March 31, 2008

SAN DIEGO DUI DEFENSE: TRIAL COURT SHOULD NOT HAVE ADMITTED EVIDENCE IN DUI RE-TRIAL

in a well-reasoned, but unexpected move by the California Fourth District Court of APpeal, DIvision One, the Court reversed a DUI conviction because the trial court let in "evidence" that it should not have.

In a DUI case where the jury in the first trial acquitted defendant for a "per se DUI" (driving with BAC of .08 or more) offense but could not reach a verdict regarding defendant's generic DUI offense, conviction for generic DUI in a second jury trial is reversed where collateral estoppel principles were violated in: 1) permitting the second jury to consider the issue of whether defendant drove with a BAC of .08 or more; and 2) instructing the jury that a BAC of .08 or more creates a permissive presumption of a "generic DUI" offense when the jury should have been instructed to presume defendant's BAC level was less than .08

People v. Smith, No. D049993

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March 30, 2008

SHAKEN BABY SYDROME DEBUNKED BY US RESEARCHERS

Shaken Baby Syndrome - A Flawed Theory?

New medical evidence highlighted in a BBC television programme could clear childminder Keran Henderson, who is serving a three-year prison sentence after being convicted of shaking an 11-month-old girl to death.

A mother-of-two and a former Scout leader, Keran, 43, has always insisted she did not harm Maeve Sheppard.

But the jury at her trial last November heard a succession of expert witnesses swear that Maeve suffered injuries to her brain and bleeding in the eyes indicating shaken baby syndrome.

There is already deep disquiet about the case. Two jurors said they believe there was a miscarriage of justice.

A prosecution witness also expressed doubts and Keran's husband Iain, a former policeman of Iver Heath, in Buckinghamshire, wrote in The Mail on Sunday last month that the conviction relied solely on the conflicting views of paid "experts".

But a BBC investigation revealed new research that suggests the science behind shaken baby syndrome is flawed and that the 15-20 convictions every year in the U.K. involving the diagnosis may be unsafe.

The prevailing-wisdom is that the syndrome is proved by a "triad" of symptoms including brain swelling and bleeding to the retina and the surface of the brain.

But BBC reporter John Sweeney has spoken to experts in the U.S. whose new research could demolish the basis for the diagnosis.

Dr Chris Van Ee, professor of biomechanics at Wayne State University in Detroit, claims tests with crash dummies and corpses show that falling off a sofa does far more damage than shaking.

He showed the BBC a test in which a dummy representing a one-year-old child generated a force of 109 times the acceleration due to gravity when dropped from a sofa on to its head.

When Sweeney shook a dummy the force was only 7G, less than a pillow fight.

Dr Van Ee said: "10Gs is a rocket launch, and here we have 110Gs for a fall off the sofa. That could be a fatal impact.

"Shaken baby syndrome is fundamentally flawed from a biomechanics perspective."

Meanwhile, North Carolina pathologist Dr Pat Lantz found retinal bleeding in the eyes of one in six corpses he studied.

This suggests that bleeds in the eye are more common than thought and therefore can't be proof of shaken baby syndrome.

Some medics suggest retinal bleeding can be due to attempts to resuscitate. Keran tried to give Maeve mouth-to-mouth.

The scientific doubts will be the basis for an appeal against Keran's conviction - and potentially for dozens more appeals.

But the challenge will be fiercely resisted by Maeve's heartbroken parents Mark and Ruth, who have two surviving children.

Mr Sheppard said: "We got what we thought was a fair verdict. We have a little girl who points up to our photographs and says "Who's that?" and we tell her it's Maeve.

"In 18 months, Keran Henderson will go home to a loving husband and two loving children - I will never have Maeve back."


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March 28, 2008

CALIFORNIA SENTENCING LAW NEWS: PROBATIONER DOES NOT GET CUSTODY CREDITS ON NEW CHARGED UNTIL PROBATION IS FORMALLY REVOKED

Where a probationer is arrested and jailed for conduct that ultimately led to a revocation of probation, he/she is not entitled to pre-sentence custody credit pursuant to Penal Code section 2900.5(b) for the time spent in jail on the new criminal charges after the arrest but prior to the summary revocation of probation.

