June 22, 2007

SAN DIEGO PROSECUTORS ALLOWED INCOMPETENT LAB ANALYST TO TESTIFY FALSELY IN DUI CASES FOR YEARS

After much toil and trouble, I was finally able to get my hands on the sustained complaints from the San Diego Sheriff's Department on one of their crime lab people who has been testifying falsely in San Diego DUI cases for 12 years..

Sheriff's Legal Advisor, Sanford Toyen, attempted for months to block me from obtaining these records. After a threat of litigation, he finally came up with three very damning letters from prosecutors complaining about the ineptitude of San Diego Crime Lab Analyst Belen Hebreo.

The first letter, dated November 16, 1995, is authoried by Thomas Zeleny. Zeleny was then a deputy city attorney in the criminal trial division. What he says is damning. Apparently on November 8, 1995, Zeleny called Ms. Hebreo as an "expert" witness in a San Diego DUI case. The trial was before Judge Howard Shore. After the trial, Zeleny reports that Judge Shore told him Ms. Hebreo had "no business being on the witness stand." The judge questioned Ms. Hebreo's claim that she had been qualified as an expert witness 25 times before because she was, in his estimation, the "worst" lab witness he'd ever seen."

803100_lab_work.jpg

Zeleny goes on to talk about how Ms. Hebreo just made things up on the witness stand; i.e. she claimed that Horizontal Gaze Nystagmus is masked by tolerance. Then she switched up and reversed herself, saying it wasn't. Then she testified that if someone were physically impaired, it doesn't mean they are mentally impaired. After lots of prodding, Zeleny said she "gave the correct response."

Zeleny then began to give Hebreo a hypothetical, and she couldn't wait for him to finish before she began testifying that the defendant was under the influence. She kept cutting off the prosecutor before he was finished causing so much hysteria in the courtroom that, "I also noticed the jury could barely contain their laughter as juror's faces turned red trying not to make any noise and faces became tense trying not to smile."

Alright, on to the next complaint......

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June 21, 2007

PROSECUTORS CAN'T GET DEFENSE DISCOVERY FROM SUBPOENAS

DA NOT A PARTY TO 3RD PARTY DISCOVERY AND CAN'T GET WHAT THE DEFENSE GETS FROM AN SDT (Smith v. Superior Court; 2007 DJ DAR 9151; DJ, 6/21/07; C/A 4th)

In yet another of the many Appellate reversals of San Diego Superior Court Judge Peter Deddeh, the San Diego Fourth District Court of Appeal held - again - that prosecutors have no right to discovery subpoenaed by the defense.

In this case, the San Diego Public Defender issued a subpoena duces tecum for records of the jury commissioner for a jury draw challenge. The Court of Appeal held that the DA does not have the right to participate in the litigation on the discovery of the jury commissioner records.

This is third party discovery and the People aren't a party to such discovery. The Court of Appeal also says that the DA isn't entitled to copies of whatever the defense gets from the jury commissioner, unless the defense uses the information to make a motion. Then, and only then, the only appropriate discovery is limited by Penal Code section. They cite Teal (117 CA4th 488) and the recently amended PC 1326(c), which both say that information obtained by the defense from a subpoena can't be ordered disclosed to the DA except as required by 1054.

June 13, 2007

CAN EVIDENCE OF VOLUNTARY INTOXICATION BE USED TO FIND "IMPLIED MALICE?"

BARRING EVIDENCE OF VOLUNTARY INTOXICATION ON IMPLIED MALICE

In 1996 the United States Supreme Court Montana v. Egelhoff (518 U.S. 37). The
crucial 5th vote, Ginsburg, said that Montana redefined murder to make it a crime for a person to do the act with awareness, where that awareness would exist but for the intoxication, and that was OK.

The California First District Court of Appeal here claims that California has done the same by enacting California penal Code sec. 22, barring evidence of voluntary intoxication to negate the capacity to commit a crime. Penal Code sec. 22 also says voluntary intoxication is admissible on the issue of whether a defendant actually formed the intent required for the
crime.

This Court of Appeal says that voluntary intoxication is irrelevant to refute implied malice. This is just conceptually wrong. The mental state of conscious disregard for human life, which implied malice requires, is refuted by voluntary intoxication resulting in the failure
to have such conscious disregard.

People v. Timms; 2007 DJ DAR 8597; DJ, 6/13/07; C/A 1st

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June 4, 2007

PARIS IS BURNING-UNFAIR CELEBRITY TREATMENT

On Friday, Paris Hilton was taken from her home, handcuffed, placed into a marked Sheriff's cruiser and taken back to court. She was taken in this unprecedented way based on a order issued by a judge in LA Metro Court who didn't like that Sheriff Baca had released her from jail where she was serving time on a probation violation. Sheriff Baca had placed her on house arrest to serve out the remainder of her sentence.

The media whipped itself into a frenzy, and the majority of talking heads on national news shows fueled the flames of ignorant belief that this type of improper judicial actrion was appropriate. It's a travesty.

Hate Paris Hilton if you must. Hate her if you care. But hate her as you might, this woman got a raw deal. She got a raw deal because people hate her, because she sets a bad example, because she exhudes that she is "entitled" and truly believes that she is. But she is "entitled" by law to equal protection of law, and she was not treated equally in her case. Period.

First, her original plea is in question by those of us who practice DUI defense. Normally, .08 allegation DUI cases are settled for far less than what the City Attorney settled Paris's case for. Most .08 DUI cases in Los Angeles Metro court do not settle for "wet reckless", which is what Paris's original lawyer got for her. Most .08 DUI cases settle for a "dry reckless" or "exhibition of speed" both of which are non-alcohol related charges.

Second, there are questions in the DUI legal community whether or not Paris's "lawyer to the stars" actually properly counseled her of her probation requirements, which could have been a reason why she violated her probation. Had she had a lawyer who actively defended California DUI cases, the results might have been substantially different - and better for her.

Third, the judge who sentenced her to 45 days in jail was out of line. No one in her situation, having pleaded to a "wet reckless" and having violated probation, ever gets 45 straight days jail sentence with no opportunity for house arrest. No one. It was outrageous. But think about it. The sentencing judge was removed from a felony department because he was so awful, and sent to live out his remaining days before retirement where he couldn't do too much damage: in arraignment court. Why Paris's original attorneys did challenge him and get her into a courtroom with a decent judge is mindboggling.

Fourth, LA Sheriff Baca had every right to release her to house arrest. Once sentenced, it is solely in the purview of the Sheriff's Department to determine how someone is housed, where they are housed and how much time of that sentence they do. Again, it is standard operating procedure to "book and release" minor offenders so that they end up doing NO TIME. The Los Angeles Sheriff's Department is under a court order to reduce overcrowding and, before they start releasing burglars, sex offenders, and gang members early, they are going to release traffic offenders wqho are in on probation violations.

Fifth, the sentencing court issued an order that the Sheriff's Department go to Paris's home, handcuff her, and bring her into court in custody based on its anger toward the Sheriff. The defense did not have proper notice to prepare to answer to this, as is required by Due Process of Law. The defense attorney, Richard Hutton, requested a continuance of proceedings to prepare for this sudden hearing, and his very valid and reasonable request was denied. There is absolutely no question that a continuance was warranted. Paris was on house arrest. There was no emergency to have her cuffed and dragged into court with no notice. But the very valid request for continuance was denied because is was far more fun for this rogue judge to handcuff this woman, humiliate her and drag her into court in custody. Beating up Paris Hilton is fun, even for a judge. It's shameful.

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