Video – Attorney Kirk Tarman Explains Executive Pardons At The California State-Governor And Federal-President Levels And A Comparison To Resentencing Options For Defendants

Ray Hrdlicka – Host – Attorneys.Media

Hi, welcome to Attorneys.Media Legal Commentary. I’m your host Ray Hrdlicka, and today we’re speaking with Kirk Tarman, a criminal defense attorney in San Bernardino and Riverside County, Southern California. And we’re going to talk about something in the news today, and that’s pardons.

Now, everybody’s familiar with, obviously, because of the news, the presidential pardons. And a lot of people know that there can also be, down to the state level, the governor pardons. Governor can pardon state prisoners. So that’s what we want to talk about with Kirk here. Thank you for joining us. I appreciate it.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

No problem. Thank you, Ray.

Ray Hrdlicka – Host – Attorneys.Media

So, what is it? Some of the articles that are out there just claim it’s “willy nilly”, just you can do whatever you want if you’re the governor or you’re the president. One, I don’t know if that’s true. But number two, for somebody who maybe wants to get a pardon, because as a criminal defense attorney, you’ve represented them for years, I can’t remember, you can tell me how long you’ve been practicing law?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

1999

Ray Hrdlicka – Host – Attorneys.Media

1999. Okay, so 25 years. People look for pardons if there’s a possibility of it. So, let me ask this question, is it a facet in the criminal justice system that is commonly used and how is it used?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Generally, down at the state level, the pardons are done after the fact. Usually when individuals have already been sentenced, have done their time and a little bit of time has passed. A lot of the time you’ll find that people who have sex registration or something along the line of that… where it happened 20 to 30 years ago, they show a significant change in the behavior and their lifestyle and things like that… you do what are… you will eventually get to what’s called a pardon.

You have to jump through a couple of hoops beforehand, but it is after that, the pardon, which you are then… you are taken off the sex registration and you were able to vote… along those lines, all of the problems with being a convicted felon are basically removed from you, after the pardon has been granted in regards to your case.

Ray Hrdlicka – Host – Attorneys.Media

So basically, it sounds like you’re still doing the time. You’re just going to get some citizenship benefits back… some benefits back, you know in the world outside once you get out there.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

And that’s true. Because ultimately a governor doesn’t want to override or supersede the criminal justice system. It doesn’t want to put somebody on the street who’s doing time… who has gone through the system and override one of the governor’s basic employees. A prosecutor or override a jury’s decision in these circumstances. There may be situations where a governor can get involved at the get-go anytime within the process and then pardon them. But I haven’t seen that happen. I haven’t seen it, there haven’t been anything in my career where that has occurred.

Ray Hrdlicka – Host – Attorneys.Media

Well now you’re touching… now you’re touching, excuse me for interrupting, now you’re touching on something, the difference between, you know, state level pardons and, you know, federal pardons from the president because it sounds like one is not political and the other, you know, recent news articles and recent actions… is political.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

It definitely looks that way, but the optics of these pardons that have occurred and look like they will be occurring definitely feel politically motivated. Unlike the pardons that I’ve been involved in, where there’s definitely some criteria, the primary criteria being enough time for the person to have evolved beyond the person they were at the time that they were convicted. And that’s generally what we look for in pardons.

I think there have been some pardons at the state level when it’s been in regards to somebody who is being prosecuted for fairly minor charges. There was a time when if you had marijuana and you had two prior strikes, you could be sentenced to 25 years to life. A lot of it’s just some of these lower drug charges, nonviolent offenders who were sentenced to prolonged periods of time, pardons have been granted. But the criteria was pretty specific and pretty concrete.

It feels to me that these pardons at the upper echelons that have been going on are definitely people that have a relationship with the president and have some type of connection to the president beyond the mere charge itself. I don’t see anybody that is completely unknown to the presidents at any point that they have like a stranger who has been convicted of something where the president has involved himself in their criminal process. It’s always seems to be somebody who was doing it for the behest of the president. We’re looking at some of the January six guys.

Ray Hrdlicka – Host – Attorneys.Media

Right.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Then there or that there’s familiar connection… obviously President Biden’s son. And then you have individuals who knew each other through business relations or you have in the case of Nixon, you have them having been at the same job capacity as the president and things along those lines. I’m sure there’s some exceptions to it. I don’t know them.

I haven’t done a historical analysis, but I’ll bet you it’d be very interesting to see what… what the individuals are who were pardoned by the president and versus the people have been pardoned by a governor in a certain state. I’m sure it’s got some weird connective tissue at that… at the presidential level.

Ray Hrdlicka – Host – Attorneys.Media

So… my next question touches on actually another hot topic. It’s been going on lately so the only difference between pardons at the state level by the governor and resentencing is that the benefits… Well, let… actually that… let me ask this question… does resentencing, if a person gets resentenced… and like you said… the felony gets dropped, they can go back to vote, they can, you know, do get some benefits from the outside. Wouldn’t resentencing achieve that same thing?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

It’s interesting the presidential pardon is… doesn’t get rid of the conviction. While the governor’s pardon, at some level, does get rid of the conviction.