People v. Huff, 223 Cal.App.3d 1100 (1990), resolved this issue properly and continues to be good law

People v. Pruitt, No. B198408

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March 27, 2008

CALIFORNIA CIVIL RIGHTS NEWS: CALIFORNIA FEDERAL COURT SETS STANDARDS FOR STRIP SEARCHES IN THE FIELD

The United States District Court for the Northern District of California has set the standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning.

An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop.

Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

stripsearches.jpg

It is clear that the "full search" authorized by Robinson is ordinarily conducted for the officers' safety. A "full search" incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security.

Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant.

In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field--strip search, visual body cavity search and physical body cavity search--are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.


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March 26, 2008

NINTH CIRCUIT DECLINES TO ADOPT "REASONABLENESS" STANDARD FOR GUIDELINES SENTENCES

In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough.

Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no. 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption.

The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose.

The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. The standard is abuse of discretion as to reasonableness.

The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable.

Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.

U.S. v. Carty , No. 05-10200 (3-24-08) (en banc).

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March 26, 2008

In People v. Alvarez (27 Cal 4th 1161), the California Supreme Court told us that 20 years ago Prop. 8 repealed the aspect of the corpus delicti rule that evidence
of a confession is inadmissible unless there was evidence of a corpus of
the offense.

However, a confession without a corpus is still insufficient to convict.

Here, the only evidence that the defendant transported drugs for sale from one county to another noncontiguous county was the defendant's statement.

The majority says that this is just an enhancement section, so the corpus rule is inapplicable.

The dissent says that the corpus rule does apply here, but that the corpus rule only requires evidence that any crime was committed and there was evidence here of transportation for sale.

People v. Miranda; 2008 DJ DAR 4077; DJ, 3/26/08; C/A 3rd

March 21, 2008

CALIFORNIA DEATH PENALTY REVERSED FOR RIGHT TO USE "LINGERING DOUBT" EVIDENCE

LINGERING DOUBT AND EVIDENCE THAT THE DEFENDANT WAS NOT THE SHOOTER

The California Supreme Court previously reversed this death case solely on penalty.

At the retrial, the trial judge took the position that since the jury had found the defendant guilty and found a personal use of a firearm true, the jury had found that the defendant must have been the shooter. The retrial judge thus barred any evidence that the defendant wasn't the shooter, even though the defense had lots of evidence that the former co-defendant was
the actual shooter.

The California Supreme Court reversed. They restate the principle of lingering doubt and hold that the defense has the right to present evidence casting doubt on the defendant's role. There is a concurring opinion saying that a case to the contrary has been effectively overruled.

People v. Gay; 2008 DJ DAR 3805; DJ, 3/21/08; Cal. Supremes

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March 21, 2008

POSSIBLE CHARGES TO BE FILED AGAINST SAN DIEGO ROAD RAGE COP

Detectives probing why an off-duty patrolman opened fire on another motorist in Oceanside, wounding her and her 8-year-old son, will discuss possible criminal charges in the case with the District Attorney's Office, a police spokesman said. Click here for original story.

[Know that this is most likely an exercise in futility. District Attorney Bonie Dumanis has never seen an office involved shooting she thought was unjustified - ever]

San Diego police Officer Franklin White has not been arrested in connection with last weekend's shooting in a parking lot on Old Grove Road, but has been placed on paid leave pending the outcome of investigations into his actions.

The wounded mother and child, whose names have not been released, remain hospitalized.

White, 28, opened fire about 9:15 p.m. during a traffic dispute with the woman, a Marine's wife in her 20s who lives on the Camp Pendleton base, according to investigators.

One of the two drivers apparently cut the other off, resulting in a "road-rage incident," Poorman said earlier this week.

White, who was with his wife in a black Mercury sedan, and the woman, driving a silver four-door Honda, both pulled into a parking area in front of a Lowe's home-improvement store.

"Then there was some type of either verbal or physical altercation that ... led to the gunfire," the sergeant said.

Medics airlifted the wounded woman to Sharp Memorial Hospital and flew her son to Rady Children's Hospital. Details on their injuries were not released, but they were said to be non-life-threatening.

Police interviewed White, an Oceanside resident, that night, then released him pending further investigation.

White, a patrolman with the SDPD's Southeastern Division, has been with the department since October 2005.

