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Indybay and Layer42 Win $87,000 From Attorney Dionne Choyce
U.S. District Judge Jon Tigar: "Plaintiff's copyright claim was, to put it bluntly, objectively baseless."
SAN FRANCISCO (CN) - A Vallejo attorney must pay more than $87,000 after his defamation and copyright lawsuit against two websites was dismissed, a federal judge ruled.
Dionne Choyce sued San Francisco Bay Area Independent Media Center and its Internet service provider Layer42.net in 2012. Choyce claimed the Media Center posted defamatory comments about him on its aggregate news site, Indybay.org.
He also claimed the organization broke copyright laws by publishing one of his images without permission.
Specifically, Choyce said Indybay posted a page titled "Attorney Dionne Choyce, who embezzled from homeless, may serve prison time," and another one: "The Choyce Law Firm evicted from building."
Choyce claimed that Layer42.net shared responsibility with the Media Center for publishing false information.
U.S. District Judge Jon Tigar dismissed Choyce's claims with prejudice, citing the Media Center's right to free speech and calling Choyce's copyright claim "objectively baseless."
In a rather scorching paragraph, Tigar wrote: "Plaintiff's copyright claim was, to put it bluntly, objectively baseless. At the time plaintiff filed his complaint, plaintiff had not even applied for a copyright registration. The Court first dismissed the claim without prejudice, which should have given plaintiff an opportunity to assess the strength of his claims, and take whatever steps were necessary to ensure that he had a valid claim to assert. Instead, he filed a registration application which identified himself as the 'author' of the image, which he knew he was not. And then, when faced with the argument that he still had no valid ownership interest in any copyright, he resorted to additional meritless arguments: that his registration was prima facie valid (which it was not) and that the image was a work made for hire (which was implausible, unsupported by any evidence, and did nothing to salvage the validity of the registration he had actually obtained)." (Parentheses in ruling.)
The defendants filed a motion for attorneys' fees, the Media Center asking for $59,836.11 and Layer42 for $57,278.50.
Tigar granted the motion, but knocked 25 percent off each one.
He awarded the Media Center $44,877 and Layer42 $42,958.
[Reposted with permission.]
Dionne Choyce sued San Francisco Bay Area Independent Media Center and its Internet service provider Layer42.net in 2012. Choyce claimed the Media Center posted defamatory comments about him on its aggregate news site, Indybay.org.
He also claimed the organization broke copyright laws by publishing one of his images without permission.
Specifically, Choyce said Indybay posted a page titled "Attorney Dionne Choyce, who embezzled from homeless, may serve prison time," and another one: "The Choyce Law Firm evicted from building."
Choyce claimed that Layer42.net shared responsibility with the Media Center for publishing false information.
U.S. District Judge Jon Tigar dismissed Choyce's claims with prejudice, citing the Media Center's right to free speech and calling Choyce's copyright claim "objectively baseless."
In a rather scorching paragraph, Tigar wrote: "Plaintiff's copyright claim was, to put it bluntly, objectively baseless. At the time plaintiff filed his complaint, plaintiff had not even applied for a copyright registration. The Court first dismissed the claim without prejudice, which should have given plaintiff an opportunity to assess the strength of his claims, and take whatever steps were necessary to ensure that he had a valid claim to assert. Instead, he filed a registration application which identified himself as the 'author' of the image, which he knew he was not. And then, when faced with the argument that he still had no valid ownership interest in any copyright, he resorted to additional meritless arguments: that his registration was prima facie valid (which it was not) and that the image was a work made for hire (which was implausible, unsupported by any evidence, and did nothing to salvage the validity of the registration he had actually obtained)." (Parentheses in ruling.)
The defendants filed a motion for attorneys' fees, the Media Center asking for $59,836.11 and Layer42 for $57,278.50.
Tigar granted the motion, but knocked 25 percent off each one.
He awarded the Media Center $44,877 and Layer42 $42,958.
[Reposted with permission.]
For more information:
http://www.courthousenews.com/2014/11/05/w...
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This is excellent to see. Kick 'em again!
Authorities Trace Mercedes Car Parts to San Francisco Lawyer, Charge Him in Fatal Hit-and-Run
Posted May 18, 2012 09:57 pm CDT
By Martha Neil
A San Francisco lawyer is facing a felony case concerning a fatal hit-and-run accident near his San Ramon home in which a bicyclist was killed earlier this week.
