April 29, 2008

PILOTS & DUI: REPORTABLE ADMINISTRATIVE ACTION FOR PILOTS

Reportable DUI/DWI Administrative Actions or Convictions for Pilots

--------------------------------------------------------------------------------
Examples of Reportable Administrative Actions (Not a comprehensive list)
Revocation, suspension, or cancellation of driver license for:
Chemical test failure
Chemical test refusal
Administrative per se orders
10-day civil revocations
Express consent revocation/suspension
Examples of Reportable Convictions (Not a comprehensive list)
Driving Under the Influence (DUI)
Driving While Impaired (DWI)
Driving with an Unlawful Blood Alcohol Level
Operating While Under the Influence (OWUI)
Note: Under 14 CFR 61.15, all pilots must send a Notification Letter (MS Word) to FAA’s Security and Investigations Division, within 60 calendar days of the effective date of an alcohol-related conviction or administrative action.

Federal Aviation Administration
Security and Investigations Division (AMC-700)
P.O. Box 25810
Oklahoma City, OK 73125
Failure to Send a Notification Letter
Failure to send a Notification Letter within 60 days to FAA’s Security & Investigations Division is grounds for:

Denial of an application for any certificate, rating, or authorization issued under this regulation for up to one year after the date of the motor vehicle action
Suspension or revocation of any certificate, rating, or authorization issued under this regulation


April 28, 2008

FEDERAL SENTENCING-POST PLEA CONDUCT

Defendant's post-plea involvement in jail violence could be considered failure to accept responsibility and form the basis for the court to deny that downward adjustment.

United States v. Mara (9th Cir. 4/28/08, 07-30102) 08 C.D.O.S. 4958


April 25, 2008

SAN BERNARDINO COPS - WITH SHOOTING HISTORIES - KILL INDIVIDUAL

Here is another in a long line of recent police shootings.

http://www.goodbadcorrupt.com/showthread.php?t=811

gun.jpg

April 22, 2008

CALIFORNIA EVIDENCE - TESTIMONY RE: EVIDENCE BEING SENT TO DEFENSE LABORATORY

A Police expert testified that she did not test blood on a ring because it would have consumed it in case it had to be tested again, and that the evidence had been "released to a defense lab." Defense counsel objected, but not on the grounds raised on appeal.

Held, even if claims are cognizable, the testimony did not violate the work product privilege as it applies to criminal cases (only "core" work product protected; see Garcia v. Superior Court (2007) 42 Cal.4th 63, 63, fn. 2).

The Court refuses to reach constitutional issues regarding the admission of the testimony because trial counsel did not object on constitutional grounds, leaving a writ of Habeas Corpus open on that issue.
.
People v. Zamudio (Ca. Sup. Ct., 4/21/08, S074414) 08 C.D.O.S. 4544

Continue reading "CALIFORNIA EVIDENCE - TESTIMONY RE: EVIDENCE BEING SENT TO DEFENSE LABORATORY" »

April 21, 2008

CUSTOMS OFFICERS AT INTERNATIONAL AIRPORT CAN SEARCH YOUR LAPTOP

SEARCH & SEIZURE - SUSPICIONLESS SEARCH OF AIRLINE PASSENGER'S LAPTOP

Customs officers at international airports may examine the electronic contents of a passenger's laptop computer without reasonable suspicion. The search here did not damage the computer and was not conducted in a "particularly offensive manner."

United States v. Arnold (9th Cir. 4/21/08) 06-50581) 08 C.D.O.S. 4533


Continue reading "CUSTOMS OFFICERS AT INTERNATIONAL AIRPORT CAN SEARCH YOUR LAPTOP" »

April 20, 2008

DNA TESTS MAY OFFER DEEPER EXAMINATION OF THE ACCUSED

DNA Tests Offer Deeper Examination Of Accused
Biological, Emotional States Scrutinized

Twenty years after DNA fingerprints were first admitted by American courts as a way to link suspects to crime scenes, a new and very different class of genetic test is approaching the bench.

Rather than simply proving, for example, that the blood on a suspect's clothes does or does not match that of a murder victim, these "second generation" DNA tests seek to shed light on the biological traits and psychological states of the accused. In effect, they allow genes to "testify" in ways never before possible, in some cases resolving long-standing legal tangles but in others raising new ones.