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March 20, 2008

GOOD JURY SELECTION CASE FROM THE SUPREMES

There are many aspects of this death penalty reversal from the U.S. Supremes worthy of note. The dissenters were only Scalia and Thomas, meaning that Alito and Roberts voted to reverse; Alito was the actual author.

This is a Batson (476 US 79) case. Batson (the California equivalent
is Wheeler, 22 C3d 258) says that the DA can't use peremptory challenges
to discriminate against members of cognizable groups such as
African-Americans.

The U.S. Supremes apply a three-step process on Batson issues. First, the trial court must decide whether you've made a showing that a peremptory was used based on membership in a cognizable group. Second, the DA has to present a race-neutral
explanation. Third, the court must then determine whether you've carried
your burden of showing purposeful discrimination.

Tthe best part of this case is the statement by Alito that your Batson motion must be granted if you show that one juror was improperly excused: "The Constitution forbids striking even a single prospective juror for a discriminatory purpose."

The Supremes then reject the bogus excuses given by the DA in this case. The DA claimed that the African-American juror (one of five on the panel, all kicked off by the DA) was "nervous
to the DA."

The Supremes say that the record doesn't reflect that the judge made a factual finding that the juror was nervous, so they don't have to defer to a factual finding by the trial court. T

The second reason given by the DA was that the juror was a student teacher who would miss work, and so might rush to deliver a verdict of a lesser to avoid a penalty phase and get back to work. But the record shows that they talked to the juror's supervisor, and making up the time wasn't a problem. More importantly, the DA didn't kick off white jurors with
much more serious time constraints.

Snyder v. Louisiana; 2008 DJ DAR 3757; DJ, 3/20/08; US Supremes

March 19, 2008

SAN DIEGO POLICE OFFICER SHOOTS MOTHER AND CHILD IN ROAD RAGE INCIDENT

SAN DIEGO -- A San Diego police officer was under investigation Monday in connection with an off-duty shooting that wounded a woman and her 8-year-old son in Oceanside, officials said.

Franklin White, an SDPD patrolman since autumn 2005, was placed on administrative leave following Saturday night's shooting, which may have stemmed from a road-rage incident, according to Oceanside police.

White, 28, was not arrested, SDPD Chief William Lansdowne said. Nice double standard, eh?

"It's Oceanside's case, and they're going to handle the criminal side of it," he said. "We'll handle any (personnel) issues." Meanwhile the cop get to walk free while the victims get to go to the hospital. Nice.

The shooting apparently resulted from an escalating dispute that erupted about 9:15 p.m. between White and another motorist near a home-improvement store in the 100 block of Old Grove Road, authorities reported.

"One of the parties violated the right-of-way of the other party, and that (resulted in) the road-rage incident, which led it into the (Lowe's) parking lot," said Oceanside police Sgt. Kelan Poorman. "Then there was some type of either verbal or physical altercation that ... led to the gunfire." The party of the first part, bothered the party of the second part.......what?

Medics airlifted the wounded woman to Sharp Memorial Hospital and took her son to Rady Children's Hospital. Their wounds were not considered life-threatening, Poorman said.

White works out of the SDPD's Southeastern Division, said Detective Gary Hassen, a spokesman for the department.

Now, let's see how long it takes for Deputy District Attorney Bonnie Dumanis to reject charging this officer. She's never seen an officer involved shooting she couldn't find an excuse for.

March 19, 2008

PROSECUTORS ON TRIAL - IT'S ABOUT TIME

A Burst of Prosecutors on Trial

Prosecutors are normally the predators of the legal world, stalking and taking down the bad guys who break the rules of society.

But in an unusual twist, three Northern California prosecutors are now the prey — of State Bar prosecutors who want them punished for allegedly abusing their authority or violating the very rules of law they were sworn to uphold.

Santa Clara County Deputy District Attorney Benjamin Field, Santa Cruz County Deputy DA George Dunlap Jr., and retired Sacramento County Deputy DA Christopher Cleland face trial in the State Bar Court within the next couple of months. A fourth, former Sonoma County Deputy DA Brooke Halsey Jr., was suspended in January.

Field is accused, in part, of concealing evidence, misleading a judge, and ignoring a judicial order; Dunlap of improperly intervening in a case involving his then-girlfriend and lying to authorities; and Cleland — whose case was the subject of a story in The Recorder last month — of withholding exculpatory evidence in a murder trial.