Authorities said they traced car parts found at the scene of the accident to employment litigator Spencer Freeman Smith, 32. He was arrested Thursday on suspicion of felony hit-and-run and manslaughter, the San Francisco Chronicle reports.
“At the time of the accident, our officers responded and they collected three vehicle parts that were left at the scene,” Dublin Police Lt. Herb Walters told the San Ramon Express. “Each part has a serial number on it. They found that it belonged to a Mercedes.”
In fact, authorities were told, the parts belonged to a brand new black 2012 Mercedes-Benz CLS-550. Under a court order, a local dealership provided a list of recent purchasers, and police said they found one at Smith’s home, after obtaining a search warrant, with extensive damage matching the missing parts.
Attorney Dionne Choyce is representing Smith, who turned himself in when requested to do so by police. “This was a terrible accident,” she told the Chronicle, declining to discuss the facts of the case. Smith’s law partner in San Francisco, Dow Patten, declined to comment.
Posted May 18, 2012 09:57 pm CDT
By Martha Neil
A San Francisco lawyer is facing a felony case concerning a fatal hit-and-run accident near his San Ramon home in which a bicyclist was killed earlier this week.
Authorities said they traced car parts found at the scene of the accident to employment litigator Spencer Freeman Smith, 32. He was arrested Thursday on suspicion of felony hit-and-run and manslaughter, the San Francisco Chronicle reports.
“At the time of the accident, our officers responded and they collected three vehicle parts that were left at the scene,” Dublin Police Lt. Herb Walters told the San Ramon Express. “Each part has a serial number on it. They found that it belonged to a Mercedes.”
In fact, authorities were told, the parts belonged to a brand new black 2012 Mercedes-Benz CLS-550. Under a court order, a local dealership provided a list of recent purchasers, and police said they found one at Smith’s home, after obtaining a search warrant, with extensive damage matching the missing parts.
Attorney Dionne Choyce is representing Smith, who turned himself in when requested to do so by police. “This was a terrible accident,” she told the Chronicle, declining to discuss the facts of the case. Smith’s law partner in San Francisco, Dow Patten, declined to comment.
For more information:
http://www.abajournal.com/news/article/aut...
By Henry K. Lee Updated 2:36 pm, Saturday, March 21, 2015
On the day he was supposed to be sentenced, a San Francisco attorney withdrew his no-contest pleas in a Dublin hit-and-run crash that killed a bicyclist, after the judge recused himself in the case.
Judge Kevin Murphy of Alameda County Superior Court said Friday that he realized a “potential problem exists” if he were to sentence Spencer Smith because of “certain relationships” he has with people who wrote letters supporting Smith. Murphy, a former prosecutor, did not elaborate.
Defense attorney Dionne Choyce then asked to withdraw his client's no-contest pleas, noting that Smith has the right to be sentenced by the same judge that took the pleas.
Murphy agreed, while saying he recognized that everyone involved in the case had wanted closure. The latest turn of events, three years after the crash, was “no one’s fault” and the result of an “unusual situation,” he said.
Murphy said the case would now revert back to the pretrial state, with Smith's previous not-guilty pleas restored.
The case will come before a different judge on April 10, at which time Smith is not required to be present. He has the option to re-enter no-contest pleas or go to trial.
Smith, 35, of San Ramon, had pleaded no contest in November to felony hit and run and misdemeanor vehicular manslaughter in the death of bicyclist Bo Hu, 57, of China.
Authorities said Smith was behind the wheel of his brand-new Mercedes-Benz when he hit and killed Hu and fled the scene.
Hu was riding his bike north on Dougherty Road, a street with two lanes in each direction and no bike lane, near Willow Creek Drive, when he was hit from behind about 11:30 p.m. on May 15, 2012, police said. He died at the scene.
The driver continued north on Dougherty, toward San Ramon, without stopping. Video surveillance footage and cell phone records placed Smith at the scene of the crash and confirmed that he was driving, authorities said.
Smith was soon arrested after police found a damaged 2012 Mercedes CLS550 in his garage on Baker Way, 3 miles north of the crash site.
Smith’s car had extensive windshield and front-end damage and was missing parts left behind at the scene of the crash, police said.