Ray Hrdlicka – Host – Attorneys.Media

Ah, okay.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

The presidential pardon, my understanding, this is a federal level analysis, the conviction stands and it is just a sentence has been commuted and again because the ones at the state level the sentence has already been served, per se, so the pardon doesn’t have any benefit to them. If it was just a commutation… commuting the sentence of putting it off because they’ve already done it. So, there is a difference there. I think there are… there are pardons down at the state level which do commute the sentence and that would be very analogous to a re-sentence.

Ray Hrdlicka – Host – Attorneys.Media

Right.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

But I think there are probably different… there are different flavors of these pardons and each of the flavor can have different legal repercussions.

Ray Hrdlicka – Host – Attorneys.Media

Well, it sounds like there’s a huge difference, of course, between federal and state level in this facet of the criminal justice system. Resentencing, is it as easy as people tend to think based upon the news items right now?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Well, there’s been a recent flurry of activity regarding certain sentences, certain types of charges. You mentioned it. The drugs have changed significantly. The drugs is one, but there’s actually the big re-sentencing formula that has changed in California is in regards to the murder charges.

Ray Hrdlicka – Host – Attorneys.Media

The felony murder rule.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

What’s that?

Ray Hrdlicka – Host – Attorneys.Media

The felony murder rule?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

There’s a felony murder rule but there’s been some other changes about when a person can be convicted of murder. It used to be very easy for the prosecution to say anybody who was involved in an activity where somebody died at the end of that activity and the person was involved, a lookout, a driver, somebody who was just along for the ride, et cetera, they could be charged with murder as co-conspirators, as aider and abettors.

But the legislation has recently changed it and made it a much more refined process where the person has to be a little bit more mentally aware of what was occurring and what the intent of all the players were before they could be charged with that murder. Now previously, that wasn’t in play.

So what’s happening is, anybody who’s doing these long sentences, convicted of a murder sometime back in the day,… gang affiliation, anything along those lines, they are now doing motions to re-sentence themselves, come back, getting re-sentenced, and the charges are either being adapted to the new legislation or dismissed in their entirety.

So that’s a lot of the re-sentencing that I’m seeing. Some of the stuff that is occurring, if we’re talking about the Menendez brothers, things along those lines, those are a little bit of a different resentencing.

It sounds to me like what’s happening in the Menendez brothers is because there was a second trial in the Menendez brothers, wherein a bulk of their evidence regarding the abuse that occurred to them while they were children, which is what precipitated the murder of their parents or the killing of their parents, was kept out of that second trial. The first trial hung when that evidence was admitted.

The second trial, which was right after the OJ trial, and there was a lot of political climate about these high-profile cases and people being released and being found not guilty. The judge in that case decided to exclude all of the information about the abuse that that had occurred beforehand, which in retrospect seems illogical against the concept of justice.

So I do think that because it’s been brought into the zeitgeist of the community now and people are aware of some of the in and outs of that case and the interest it’s taken now that we have a second look at this and we’re looking at it from a little bit of a 2020 vision and having some time to understand that there are a lot of males that are abused sexually and physically, and that it’s not just isolated to children, girls, that there, this acknowledgement of this abuse to young men should have been admitted.

And had it been admitted, really what should the appropriate charge have been, probably would have been voluntary manslaughter, heat of passion as a defense at the worst. Self-defense would have been a complete defense under the circumstances. That evidence had been allowed in, and the new basic understanding of how victims are impacted and who are victims of certain crimes because of the new contemporary understanding, that I think that this is what is going into play in regards to the possibility of resentencing from Menendez.

Ray Hrdlicka – Host – Attorneys.Media

Menendez brothers.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Now there’s been a change of regime in the Los Angeles District Attorney’s Office, and the new Los Angeles District Attorney is a little bit more hardcore, doesn’t have quite, I’m just going to call it the heart, maybe some people call it the weakness, but really the lack of the empathy in regards to defendants. The new regime is a little bit lacking on that empathy. A little bit more, if you commit a crime, you’re going to do the time, no matter what your socioeconomic position is, what your mental health is, et cetera. Things like this are not as important to them as I believe the previous regime felt was emphasizing some of these, the backgrounds of the individuals, et cetera.

Ray Hrdlicka – Host – Attorneys.Media

Well, let me ask this question. As a criminal defense attorney, again, if you were in that position and the judge representing the Menendez brothers. And the judge says, we’re not letting this evidence in. I’ve been involved with a few trials, both sides, you know, on the civil side, this plaintiff and defendant. And is there a recourse to be able to say, I want to appeal your ruling to get that in?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Oh, of course. I’m sure there were appeals that were filed. I haven’t looked into it specifically.

Ray Hrdlicka – Host – Attorneys.Media

There were, but I guess what I’m trying to ask is, at that moment, you’re in the middle of, you’re obviously preparing right at trial or you’re in trial and you’re trying to get this information in. And they say, no, what’s your, you know, what’s your action?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah, you can do what are called an interlocutory appeals or writs, a mandate or writs of prohibition. You can do those almost at any time in a proceeding. However, in a trial situation, these rulings, there’s broad discretion with the trial judge. And many times, they will not stay the proceedings for the purposes of you filing these interlocutory appeals or writs.