Already, chemical companies facing "toxic tort" claims have persuaded courts to order DNA tests on the people suing them, part of an attempt to show that the plaintiffs' own genes made them sick -- not the companies' products.

In other cases, defense attorneys are asking judges to admit test results suggesting that their clients have a genetic predisposition for violent or impulsive behavior, adding a potential "DNA defense" to a legal system that until now has held virtually everyone accountable for their actions except the insane or mentally retarded.

Some gene tests are even being touted for their capacity to help judges predict the likelihood that a convict, if released, will break the law again -- a measure of "future dangerousness" that raises questions about how far courts can go to abort crimes that have not yet been committed.

Most of these tests are still research tools hovering on the margins of admissibility; only a few have made the leap from the lab bench to the courtroom. But scientists' expanding ability to query people's genes, and lawyers' efforts to introduce those findings as evidence, are forcing scholars and judges to think in new ways about the Constitution's protections against self-incrimination and unreasonable search and seizure.

At its extreme, the prospect of getting an accurate handle on future dangerousness challenges the very notions of autonomy and free will that are at the core of any theory of criminal responsibility.

"So far, judges have been cautious," said Karen Rothenberg, dean of the University of Maryland School of Law. But given what Rothenberg calls the "love affair" that courts have had with DNA fingerprints, she and others fear that judges and juries will fall too quickly for the new tests.

"As the cost of gene testing comes down . . . we're likely to see clever defense counselors taking steps to use the outer reaches of genetic testing," said Judge Andre M. Davis of the U.S. District Court for the District of Maryland, speaking at a recent Baltimore roundtable co-sponsored by the law school and the National Human Genome Research Institute. "The question is, can the judge manage the case so the jury is not taken down the primrose path of genetic test results?"

Shadows of Eugenics

Genes have had a rocky relationship with justice, dating at least to the early years of the last century, when eugenics laws encouraged forced sterilizations to break the cycle of "inherited criminality."

"Shiftlessness, nomadism, pauperism all were assumed to have biological and genetic causes," said Jeffrey R. Botkin, a physician and ethicist at the University of Utah School of Medicine.

Today, Botkin said, scientists know that genes are only part of what adds up to human health and behavior. But with environmental influences more difficult to pin down and a torrent of new, if preliminary, DNA findings to choose from, lawyers and judges are once again being tempted to lean heavily on genes to help them make difficult legal decisions, he said.


Continue reading "DNA TESTS MAY OFFER DEEPER EXAMINATION OF THE ACCUSED" »

April 19, 2008

SAN DIEGO PROSECUTOR FORCED TO DISMISS CHARGES AGAINST INNOCENT WOMAN ACCUSED OF POISONING MARINE HUSBAND-SHAME ON THE DISTRICT ATTORNEY

In a shocking development for the general public, but a not-so-shocking development to seasoned defense attorneys, San Diego District Attorney Bonnie Dumanis has dropped murder charges against Cyntha Sommer.

The only evidence used to convict Sommers was contaminated. Even the prosecution's chief expert at the trial suggested that it might be contaminated. But the dismissal of SOmmer's case came only after the defense attorney demanded retesting of the tissue samples. There was no arsenic in them. There never was.

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The prosecutor trying the case, Laura Gunn, in an attempt to win a conviction at all costs, claimed Sommer's "motive" for killing her husband was to obtain the proceeds of his insurance policy. They put forth that after she obtained this policy, she puchased breast implants and partied. Murder for breast implants? That, plus contaminated "evidence" was the slim speclation the prosecutor used to convict an innocent woman.

I recently sent a letter to Dumanis outlining that I had learned the Sheriff's crime lab was involved in "switching" blood samples and attributing them to the wrong people, and keeping a lab witness on the public payroll who testifies falsely. Click HERE for article. And after that, San Diego attorney Mike Fremont caught a San Diego Police Department crime lab criminalist lying in the witness stand. A complaint to Dumanis yielded no action. Click HERE for article.

Shame on the San Diego District ttorney's Office.

By Dana Littlefield
STAFF WRITER

April 18, 2008

Cynthia Sommer, accused of fatally poisoning her Miramar Marine husband with arsenic, spent two years and four months behind bars. Yesterday, the 34-year-old mother of four walked out of the Las Colinas jail a free woman, after prosecutors dropped the murder case against her.