Smith works as an employment litigator and has represented clients in cases involving whistle-blowers, wage disputes, sexual harassment, discrimination and wrongful termination, according to the website of his Financial District law firm, Smith Patten.
When contacted by police two days after the crash, Smith “spontaneously stated he was involved in an automobile accident,” police wrote in a court document outlining the grounds for his arrest.
On the day he was supposed to be sentenced, a San Francisco attorney withdrew his no-contest pleas in a Dublin hit-and-run crash that killed a bicyclist, after the judge recused himself in the case.
Judge Kevin Murphy of Alameda County Superior Court said Friday that he realized a “potential problem exists” if he were to sentence Spencer Smith because of “certain relationships” he has with people who wrote letters supporting Smith. Murphy, a former prosecutor, did not elaborate.
Defense attorney Dionne Choyce then asked to withdraw his client's no-contest pleas, noting that Smith has the right to be sentenced by the same judge that took the pleas.
Murphy agreed, while saying he recognized that everyone involved in the case had wanted closure. The latest turn of events, three years after the crash, was “no one’s fault” and the result of an “unusual situation,” he said.
Murphy said the case would now revert back to the pretrial state, with Smith's previous not-guilty pleas restored.
The case will come before a different judge on April 10, at which time Smith is not required to be present. He has the option to re-enter no-contest pleas or go to trial.
Smith, 35, of San Ramon, had pleaded no contest in November to felony hit and run and misdemeanor vehicular manslaughter in the death of bicyclist Bo Hu, 57, of China.
Authorities said Smith was behind the wheel of his brand-new Mercedes-Benz when he hit and killed Hu and fled the scene.
Hu was riding his bike north on Dougherty Road, a street with two lanes in each direction and no bike lane, near Willow Creek Drive, when he was hit from behind about 11:30 p.m. on May 15, 2012, police said. He died at the scene.
The driver continued north on Dougherty, toward San Ramon, without stopping. Video surveillance footage and cell phone records placed Smith at the scene of the crash and confirmed that he was driving, authorities said.
Smith was soon arrested after police found a damaged 2012 Mercedes CLS550 in his garage on Baker Way, 3 miles north of the crash site.
Smith’s car had extensive windshield and front-end damage and was missing parts left behind at the scene of the crash, police said.
Smith works as an employment litigator and has represented clients in cases involving whistle-blowers, wage disputes, sexual harassment, discrimination and wrongful termination, according to the website of his Financial District law firm, Smith Patten.
When contacted by police two days after the crash, Smith “spontaneously stated he was involved in an automobile accident,” police wrote in a court document outlining the grounds for his arrest.
For more information:
http://www.sfgate.com/bayarea/article/S-F-...
A San Francisco labor lawyer who ran over and killed a 57-year-old bicyclist in Dublin was sentenced Friday to 30 days in county jail after an Alameda judge reduced his felony hit-and-run case to a misdemeanor over the objections of prosecutors.
Alameda County Superior Court Judge Michael Gaffney also ordered Spencer Smith, 35, to wear an electronic monitoring ankle device for 11 months and abstain from alcohol before beginning his month-long jail sentence. He was also ordered to serve three year of probation.
Gaffney’s decision came a month after Smith pleaded no contest to felony hit-and-run resulting in injury and death, and misdemeanor vehicular manslaughter.
While prosecutors objected to the sentence, Gaffney exercised his discretion, based on his review of the evidence, to reduce all of Smith’s charges of misdemeanors.
“People are saying Mr. Smith got special treatment, but he didn’t. This case was a tragic accident,” said Smith’s attorney, Dionne Choyce.
Choyce said the evidence showed that bicyclist Bo Hu, a tourist from China, was struck while walking his bike in the middle of a dark road. He said Smith, who is blind in his right eye, thought he struck a large rock or deer.
“He didn’t know he hit a person,” said Choyce, adding that prosecutors presented no evidence that Smith was speeding or driving reckless. “This could have happened to anyone. No one would expect someone walking their bike in the middle of the street.”
Smith was scheduled to surrender to authorities to begin his jail sentence, but Gaffney allowed him to put it off until next year after he submitted a note from his wife’s doctor indicating she has pregnancy complications, Choyce said.
On May 15, 2012, Hu was walking his bike north on Dougherty Road in Dublin, near Willow Creek Drive, when he was hit by a car from behind about 11:30 p.m. and died at the scene.