Halsey, meanwhile, was suspended for four years for intentionally withholding documents that could have helped Petaluma physician Louis Pelfini defend against charges he murdered his wife in 1999. A judge dismissed the case based on the Tiburon attorney’s misconduct.

Some attorneys who defend lawyers facing discipline believe state bars around the country, including California’s, have begun scrutinizing prosecutors more closely following the North Carolina State Bar’s decision last year to disbar Michael Nifong. The Durham County district attorney was behind the disastrous prosecution of three Duke University lacrosse players falsely accused of rape.

“Lots of prosecutors are getting caught in the crosshairs,” Los Angeles attorney Diane Karpman said, because the public senses some “aren’t playing by the rules.”

But State Bar Supervising Deputy Trial Counsel Donald Steedman, who is handling the case against Field, said that while it’s “fairly rare” to have so many cases against prosecutors under way at once, there really is no rhyme or reason.

“It’s luck, karma,” he said. “It’s just that these have come in at about the same time.”

Steedman said the State Bar doesn’t keep figures on the number of prosecutorial misconduct cases that go through the State Bar Court each year. And, he added, few cases of any type make it to trial.

“They happen only when we’re unable to reach a settlement,” he said.

Cleland is up first, with his trial beginning on April 1. Dunlap is next, facing prosecutors for three days on April 22, after an earlier day of trial in December. Field’s trial is set for May 20-23 and June 17-20. (Dates are based on the availability of judges.)

Of the three, Field has gotten the most publicity. His alleged wrongdoings — including reportedly suppressing evidence that could have cleared two accused rapists — were widely covered in the press, particularly as part of a scathing five-part series in the San Jose Mercury News two years ago. State Bar prosecutors accuse Field, a 15-year veteran of the Santa Clara County DA’s office, of abusing his authority in three separate cases.

The most egregious charges stem from the 1998 rape convictions of Damon Auguste and Kamani Hendricks. Six years after Auguste was sentenced to nearly 19 years in prison and Hendricks to more than 37 years, Santa Clara County Superior Court Judge James Emerson overturned their convictions in 2004 based on alleged misconduct by Field.

The judge found Field hadn’t disclosed important DNA laboratory notes or strong evidence that the supposed victim — a 15-year-old girl identified only as Monique —had fabricated the assault for fear her parents would punish her for being out after curfew. The judge also said Field had no authority to serve search warrants on the defendants, their families and witnesses during habeas corpus proceedings.

In an unrelated case, the State Bar accuses Field of concealing evidence that could have been used to repudiate witnesses who fingered a man for the murder of a San Jose drug dealer. And in a third case, Field is accused of ordering a supposed 13-year-old male to undergo a dental exam — over a judge’s objections — to determine if he was really an adult so Field could file tougher charges.

Steedman, who is prosecuting Field’s disciplinary case with State Bar Deputy Trial Counsel Cydney Batchelor, called the charges against Field “pretty significant.”

“It’s important that prosecutors treat defendants fairly,” he said, “and when that doesn’t happen, our system of justice is threatened.”

Nonetheless, he said no decision has been made yet about whether to seek disbarment.

Field’s attorney, Allen Ruby, a partner in San Jose’s Ruby & Schofield, wouldn’t let Field talk to the press. But in 2004, after the rape convictions against Auguste and Hendricks were overturned, Field told reporters the judge’s decision was “an injustice to the victim” and insisted there was “overwhelming physical evidence” the girl had been raped.

After more allegations of wrongdoing were raised in 2006, Field told the Mercury News he had tried to play by the rules at all times. “I know in my heart that I did not intentionally engage in misconduct,” he said. “I take the ethical obligations of the office seriously.”

Ruby said last week his client’s defense strategy will be simple.

“He’s innocent,” Ruby said. “The State Bar has made a variety of allegations that we think are unsound and unproveable.” He said Field “looks forward to his trial and vindication.”

Ruby would not go into detail about his defense plans. But in court papers, Field denied all allegations.

Field, who graduated from Boalt Hall School of Law, has been with the Santa Clara County DA’s office since getting his Bar license in 1993. In May 2006, he was reassigned from homicide and gang cases to the high-technology crime unit.

Trouble for Santa Cruz Deputy DA Dunlap began in 1995 when, according to State Bar records, he crashed his truck into another vehicle while driving drunk. A prosecutor in San Joaquin County at the time, Dunlap allegedly claimed someone named John had been driving.