Prosecutors said they now have reasonable doubt that Sgt. Todd Sommer was poisoned, based on conclusions reached by a new set of toxicology experts.

San Diego Superior Court Judge John Einhorn granted the prosecutors' motion to dismiss “without prejudice,” meaning they have the option to refile charges later.

Cynthia Sommer's defense lawyer has said he plans to request a dismissal with prejudice.

District Attorney Bonnie Dumanis said at a news conference yesterday that her office acted appropriately, based on available evidence, when it charged Sommer with murder in March 2006 and tried her in January 2007. Sommer was arrested in Palm Beach County, Fla., in November 2005.

Prosecutors sought more forensic testing when defense attorneys raised questions about the evidence during and after the trial. Testing on other tissue samples from Todd Sommer revealed no arsenic.

Cynthia Sommer talked to her family on the phone yesterday after she was released from Las Colinas jail in Santee. Jacky Scott of Welcome Home Ministry was with her.
“Today justice was done,” Dumanis said. “This is how the system is supposed to work.

“As soon as we had the information that pointed to reasonable doubt, we brought this case this afternoon to get the matter dismissed,” she said, adding that prosecutors acted quickly “so that Sommer didn't spend any additional time in custody.”

Defense lawyer Allen Bloom was unconvinced.

“No one should say that this system worked,” he said. “This dismissal wasn't because of the prosecution's efforts; it was done because the defense demanded it.”

Todd Sommer, 23, died Feb. 18, 2002, after collapsing at the couple's home at the Miramar Marine Corps Air Station. Doctors first determined he died of natural causes, but tests later revealed high levels of arsenic in his liver and kidneys.

Witnesses testified during the trial that Cynthia Sommer slept with other men, partied heavily and used some of her husband's life insurance money to buy breast implants shortly after he died.

Prosecutor Laura Gunn argued that Sommer's behavior indicated she was “celebrating” rather than mourning.

On Jan. 30, 2007, a jury convicted her of first-degree murder and allegations of murder by poison and for financial gain. She faced a life sentence.

In December, a judge granted Sommer's request for a new trial, saying her former attorney, Robert Udell, made several mistakes that might have prejudiced jurors. Udell admitted he made some errors.

Bloom said jurors never should have heard about Sommer's partying and sexual behavior. He also said early tests on Todd Sommer's tissues were flawed and likely contaminated.

According to court documents, prosecutors learned in March that several of Todd Sommer's tissue samples had been stored at San Diego Naval Medical Center in Balboa Park. They were tested this month at a lab in Quebec, which found no arsenic.

Dr. Jean-Philippe Weber, the Quebec lab's former director, prepared a report stating that the previous test results were “physiologically improbable” and that contamination was possible.

Yesterday, Bloom reaffirmed his contention that Todd Sommer died of natural causes, as doctors determined initially.

“Young people and healthy people die from sudden cardiac arrest in our country every year,” Bloom said. “Todd Sommer was sadly was one of those people. I know he didn't die because of Cynthia Sommer.

Continue reading "SAN DIEGO PROSECUTOR FORCED TO DISMISS CHARGES AGAINST INNOCENT WOMAN ACCUSED OF POISONING MARINE HUSBAND-SHAME ON THE DISTRICT ATTORNEY" »

April 19, 2008

NINTH CIRCUIT REQUIRES COURT TO CONSIDER "RELEVANT CONDUCT"

The government used a Confidential Informant to complete multiple sales of crack. The defendant faced three counts, but plead to only one.

The Presentence Report used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up.

The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did.

The 9th Circuit agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th Circuit (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.

U.S. v. Grissom, No. 06-10688 (4-15-08).

Continue reading "NINTH CIRCUIT REQUIRES COURT TO CONSIDER "RELEVANT CONDUCT"" »

April 18, 2008

CALIFORNIA RESTITUTION - UNDOCUMENTED CLAIMS OF LOSS

People v. Gemelli (C.A. 4th, 4/18/08, E043682) 08 C.D.O.S. 4598

A victim's "bare, unverified" statement of losses is sufficient to sustain an order for direct restitution under Penal Code section 1202.4, subdivision (f). This court disagrees with People v. Vournazos (1988) 198 Cal.App.3d 948.