The driver continued north without stopping. Video surveillance footage and cell phone records placed Smith at the scene of the crash and confirmed that he was driving, authorities said.
Smith, who is still licensed to practice law, was arrested a day after the accident when police found his damaged 2012 Mercedes CLS550 in his garage in San Ramon, 3 miles north of the crash site.
“He admitted early on that he never wanted to contest this or go to trial,” Choyce said of Smith.
Alameda County Superior Court Judge Michael Gaffney also ordered Spencer Smith, 35, to wear an electronic monitoring ankle device for 11 months and abstain from alcohol before beginning his month-long jail sentence. He was also ordered to serve three year of probation.
Gaffney’s decision came a month after Smith pleaded no contest to felony hit-and-run resulting in injury and death, and misdemeanor vehicular manslaughter.
While prosecutors objected to the sentence, Gaffney exercised his discretion, based on his review of the evidence, to reduce all of Smith’s charges of misdemeanors.
“People are saying Mr. Smith got special treatment, but he didn’t. This case was a tragic accident,” said Smith’s attorney, Dionne Choyce.
Choyce said the evidence showed that bicyclist Bo Hu, a tourist from China, was struck while walking his bike in the middle of a dark road. He said Smith, who is blind in his right eye, thought he struck a large rock or deer.
“He didn’t know he hit a person,” said Choyce, adding that prosecutors presented no evidence that Smith was speeding or driving reckless. “This could have happened to anyone. No one would expect someone walking their bike in the middle of the street.”
Smith was scheduled to surrender to authorities to begin his jail sentence, but Gaffney allowed him to put it off until next year after he submitted a note from his wife’s doctor indicating she has pregnancy complications, Choyce said.
On May 15, 2012, Hu was walking his bike north on Dougherty Road in Dublin, near Willow Creek Drive, when he was hit by a car from behind about 11:30 p.m. and died at the scene.
The driver continued north without stopping. Video surveillance footage and cell phone records placed Smith at the scene of the crash and confirmed that he was driving, authorities said.
Smith, who is still licensed to practice law, was arrested a day after the accident when police found his damaged 2012 Mercedes CLS550 in his garage in San Ramon, 3 miles north of the crash site.
“He admitted early on that he never wanted to contest this or go to trial,” Choyce said of Smith.
For more information:
http://www.sfgate.com/crime/article/S-F-at...
When Spencer Freeman Smith's black Mercedes-Benz CLS550 struck Bo Hu on Dougherty Road in Dublin, the Chinese tourist's head crashed through the windshield of the car's passenger compartment, according to police investigators.
Smith, a 36-year-old labor attorney, drove off and left Hu, who had either been walking or riding his bicycle, in the road in the darkness. Smith never called 911. Instead, he drove his badly damaged car -- which must have taken a herculean effort given the condition of the windshield -- more than a mile to his home in San Ramon. He parked it in the garage.
The most plausible explanation is the one offered by Alameda County prosecutors. They allege that Smith had been drinking with a co-worker from his San Francisco law firm before the crash on May 15, 2012, and that he fled the scene to avoid the possibility of more serious charges related to driving under the influence.
Police traced the Mercedes to Smith through numbered parts that had ripped off at the crash scene. But by the time they caught up with him two days later, they had no way of determining what his blood alcohol concentration might have been at the time of the accident.
Smith's defense is he has a prosthetic eye and does not see well. He told deputies that he thought he had hit "a deer or a rock or something."
Advertisement
I'm sorry, but when you hit a deer you know it. How do you not stop to see when your car is involved in what is clearly a major collision? Why would you not immediately notify your insurance company and take your prized Benz to be repaired?
What is just punishment in this case? It is definitely not the lenient sentence that Hayward Judge Michael Gaffey gave Smith.
Over "strenuous objections" from the Alameda County district attorney, the judge on Friday granted Smith's request to reduce his felony hit-and-run conviction to a misdemeanor and gave him an insignificant amount of jail time given the gravity of the offense.