“This was a total lie,” State Bar Deputy Trial Counsel Tammy Albertsen-Murray wrote in her pretrial statement. “There was no one named ‘John’ involved at all; [Dunlap] was the driver.”

The more serious charge against Dunlap, however, accuses him of intervening in a hit-and-run and insurance fraud case that had been filed against his then-girlfriend Amelita Manes. State Bar prosecutors claim Dunlap entered a San Joaquin County courtroom in 2002 when Manes’ case was on calendar and talked to the judge, despite having been ordered by his bosses to keep hands off.

In court papers, Albertsen-Murray said Dunlap didn’t tell the judge he knew the defendant and that he was forbidden from having any contact with her case.

“In fact,” she wrote, “[Dunlap] — a senior homicide prosecutor at the time — acted as if he had authority to appear in the case and personally stated to the court that the district attorney’s recommended resolution of the Manes case was a six-month continuance for dismissal, which was a total fabrication.”

Albertsen-Murray is seeking Dunlap’s disbarment.

Dunlap, who was fired from the San Joaquin County DA’s office in 2002, didn’t return a telephone call seeking comment. But his attorney, San Francisco solo practitioner Jonathan Arons, said last week that Dunlap did nothing wrong.

“He wasn’t at the prosecutor’s table,” Arons said. “He was watching with all the other attorneys in the courtroom, and he answered a question asked by the judge. He didn’t say he was appearing for the people [or] appearing for Ms. Manes.”

Since joining the Santa Cruz County DA’s office, Arons said, Dunlap has tried 25 cases to verdict and is currently involved in a murder trial. If there were anything to the State Bar’s charges, Arons asked, “why’d another DA hire him on the spot?”

Arons said Dunlap — a prosecutor for the entire 20 years he’s had his Bar license — admits he got a DUI in 1995, but said the State Bar was simply “piling on” by filing charges for that incident.

Steedman said the State Bar considers misbehavior by prosecutors very serious because they are in some ways bound by stronger ethical obligations than other attorneys.

“Their client is the people and their obligation is to seek justice,” he said, “as compared to a defense attorney whose obligation is to that client — within his ethical responsibilities.”

March 18, 2008

U.S. SUPREME COURT GRANTS CERTIORARI ON TWO MAJOR CASES

There are a couple of major cert. grants from the U.S. Supremes:

Can the DA use a chemist's report that a substance was cocaine in lieu of actual live testimony by the chemist, or does this violate Crawford (541 U.S. 36)?

Melendez-Diaz v. Massachusetts; cert. granted, 2008 DJ DAR 3661; DJ,
3/18/08; US Supremes

Must the jury find the facts used to justify imposition of consecutive sentences, or does this violate Cunningham?

Oregon v. Ice; cert. granted, 2008 DJ DAR 3662; DJ, 3/18/08; U.S. Supremes

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March 15, 2008

CAN OPPOSING COUNSEL SEARCH YOUR COMPUTER IN FEDERAL CASES? COULD BE

Under the 2006 amendments to F.R.C.P. 34(a), it is now possible in a civil case for a litigant to get access to an opponent's computer or a computer network to conduct their own search for electronic evidence if certain standards are met. See Nolan M. Goldberg, Is Your Data Wide Open to Your Opponent?, in the NLJ.

This is an interesting article, and it discusses case law and protective measures to insure that the computer search does not go too far or that protected or irrelevant information is not disclosed. One thing not mentioned that maybe should have been is whether a court authorized search of a computer should be governed by the Fourth Amendment. It is a private search if a private litigant is involved, but, if court approval for such a search is sought, is not the Fourth Amendment implicated because an arm of the government authorized it?

The standards mentioned in the case law would appear to satisfy at least an administrative search-type probable cause standard:

Search%2520Computer.png


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March 13, 2008

PRISONERS' RIGHTS - SUFFICIENCY OF PLEADINGS

Here's a good one for the little guy who has no one but himself to prosecute a lawsuit against the gigantic powers of the government.

Th big, bad, rich and powerful prison officials who appealed district court's ruling on grounds that pro se prisoner's complaint failed to specifically plead a violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) were "plainly incorrect" because of "the longstanding principle that federal complaints plead claims, not causes of action or statutes or legal theories."