The defendant's testimony refuting amounts did not have to be believed.

April 18, 2008

CALIFORNIA SENTENCING LAW: CAN COURT AGGRAVATE TERM BECAUSE DEFENDANT IS ON PROBATION?

SENTENCING - AGGRAVATED TERM BASED ON PROBATIONARY STATUS

People v. Medrano (C.A. 3rd, 4/18/08, C056068) 08 C.D.O.S.

Imposition of the upper term by the sentencing judge based on a defendant's probationary status did not violate Cunningham v. California (2007) 549 U.S. ___.

April 15, 2008

U.S. SUPREME COURT WILL HEAR CASE THAT COULD DESTROY PROSECUTORIAL IMMUNITY

Justices Accept Question of Prosecutors as Lawyers or Managers

By LINDA GREENHOUSE
Published: April 15, 2008

WASHINGTON — The Supreme Court accepted an appeal on Monday that could help define the boundaries of prosecutorial immunity in an era when the officials who head big prosecutors’ offices function as managers as much as they act as hands-on lawyers.

Under longstanding legal doctrine, prosecutors are absolutely immune for their judgments in handling cases, even if a faulty judgment results in a wrongful conviction.

In this instance, a man wrongfully convicted of murder on the basis of false testimony by a jailhouse informant sued the top two officials of the Los Angeles County district attorney’s office on the ground that they had failed to set up a proper management system that could have flagged the problematic nature of the informant’s testimony.

In rejecting the officials’ claim of absolute prosecutorial immunity, the federal appeals court in San Francisco held that the suit was related not to the men’s role as prosecutors, but as office managers.

The officials’ Supreme Court appeal argues that this decision circumvented a rule that has shielded prosecutors from second guessing by the courts and warns that it would “encourage a flood of lawsuits” that would make it difficult for prosecutors to do their work.

The plaintiff, Thomas L. Goldstein, served 24 years in prison before the Federal District Court in Los Angeles granted his petition for a writ of habeas corpus. In 2005 he filed a civil rights suit seeking damages from John K. Van de Kamp, who at the time of his trial in 1980 was the Los Angeles district attorney, and Curt Livesay, who was Mr. Van de Kamp’s chief deputy.

The suit said that because of inadequate record keeping, the deputy prosecutors who handled the case were unaware that their star witness, a jailhouse informant, Edward Floyd Fink, not only falsely testified that Mr. Goldstein confessed to him, but also lied when he said on the stand that he was not receiving, and had never received, any benefits for testifying on behalf of the state.

In fact, Mr. Fink had been an informant for the Long Beach for years and had in turn received reductions in his prison sentence for testifying in earlier trials, as well as in Mr. Goldstein’s case.

Prosecutors are required to inform the defense of information that could serve to impeach the credibility of prosecution witnesses, and the prosecutors would have had to turn over the information on Mr. Fink to Mr. Goldstein’s lawyers, had they known about it.

Mr. Goldstein’s suit argues that under a 1972 Supreme Court decision, Giglio v. United States, a prosecutor’s office has an affirmative obligation to maintain a record-keeping system ensuring that all lawyers in the office have access to information about promises to witnesses.

Mr. Van de Kamp and Mr. Livesay argued unsuccessfully in the lower federal courts that the suit should be dismissed on the basis of absolute prosecutorial immunity. In their Supreme Court appeal, Van de Kamp v. Goldstein, No. 07-854, they argue that “the dissemination of exculpatory information to the defense” is a “core prosecutorial function,” distinct from administrative functions like “hiring procedures and compensation schedules.” The lower courts were mistaken in viewing their failure to have a proper record-keeping system as administrative rather than prosecutorial, they maintain.

Mr. Goldstein’s lawyer argues that “entering information into and retrieving information from a data-indexing system” are “transparently administrative activities” and that no “floodgates” will open, because most prosecutors’ offices, including Los Angeles, now have the systems to avoid future mistakes.

Continue reading "U.S. SUPREME COURT WILL HEAR CASE THAT COULD DESTROY PROSECUTORIAL IMMUNITY" »

April 13, 2008

COULD PROSECUTORS BE LIABLE FOR WRONGFUL CONVICTIONS? LET'S HOPE SO!