Just two weeks earlier, the same judge had sentenced Smith to one year in jail and five years of felony probation. Smith was to serve 30 days in jail, effective immediately. He would then be eligible to apply for electronic monitoring for the remaining 11 months. The judge could have sentenced him to more than three years in prison. However, Gaffey said Smith had no criminal record and his prosthetic eye would have made it difficult for him to see Hu on a dark and shadowy road. Smith's attorney, Dionne Choyce, blamed Hu for being on the road in the dark and said anyone could have hit him. Right, it was Hu's fault Smith mowed him down.
But as bailiffs prepared to handcuff him, Smith pulled a rabbit out of his hat. He announced that his wife was going through a complicated pregnancy and that he was the only one who could take her to a critical medical appointment.
Gaffey gave him what was supposed to be a one-week reprieve.
But on Friday, acting on a request from Smith's lawyer, the judge reduced the felony to a misdemeanor. On top of that, he allowed Smith to serve his 30 days in jail at the end of his one-year sentence after considering a note from a doctor about Smith's wife's pregnancy.
Gaffey did not respond to a written request for comment.
The case took more than three years. Smith pleaded no contest to misdemeanor vehicular homicide and felony hit-and-run, and his sentencing had been scheduled for last March. However, Kevin Murphy, the judge overseeing the case back then, recused himself because he said he knew a number of the people who had written letters of support for Smith. The case was then reassigned to Gaffey.
Dr. Arnold Owens had befriended Hu, 57, a senior financial planner, during his visit to the Bay Area with his fiancee. He wonders how he'll explain what he considers a travesty to Hu's family in China.
"I've been telling them after three years, this is the American court system, not the Chinese one," Owens said. "That it's a fair system regardless of where you come from."
Ed Gor, national president of the Chinese American Citizens Alliance, emailed this newspaper to say he was outraged by the light sentence. "This thing just smells awful and gives everyone who's truly law-abiding a real reason to doubt the fairness and equity of our judicial system," Gor wrote.
There are times when the criminal justice system doesn't seem very just. I'd say this is one of them.
Smith, a 36-year-old labor attorney, drove off and left Hu, who had either been walking or riding his bicycle, in the road in the darkness. Smith never called 911. Instead, he drove his badly damaged car -- which must have taken a herculean effort given the condition of the windshield -- more than a mile to his home in San Ramon. He parked it in the garage.
The most plausible explanation is the one offered by Alameda County prosecutors. They allege that Smith had been drinking with a co-worker from his San Francisco law firm before the crash on May 15, 2012, and that he fled the scene to avoid the possibility of more serious charges related to driving under the influence.
Police traced the Mercedes to Smith through numbered parts that had ripped off at the crash scene. But by the time they caught up with him two days later, they had no way of determining what his blood alcohol concentration might have been at the time of the accident.
Smith's defense is he has a prosthetic eye and does not see well. He told deputies that he thought he had hit "a deer or a rock or something."
Advertisement
I'm sorry, but when you hit a deer you know it. How do you not stop to see when your car is involved in what is clearly a major collision? Why would you not immediately notify your insurance company and take your prized Benz to be repaired?
What is just punishment in this case? It is definitely not the lenient sentence that Hayward Judge Michael Gaffey gave Smith.
Over "strenuous objections" from the Alameda County district attorney, the judge on Friday granted Smith's request to reduce his felony hit-and-run conviction to a misdemeanor and gave him an insignificant amount of jail time given the gravity of the offense.
Just two weeks earlier, the same judge had sentenced Smith to one year in jail and five years of felony probation. Smith was to serve 30 days in jail, effective immediately. He would then be eligible to apply for electronic monitoring for the remaining 11 months. The judge could have sentenced him to more than three years in prison. However, Gaffey said Smith had no criminal record and his prosthetic eye would have made it difficult for him to see Hu on a dark and shadowy road. Smith's attorney, Dionne Choyce, blamed Hu for being on the road in the dark and said anyone could have hit him. Right, it was Hu's fault Smith mowed him down.
But as bailiffs prepared to handcuff him, Smith pulled a rabbit out of his hat. He announced that his wife was going through a complicated pregnancy and that he was the only one who could take her to a critical medical appointment.
Gaffey gave him what was supposed to be a one-week reprieve.
But on Friday, acting on a request from Smith's lawyer, the judge reduced the felony to a misdemeanor. On top of that, he allowed Smith to serve his 30 days in jail at the end of his one-year sentence after considering a note from a doctor about Smith's wife's pregnancy.