The complaint was sufficient, and the case can go on.

Alvarez v. Hill (9th Cir. 3/13/08, 06-35068) 08 C.D.O.S. 2912

good-cop-bad-cop.jpg


March 11, 2008

WILLFULLY FALSE STATEMENTS--ABSENCE OF FLIGHT

CALCRIM 362 (formerly CALJIC 2.03) tells the jury that they can consider a willfully false or deliberately misleading pretrial statement made by the def. in order to show consciousness of guilt, but that the jury can't convict solely based on such a statement.

The Court of Appeal rejects a challenge to CALCRIM 362, saying that it doesn't unfairly pinpoint one piece of evidence.

On a second issue, the Court of Appeal says that the court doesn't have a sua sponte duty to instruct on lack of flight by the defendant.

Comment: We search high and low for the case that says that the judge does have to instruct the jury that lack of flight shows consciousness of innocence, because the other side gets the opposite instruction that goes against us. But there's no such case. The closest is People v. Williams, 55 Cal.App.4th 648, which says that the judge has discretion to give such an instruction.

People v. McGowan; 2008 DJ DAR 3393; DJ, 3/11/08; C/A 3rd

LIAR.gif

March 6, 2008

PROBABLE CAUSE FOUND IN SAN DIEGO DRUG CASE WHERE STOP WAS BASED ON UPSIDE-DOWN LICENSE PLATE

SAN DIEGO CRIMINAL DEFENSE NEWS: Now, I'm all for fighting the good fight, pushing the envelope, raising the Sword of Gideon and all that, but when your methhead client drives around the streets with his meth, and his license plate is on upside down, well, he just deserves to be caught. And did the appellate attorney argue this case with a straight face? (CRINGE)

People v. Duncan (2008) , Cal.App.4th
[No. D050458. Fourth Dist., Div. One. Mar. 5, 2008.]
THE PEOPLE, Plaintiff and Respondent, v. LEONZA KEVIN DUNCAN, Defendant and Appellant.

(Superior Court of San Diego County, No. SCS201879, Alvin E. Green, Jr., Judge.)

(Opinion by McIntyre, J., with McConnell, P. J., and Huffman, J., concurring.)

COUNSEL

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

OPINION
MCINTYRE, J.-

This case presents an issue as to whether driving with an upside down license plate constitutes a violation of Vehicle Code section 5201. (All further statutory references are {Slip Opn. Page 2} to the Vehicle Code.) As a matter of first impression in California, we conclude that the answer is yes.

112_0608_mtts52s%2BAmarillo_to_Dallas%2Binfamous_upside_down_license_plate.jpg

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March 4, 2008

SAN DIEGO'S PACIFIC LAW CENTER SALE CALLED A "FRONT"

FROM THE COURTHOUSE NEWS SERVICE
Wednesday, February 27, 2008

http://www.courthousenews.com/2008/02/27/Attorney_Calls_Pacific_Law_Center_A_Front_For_Unauthorized_Practice_Of_Law.htm

Attorney Calls Pacific Law Center A Front For Unauthorized Practice Of Law

SAN DIEGO (CN) - A former attorney for the Pacific Law Center, a champion for conservative issues, says the center "routinely commits malpractice," charges unearned fees and "takes legal action detrimental to clients."

Pacific Law Center "is an unlawful 'front' organization created by defendants Larry Majors, Austin Majors, and Jeffrey Phillips to permit them to engage in and profit from the unauthorized practice of law," one of their former attorneys says in Superior Court.

Carl Hancock says the La Jolla-based defendants "routinely commit malpractice in the handling of legal matters," churn legal fees, "take legal actions which are detrimental to the clients," charge excessive and unearned fees, and that Larry Majors is a felon whose conviction bars him from practicing law in California, and who fled from Texas "when faced with prosecution for the unauthorized practice of law." Hancock says he worked for the defendants from March 11, 2007 until Jan. 19, 2008, and that he was fired for repeatedly protesting their unethical and illegal behavior.

He describes the PLC as a fraudulent conspiracy that defrauds clients to unjustly enrich themselves, that the Majorses and Phillips, oversee the work of defendant "front" attorneys Alan E. Spears, Thomas Slattery and Kerry Steigerwalt, and that they fraudulently conveyed assets of the PLC to Steigerwalt, to duck liability.

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