LAWSUIT CHALLENGES PROSECUTORS' IMMUNITY

COMMENTARY: While the California Legislature is considering a bill to hide police misconduct -backed by powerful police unions - the federal courts are less mermerized by law enforcement. The United States Ninth Circuit Court of Appeals has opened the door to supervisor liability of prosecutors in wrongful convictions cases. Let's hope it lasts. It's time we had accountability.

To read my letter to Assemblyman Solorio opposing the police bill click HERE. For the San Francisco Chronicle's take in the police bill, click HERE.

To read the article in the release of Cynthia Sommer after her wrongful prosecution by San Diego District Attorney Bonie Dumanis, Click HERE.

By David G. Savage, Los Angeles Times Staff Writer
April 13, 2008

WASHINGTON -- Prosecutors have long been shielded from lawsuits brought by people who were wrongly convicted. Even if a defendant is later shown to be entirely innocent, the prosecutor who brought the charges cannot be held liable for the mistake.

The Supreme Court has ruled that "absolute immunity" is needed so that prosecutors -- and judges -- can do their jobs without fear of legal retaliation.

But a California case that the high court is considering taking could open a back door for such lawsuits. Prosecutors in Los Angeles are urging the court to block a suit from a man who was wrongly convicted of murder because, they say, it will allow "a potential flood" of similar claims across the nation.

Last year, the U.S. 9th Circuit Court of Appeals set off alarms among prosecutors in the West when it ruled that supervising prosecutors could be sued for alleged management failures that led to a wrongful conviction. Its ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles Dist. Atty. John K. Van de Kamp.

Continue reading "COULD PROSECUTORS BE LIABLE FOR WRONGFUL CONVICTIONS? LET'S HOPE SO!" »

April 13, 2008

CALIFORNIA POLICE TRYING TO HIDE BEHIND THE SHIELD

HIDING BEHIND THE SHIELD
John Diaz

Sunday, April 13, 2008

The San Francisco Chronicle Editorial

The law enforcement lobby is going a bit crazy in Sacramento these days. It's working to overturn Supreme Court decisions that affirm the right of you - the taxpayers who pay the salaries of public safety officers - to know who they are, how much they are being paid and the extent of their disciplinary records.

I'm heartened to report that the two legislators who were tapped by law-enforcement lobbyists to carry these two insidious measures appear to be getting squeamish under the initial glare of public scrutiny.

This appears to be yet another instance where certain members of the California Legislature have no idea of what is being done in their names. The process allows for too many bills, too little time to reflect on them and too much deference to the special interests who actually draft the measures.

Tom Newton, general counsel for the California Newspaper Publishers Association, became alarmed last week when he spotted language for a proposed overhaul of AB1855 that was expected to reach the Assembly Public Safety Committee on Tuesday.

Newton described it as a "very efficient" evisceration of two recent Supreme Court decisions that asserted the public's right to find out basic information about law-enforcement officers, such as who they were and how much they were paid.

The measure was sponsored by the Peace Officers Research Association of California (PORAC) and authored by Assemblyman Anthony Portantino, D-La Ca#241#ada Flintridge (Los Angeles County).

Under that proposed amendment, neither a name, salary nor other personnel information about an officer could be "subject to any mass disclosure." Under this proposal, police officers - who are disproportionately represented in six-figure incomes, typically the result of overtime - could not have been included in The Chronicle's database of public-employee salaries (sfgate.com/webdb/citypay) in San Francisco, Oakland, San Jose and Vallejo.

"It's a breathtaking power grab," Newton observed.

Reached by phone Thursday, Portantino said there was a disconnect between his intentions and the proposed amendment's language. "It has not been and will not be" introduced as currently cast, Portantino said of the version of AB1855 that has been circulating.

He insisted his goal was to find a way to "protect undercover officers" from being exposed. If so, Portantino should review the court rulings: Undercover officers are expressly protected from such disclosures under current law.

PORAC's intentions are decidedly more sweeping. It does not believe names should be attached to officers' salaries, even though other government employees' pay levels are a matter of public record. Ron Cottingham, PORAC's president, said the limitations on the use of officers' names was prompted by Web sites such as ratemycop.com, which allows the public to offer its views on officers' performance - positively and negatively, sometimes fairly and sometimes not.