Gaffey did not respond to a written request for comment.
The case took more than three years. Smith pleaded no contest to misdemeanor vehicular homicide and felony hit-and-run, and his sentencing had been scheduled for last March. However, Kevin Murphy, the judge overseeing the case back then, recused himself because he said he knew a number of the people who had written letters of support for Smith. The case was then reassigned to Gaffey.
Dr. Arnold Owens had befriended Hu, 57, a senior financial planner, during his visit to the Bay Area with his fiancee. He wonders how he'll explain what he considers a travesty to Hu's family in China.
"I've been telling them after three years, this is the American court system, not the Chinese one," Owens said. "That it's a fair system regardless of where you come from."
Ed Gor, national president of the Chinese American Citizens Alliance, emailed this newspaper to say he was outraged by the light sentence. "This thing just smells awful and gives everyone who's truly law-abiding a real reason to doubt the fairness and equity of our judicial system," Gor wrote.
There are times when the criminal justice system doesn't seem very just. I'd say this is one of them.
For more information:
http://www.contracostatimes.com/breaking-n...
02/10/2016 04:45:27 PM PST
HAYWARD -- The San Ramon attorney convicted of killing a Chinese tourist in a hit-and-run crash in 2012 has been arrested again after missing a court appearance.
Spencer Freeman Smith, 36, was arrested Jan. 27 after failing to appear for a court hearing for a probation violation, according to the Alameda County District Attorney's Office and court documents. He tested positive for cocaine on Oct. 29, 2015, after a trip to Dubai, just days after he was sentenced.
In October, Superior Court Judge Michael Gaffey said Smith could serve his 30 days in jail following 11 months of electronic monitoring after Smith said his wife was having pregnancy complications.
Smith had been living in San Ramon and working as a San Francisco labor attorney on March 12, 2012, when, after a night of drinking with a paralegal from his firm, he struck 57-year-old Bo Hu on Dougherty Road in Dublin, according to the DA's Office. Hu was in the country for his fiancee's relative's graduation and was killed while he was walking a bicycle. Smith did not stop at the scene and was arrested by Dublin police after investigators matched broken car parts to his brand-new Mercedes-Benz sedan.
Smith first pleaded no contest in November 2014, but before sentencing Judge Kevin Murphy recused himself since he personally knew some of the people who wrote letters on Smith's behalf.
Smith pleaded no contest once again under Gaffey. Although the judge had the discretion to sentence him to up to three years in prison, Gaffey reduced the crime to a misdemeanor and Smith was sentenced to one year in county jail and five years' probation. Gaffey gave Smith a weeklong reprieve in September 2015 to surrender himself after he announced his pregnant wife was having complications.
But just days after his sentencing, Smith tested positive for cocaine. Smith's former attorney, Dione Choyce, argued at a hearing in December that the test needed to be redone because saliva samples produce unreliable results and "it was another substance that gave a false positive," referring to medication Smith takes.
"We know he didn't have cocaine in his system," Choyce said in December.
But in late January, Smith failed to appear for a hearing and a no-bail arrest warrant was issued, said deputy district attorney Matt Gathias.
On Monday, Smith admitted to the probation violation, Gathias said. Now his misdemeanor charge could return to being a felony. If the charges remain misdemeanors, he faces a maximum of two years in county jail, as opposed to four years for a felony.
Gaffey will decide Smith's sentence Thursday. Though never stated on the court's record, it's been known around the Hayward court that Smith's mother worked for the Alameda County Superior Court for decades.
Smith's new attorney, Rebecca Feigelson, declined to comment on the case.
HAYWARD -- The San Ramon attorney convicted of killing a Chinese tourist in a hit-and-run crash in 2012 has been arrested again after missing a court appearance.
Spencer Freeman Smith, 36, was arrested Jan. 27 after failing to appear for a court hearing for a probation violation, according to the Alameda County District Attorney's Office and court documents. He tested positive for cocaine on Oct. 29, 2015, after a trip to Dubai, just days after he was sentenced.
In October, Superior Court Judge Michael Gaffey said Smith could serve his 30 days in jail following 11 months of electronic monitoring after Smith said his wife was having pregnancy complications.