And you have to push forward because you have a jury who is perhaps… you’ve already gone through voir dire, you’ve finally gotten all your witnesses lined up, so a judge could still continue the criminal process, even if you do one of these called interlocutory appeals or these writs. So, a lot of the time, and I’ve experienced it, you just have to push forward, which is what the Menendez Brothers attorneys did under the circumstances.

Ray Hrdlicka – Host – Attorneys.Media

The wide discretion given to a trial judge on something like this that has such a huge effect… sometimes it just seems wrong to me… that you’re going to create and put a number of blocks up, you know, we’re talking about dominoes, you’re creating this long string that you didn’t have to if an appellate court was going to say, no, you need to let that information in.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah. And, you can see from the Menendez brothers, even under the circumstances, the appellate courts didn’t find that the judge’s ruling for an abuse of discretion or something that was appealable under the circumstances. Somebody found that there was enough merit in the circumstances, it was too attenuated or whatever, the thought process was of the judge in his analysis, they said that there was enough merit there that it was not going to override the…

Ray Hrdlicka – Host – Attorneys.Media

Right. So…So, you know, you got some bites at the apple afterwards, and then if that doesn’t work, well, in this particular case, now you got a bite at the apple, what, almost 30 years later or something, you know, for, for resentencing.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

So yeah. It’s pretty rare. And that’s one of the things that social media has shown that public pressure, a lot of pressure in some of these, these, these cases where justice has not been served and public pressure and analysis can come into play. It is pretty rare. You know, I mean, you look at these, the ones that we’ve seen on the, the TikTok and social medias and they finally get to Netflix along those lines, this is a minute percentage of the cases where if you get a bad judge, injustice is done.

Ray Hrdlicka – Host – Attorneys.Media

Right. But everybody else thinks that’s not quite commonplace, but it’s a lot greater than it is.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah. Judges are humans. They have their biases. They have their blind spots. Most of them are just doing the best they can under the circumstances. But there’s political pressures. They are basically voted in to their positions and can be voted out. There are some judges who have made tough decisions and they’ve been voted out.

So, there’s a lot of things that go into being a judge and some of them is not just this straight, icy cold, unbiased individual that’s making these decisions. They’ve got themselves to think about. They have to look at the optics of what their decisions are going to look like from the outside. They have to look at how the district attorney’s office feels about them because as attorneys we have an option to not be in front of a judge. Once, in any of our cases, and if the district attorney’s office decides to not be in front of a judge because they don’t like the decision or decisions that they make… that judge is now really going to get sidelined because that’s where all the cases are. The DA’s not going to go in front of that judge that guy’s going to go out to, in this case, he’s going to be assigned to Barstow. You know he’s going to be assigned somewhere far away for sometime.

So, there’s a lot of things that go into the decisions making and as a defense attorney we have to know that and we take into account when we make our decisions about what judges we are going to go in front of and not going to go in front of. But yeah look someday maybe we’ll have artificial intelligence who will just look at…

Ray Hrdlicka – Host – Attorneys.Media

Yeah but then it’s black and white and I’m not so sure I like that either.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

I’m not sure… I… you know… from a defense perspective, you got the facts,… you got the law. If you didn’t have somebody had to worry about getting voted out or if they were going to be disliked or harassed by the media… I don’t know. I’m not sure. I… I know we don’t want Skynet’s situation where we…

Ray Hrdlicka – Host – Attorneys.Media

Exactly.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Computers are ruling over the world. But sure would be nice to have a truly unbiased individual who wasn’t worried about certain repercussions who is just applying the law and the facts and that would be it. That would be I think… I would be very happy with that situation.

Ray Hrdlicka – Host – Attorneys.Media

Well, you know, obviously you’ve seen a lot of changes over your years of practice.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

I have, yeah. There used to be like the old-school attorneys… I mean the old-school judges. These guys were just… it was the law and they were hardcore and they didn’t give a crap what was going to happen to them. They… they’ve been around long enough, they were they knew the law well enough, they were strong enough personalities that they could just consider the repercussions as irrelevant. They would make the call as they saw it in the eyes of the law and the facts.

And it seems to be a lot rarer nowadays. There seems to be this fear that underwrites a lot of the judges’ perspectives. They don’t want to be going… doing… be seen as going soft on crime. They don’t want to piss off the public as being going soft on crime. So, they… there’s… there’s a lot of things that go into that which I don’t think should be going into it but it is something that we have to take into account when we’re playing this game.

Ray Hrdlicka – Host – Attorneys.Media

Yeah, you got to deal with what is, of course.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

You got to deal with what is.

Ray Hrdlicka – Host – Attorneys.Media

All right. Well listen, thank you very much for appearing on Legal Commentary for Attorneys.Media. We’ll talk to you again.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Thank you, Ray.

Ray Hrdlicka – Host – Attorneys.Media

Thanks. Bye-bye.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Take care.