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."
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......
Monica Tiana, a prosecutor who has a history of denying the existence of Brady material to the defense even when we have it, also wrote a letter of complaint to her then supervisor, Mike Smyth. According to Tiana, Hebreo didn't know that mental abilities are impaired before physical abilities. She testified that people at a .13 blood alcohol level cannot comprehend anything. At one point the jury became hysterical at her testimony and laughed out loud.
San Diego Superior Court Judge Arreola told Tiana that this "expert" was the worst "expert" he'd seen in 23 years, and told Tiana to call the Sheriff's Department about her to complain after the trial. Tiana ends her letter to her boss, Smyth, "All I can say at this point is that if I were to find out in the future that Ms. Hebreo was going to be my witness, I would definitely experience a feeling of doom."
Then there's City Attorney Chief Trial Lawyer Mike Smith's November 21, 1995 letter to the manager of the San Diego Sheriff's Department Crime Lab. He writes that her testimony in DUI cases is "poor", and "viewed with distain by jurors as well as by the trial judges." His ultimate conclusion is, "Unfortunately, she does not have the ability at this point to testify as an expert in alcohol related cases."
So, what happened after all this? Why, you may ask, am I writing about a bad San Diego Sheriff's Department crime lab analyst from 1995?
Hebreo continued to testify until RECENTLY. The crime lab ignored the complaints, and the prosecutors continued to put her on the witness stand and let her make things up so they could rack up their convictions. For more than ten years, the courts and prosecutors were complicit in allowing false testimony in court to convict people accused of DUI.
Whatever happened to Smyth, Tiana and Zeleny?
Smyth, who continued to authorize the use of Hebreo, is now a judge. He was not punished for letting Hebreo continue to testify.
Tiana got a promotion to the City Attorney's appellate division. She was never punished for putting on false testimony. And she never alerted any criminal defense attorney that their "expert" was incompetent.
Zeleny got a promotion to the city attorney's civil division. He was never punished for putting on false testimony.
Did any prosecutor ever tell any defense attorney that the expert witness they continued for the next ten years to use was incompetent and would make things up on the stand? Did Judges Arreola and Shore take any action by contacting the crime lab themselves? How about refusing to allow her to testify in their courtroom?
Not that I can find.
I have issued California Public Record Act requests to the crime lab with no results, and I've interveiwed several DUI attorneys who can't remember any judge declining to allow her to testify as an "expert." Each of these judges could have re-assessed their initial rulings that this person was an "expert." But they did not. They gave the prosecutor - each and every one of them - a pass. They let false testimony infect their courts like the plague.
So, you see folks, this is why San Diego is called "Enron by the Sea." Dirty prosecutors put on dirty evidence, judges do nothing, and the beat goes on. I call it "Nifong Nation."
But here's my epilogue: I was scheduled to try a case for the fiancee of a famous San Diego sports figure a few weeks after I got the Zeleny/Tiana/Smyth letters through the California Public Records Act. It was an important case, and a lot was riding on it. But, lo and behold, there was Hebreo's signature on the breath test calibrations record. Bingo. They were still letting her work on machines. So, I subpoenaed her along with her personnel record. I subpoenaed Judge Smyth, and city attorneys Zeleny and Tiana. Can you imagine their terror? Well, needless to say, we got the settlement that the client wanted.
That'll teach them. Sometimes what goes 'round, comes 'round.
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