Smith had been living in San Ramon and working as a San Francisco labor attorney on March 12, 2012, when, after a night of drinking with a paralegal from his firm, he struck 57-year-old Bo Hu on Dougherty Road in Dublin, according to the DA's Office. Hu was in the country for his fiancee's relative's graduation and was killed while he was walking a bicycle. Smith did not stop at the scene and was arrested by Dublin police after investigators matched broken car parts to his brand-new Mercedes-Benz sedan.
Smith first pleaded no contest in November 2014, but before sentencing Judge Kevin Murphy recused himself since he personally knew some of the people who wrote letters on Smith's behalf.
Smith pleaded no contest once again under Gaffey. Although the judge had the discretion to sentence him to up to three years in prison, Gaffey reduced the crime to a misdemeanor and Smith was sentenced to one year in county jail and five years' probation. Gaffey gave Smith a weeklong reprieve in September 2015 to surrender himself after he announced his pregnant wife was having complications.
But just days after his sentencing, Smith tested positive for cocaine. Smith's former attorney, Dione Choyce, argued at a hearing in December that the test needed to be redone because saliva samples produce unreliable results and "it was another substance that gave a false positive," referring to medication Smith takes.
"We know he didn't have cocaine in his system," Choyce said in December.
But in late January, Smith failed to appear for a hearing and a no-bail arrest warrant was issued, said deputy district attorney Matt Gathias.
On Monday, Smith admitted to the probation violation, Gathias said. Now his misdemeanor charge could return to being a felony. If the charges remain misdemeanors, he faces a maximum of two years in county jail, as opposed to four years for a felony.
Gaffey will decide Smith's sentence Thursday. Though never stated on the court's record, it's been known around the Hayward court that Smith's mother worked for the Alameda County Superior Court for decades.
Smith's new attorney, Rebecca Feigelson, declined to comment on the case.
For more information:
http://www.eastbaytimes.com/breaking-news/...
Feb 29, 2016, 02:25 pm CST
A Bay Area attorney convicted of a hit-and-run that killed a bicyclist will not be permitted to move from jail to house arrest, the San Jose Mercury-News reported.
Spencer Freeman Smith, 36, was convicted last year in Alameda County Superior Court of killing Bo Hu, 57, a Chinese national visiting the United States with his fiancée. Smith, a labor attorney, had been out drinking with a female paralegal from his former firm.
Smith did not stop at the scene, but went home and put his car in the garage. The Contra Costa Times reported in October that police in Dublin, California traced broken auto parts found at the scene to Smith’s car, which was new at the time.
Smith pleaded no contest to charges of felony hit-and-run and misdemeanor vehicular manslaughter. At his sentencing, his attorney argued that Smith may not have been able to see Hu by the road because Smith lost his right eye to cancer as a child. He was ultimately sentenced to five years of felony probation and one year in jail.
Smith is currently serving the jail time in the Santa Rita Jail in Dublin. But last week, he asked a judge to modify the sentence to either home confinement or a jail in southern California. His family moved to Orange County after Smith began receiving death threats related to Hu’s death.
Judge Michael Gaffey denied both requests, saying Smith has already been given deference that the court has not given others. Smith began arguing that he was the family’s sole breadwinner, but the judge was unmoved.
“Did you not hear what I just said a minute ago?” the Mercury-News reported Gaffey saying. “I am not entertaining any further motions. That’s the end of the story today.”
Gaffey has been more sympathetic to Smith in the past, but that has created problems. In September, the judge gave Smith an extra week before turning himself in because Smith’s wife was pregnant and on bed rest. However, Smith and his wife then took a trip to Dubai, raising questions about whether he lied to the court. A hearing on that is scheduled for June.
In October, Gaffey reduced Smith’s felony conviction to a misdemeanor. Later that month, Smith tested positive for cocaine use, a probation violation, the Contra Costa Times reported. Smith was supposed to appear in court in January on that violation, but did not appear.
The Mercury-News reports that Hu’s family wrote letters to the court asking for a maximum punishment; his son wrote that it was upsetting to think that “an educated man could strike him down and leave like he has no importance in the world.”
According to the State Bar of California, Smith’s bar membership has been suspended due to the conviction.
The first judge in the case recused himself because he knew several of the people who’d written letters on Smith’s behalf. The Contra Costa Times notes that Smith’s mother worked at the Alameda County Superior Court for decades.
For more information:
http://www.abajournal.com/mobile/article/j...
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