"We are working with the author," Cottingham said Thursday. "It's a sensitive topic. It's a sensitive area of law."

No kidding. The idea that a law could suppress public analysis of a public employee's performance, in a public way, is anathema to this democracy.

Another disturbing bill, AB2377, by Assemblywoman Mary Hayashi, D-Castro Valley, would elevate the legal threshold for a criminal defendant or plaintiff in a lawsuit to obtain records of police misconduct. Hayashi said the "sheriff's association came to me" with this proposed measure because a "huge backlog of requests" was overwhelming the courts.

Jeff Adachi, San Francisco's public defender, fired off a scathing analysis of the bill to the Assembly Public Safety Committee.

Adachi noted that a 1974 state Supreme Court ruling laid the groundwork for the current process, which requires a defendant to establish at a hearing that an arresting officer's personnel record is relevant to the case before it can be released. Access to those records, in criminal and civil cases, is a critical safeguard against police excesses and stonewalling.

A pattern is emerging in Sacramento.

"This is a multipronged effort to shield police misconduct from the public," Adachi said. "If you think about it, the only way police misconduct becomes known is a civil lawsuit or a criminal case where it's one of the disputed issues. Other than that, internal complaints would be undetectable. You would never know."

These two measures are on hold for the moment, at their authors' requests. It seems that neither Portantino nor Hayashi anticipated the potential furor over the proposals that were presented to them.

The law-enforcement lobby is not likely to give up easily. Stay tuned.

Continue reading "CALIFORNIA POLICE TRYING TO HIDE BEHIND THE SHIELD" »

April 11, 2008

JUDGE SAYS PACIFIC LAW CENTER FAILED CLIENT - ALLOWS DEFENDANT TO WITHDRAW PLEA

JUDGE RULES PACIFIC LAW CENTER DID POOR JOB, ALLOWS PLEA TO BE WITHDRAWAL


By Greg Moran
UNION-TRIBUNE STAFF WRITER

4:56 p.m. April 11, 2008

SAN DIEGO – A Superior Court judge ruled Friday that a 19-year-old man who pleaded guilty in December to shooting two people was poorly served by his lawyers and can withdraw his plea and go to trial.
Judge Robert Ahern said Antoine Mcelroy's legal representation by lawyers who then worked at the heavily advertised Pacific Law Center in San Diego was ineffective.

After a day of testimony on Thursday Ahern said he did not believe the lawyers “adequately and properly represented the defendant.”

Mcelroy pleaded guilty to charges of attempted murder, using a firearm and doing the May 4, 2007, shooting in San Diego on behalf of a street gang. He agreed to a sentence of 37 years in prison.

But after the plea, Mcelroy had second thoughts, and his family got a new lawyer, Thomas Matthews, to try to reverse it.

With the plea withdrawn, Mcelroy could be on trial within a few months. If convicted, he could be sentenced to life in prison.

Matthews contended that the guilty plea was flawed because Mcelroy balked at admitting the gang allegation but his lawyer, Arthur Katz, overrode the objection.

Matthews also said that the work done by the law firm, which has been the subject of numerous complaints from former clients and lawsuits from former lawyers over its business practices and legal work, also let down Mcelroy. He said the firm did little work on the case after collecting a $31,000 fee and did not investigate possible defenses.

Moreover, Mcelroy's sister alleged she was having a sexual relationship with Alan Spears, the former supervising lawyer for the firm, while her brother's case was pending. Spears was Mcelroy's lawyer initially, but the case was handed to Katz.

At an all-day hearing Thursday, Katz testified and defended his work. He said he met numerous times with Mcelroy, discussed the case with him and analyzed the options.

He also said Mcelroy insisted that he get a plea bargain with prosecutors that would not give him a sentence of life in prison. He said the case against Mcelroy was solid and that going to trial “given the totality of the evidence, it certainly did not look good for him.”

Mcelroy also testified, however, and said he had little communication with Katz or Pacific Law, and his numerous phone calls were never returned. He contended he felt pressured into taking the deal and believed his lawyer was unprepared for trial.

Prosecutor Melissa Diaz argued that Katz's work on the case was fine and served Mcelroy well. She said he made shrewd tactical decisions that got the best possible result for his client. And she said the relationship Spears had should have no bearing because he was not the lawyer on the case.

