reasons. Therefore, the trial judge was "advised as to the specific reasons on which a rehearing was sought." Thus, the argument continues, had a transcript of the argument been provided, it "would have contributed nothing at all to the judicial resolution of the particular reasons set forth by [Gregory] in his rehearing application." We are not persuaded by this logic.
The fact that here, unlike in Damon C., Gregory's attorney supported the request for rehearing with reasons is immaterial. Counsel's closing arguments oftentimes emphasize the facts of the case while a statement of reasons, more often than not, will be concerned with legal reasoning applied to the facts of the case. Moreover, the Damon C. court cited the omission of the reasons as making the availability of the entire transcript even "more important" (16 Cal.3d at p. 497; italics added); one cannot read into the court's declaration the new requirement that, on a petition for rehearing, either the transcript of closing arguments or a statement of reasons for the request will be accepted. Rather, the tenor of the Supreme Court's opinion was that the trial judge must have before him a transcript of the entire proceedings when considering a petition for [68 Cal. App. 3d 1093] rehearing in a juvenile matter: "[w]e are of the view that the proper procedure on application for rehearing pursuant to section 558 [now § 252] requires the preparation of transcripts of all proceedings had before the referee, including transcripts of counsel's arguments, except when waived by the applicant." (In re Damon C., supra, 16 Cal. 3d 493, 498; italics added.) Therefore, the question before us very simply becomes whether or not such a transcript was provided. Here, as in Damon C., it was not. Therefore, section 252, which requires the review of the entire transcript, was violated." (bold added for emphasis)
During his career as a Deputy Public Defender, in the cases actually brought to a verdict in jury trials, Jack was successful in gaining acquittals or reversals on appeal in fifty percent of his cases – a percentage almost unheard of in the history of criminal defense practice.
In private practice, beginning in 1981, Jack successfully transitioned to civil litigation and civil transactions law, although maintaining a presence in criminal defense law over the years. Jack’s civil practice has included forming business entities, negotiating commercial leases, forming shareholder and member agreements including buy/sell agreements, and business contract negotiation and drafting, as well as litigation including real estate, construction, product defect, medical malpractice, officers and directors liability, insurance coverage litigation, personal injury, employment law, trust disputes, fraud, consumer debt collection practices, landlord/tenant disputes, commercial lease litigation, family law, Conservatorship disputes, Domestic Violence restraining orders, breach of contract/debt collection, enforcement of Judgment, and other various State court litigation. Recently, Jack authored the article "Unsafe Speed to Reversible Error, published at
http://newportbar.org/legalarticles/unsafe-speed-to-reversible-error/
concerning the troublesome practice at Orange County Superior Court of allowing inadmissible radar/lidar evidence into evidence at certain traffic trials.