But Ahern disagreed.

Outside of court Matthews said he was pleased with the outcome. He had described the legal work as “despicable” during the hearing.

“This is a victory for the community in that Pacific Law Center has been held accountable in a public forum for their poor legal work,” he said.

Katz said Friday that the entire issue “was generated by the PLC flap” and the publicity surrounding criticisms of the law firm. “Now, his lawyer will find out the realities of the case rather than grandstand about PLC,” he said referring to Mcelroy and Matthews.

All the events in the Mcelroy case occurred before local attorney Kerry Steigerwalt bought a controlling interest in the firm. Katz left the firm in January.

Continue reading "JUDGE SAYS PACIFIC LAW CENTER FAILED CLIENT - ALLOWS DEFENDANT TO WITHDRAW PLEA" »

April 10, 2008

CALIFORNIA STATE ASSEMBLY SHOULD NOT WEAKEN PITCHESS STATUTE STATE

On April 29, 2008 the Public Safety Committee of the California State Assembly will conduct hearings on proposed legislation intended to gut the rights of criminal defendants to obtain police officer misconduct information hidden in their personnel files.

Below is my letter to Assemblyman Solorio in opposition to that legislation.

April 5, 2008

Assembly Member Jose Solorio
Public Safety Committee of the California Assembly
State Capitol
1020 N Street, #111
Sacramento, California 95814

RE: AB 2377 - Custodial Records; personnel records - OPPOSE

Dear Assemblyman Solorio:

I am a San Diego criminal defense attorney and civil rights litigator. I urge you to oppose Assembly Bill 2377.

I write to remind you of how Evidence Code sec. 1043 et seq. came to be. As time goes on our memories of the vast and widespread misconduct in Los Angeles which ultimately prompted such important and necessary legislative action fades. I am here to remind you because history repeats itself.

The following is an excerpt from “Firing a Federal Prosecutor - The Isla Vista Connection" by Bob Potter, coauthor of "The Campus by the Sea Where the Bank Burned Down," an official account of the 1970 riots in Isla Vista. This give you a short synopsis of the serious misconduct perpetrate by then Los Angeles County Sheriff Peter Pitchess, and how he and his cohorts were able to destroy a fine federal prosecutor and quash all allegations of misconduct. We cannot let this happen again.

THE PRECURSOR TO THE PITCHESS STATUTE

“Robert L. Meyer was appointed U.S. Attorney for Los Angeles by President Nixon in May 1970. An active Republican, former campaign manager for U.S. Senator George Murphy, and nominee for the state Assembly, he was immediately faced with several explosive and politically controversial cases involving civil rights violations and alleged police misconduct. These included the “mistake killing” of two Mexican nationals by Los Angeles police officers, the killing of L.A. Times newsman Ruben Salazar during a riot in conjunction with the Chicano Moratorium protests, and finally, widespread charges of gross misbehavior by L.A. County Sheriff’s officers during the June 1970 disorders in Isla Vista.


“Despite strong pressure from L.A.’s elected officials, including Mayor Sam Yorty, Sheriff Peter J. Pitchess, and Police Chief Edward M. Davis, Meyer’s office pursued these allegations aggressively, convening federal grand juries to investigate the charges. In March 1971, five Los Angeles police officers were indicted by the grand jury, including three on charges stemming from the “mistake killing,” one for abetting a burglary, and one for forcing a female suspect to disrobe. These indictments ignited a huge political furor. In Salazar’s case, a coroner’s inquest ruled the death a homicide, but the police officer escaped prosecution, and no indictments were issued.

“It was the Isla Vista cases, however, that brought about Meyer’s downfall. More than 400 reports of police misconduct—including beatings, break-ins, false arrests, and sexual molestation?—?had been collected from Isla Vista residents. In May 1971, indictments were returned by a federal grand jury in Los Angeles against an unnamed number of law enforcement officers, members of the L.A. County Sheriff’s Special Enforcement Branch, and the Santa Barbara County Sheriff’s Office. With the indictments still under seal, Pitchess, Yorty, and Chief Davis all spoke out, with the latter warning that “an ill wind is blowing from Isla Vista.” Sheriff Pitchess flew to Washington, D.C. and met on June 3 with Attorney General John Mitchell. Subsequently the indictments were quashed and never issued.

“In November 1971, Meyer was asked to resign by Assistant Attorney General L. Patrick Gray, acting on instructions from Attorney General Mitchell. “He told me they wanted my resignation, effective January 1,” Meyer recalled, “and that I could have it the easy way, or the hard way.” Meyer resigned his position and died of a heart attack a year later, at the age of 49. After leaving office, Meyer said he had been criticized as a “moderate” or “liberal,” rather than a “true conservative.” Many of his policies did not jibe with what his superiors wanted, but the big issue was “a philosophical area epitomized by the civil rights cases” (L.A. Times, Nov. 15, 1972).

“Despite all the evidence, the accused L.A. and Santa Barbara sheriffs’ officers were never prosecuted. Mitchell and Gray, for their part, would go on to become notorious figures in the Watergate scandal. Gray, briefly appointed J. Edgar Hoover’s successor at the FBI, was revealed to have destroyed evidence from Howard Hunt’s safe and was indicted for illegal break-ins, though he escaped conviction. Mitchell became the first U.S. Attorney General to be convicted of illegal activities and sent to prison.

“Their role in firing a fearless and nonpartisan U.S. attorney in Los Angeles is barely remembered today. But as we contemplate the current politicization of the attorney general’s office, it is worth remembering that quashing legitimate investigations is only a step away from instigating systematic injustice.”

RAMPARTS: HISTORY REPEATS ITSELF

It has been some 38 years since the massive police misconduct in Isla Vista was uncovered. But history repeats itself. Such misconduct was festering - again - in Los Angeles.

More than 200 lawsuits were filed in 2000 in Los Angeles by individuals alleging that they were "framed, shot or beaten by officers in the Rampart division's anti-gang unit."

The scandal involved the investigation of 82 incidents involving 50 officers and the reversal of more than 100 convictions tainted by police misconduct. Racial profiling, excessive force and the Rampart scandal caused the federal government in 2001 to impose a consent decree on the department mandating reforms.

Approximately 18 percent 200 lawsuits were dismissed. All in all, Los Angeles paid approximately $70 million in damages to the plaintiffs. The average settlement was $400,000 but 30 plaintiffs received $500,000 or more. (See Exhibit A, attached hereto, for additional information)

Taxpayers in Los Angeles might want to ask whether their tax money would be better spent reforming the police department rather than paying for officers' lawless conduct, or trying to protect them by making their personnel files more difficult to access.

SAN JOSE: HISTORY REPEATS ITSELF

Below is an article published by the San Jose Mercury News outlining the massive suits brought against another Ramparts-like situation occurring in that jurisdiction.

SANTA CLARA: HISTORY REPEATS ITSELF

In Santa Clara, the 2006-2007 Santa Clara Grand Jury reported that police misconduct was under reported as much as 50 percent by Internal Affairs (“IA”)as compared to reports reviewed by the Office of the Independent Police Auditor (“IPA”). They both got the same reports, but IA reported 50 percent less misconduct than the IPA. This strongly suggests that the police department’s own internal affairs department is complicit in sweeping misconduct under the rug. This is the quintessential “fox guarding the henhouse” example.

SAN DIEGO: A CESSPOOL OF MISCONDUCT

We have the same issues in San Diego as in Los Angeles and San Jose. The problem,
much of the time, is that prosecutors and judges protect law enforcement officers at all costs, just as they protected Peter Pitchess in Los Angeles in the 1970's.

Let me give you some examples.

A. I was a deputy public defender in 1992. I noticed over a period of just a week one officer arrested an unusually high number of people every night. I recall seeing five police DUI arrest reports on one night for this officer. But there was more. It looked like the officer had “whited out” the names of the suspects, and written new names in over the white out. The reports all looked essentially the same- the suspect usually was alleged to have “rolled” through an intersection in Mission Beach. But the suspect’s name was different from report to report. I reported this to my supervisor and heard nothing else.

In 2006 I saw that name again. History seemed to be repeating itself. To make a very long story short, I learned that a former city attorney prosecutor had gotten this police officer kicked off the DUI enforcement team. It seems that after the police department was satisfied that no one would be able to track this misconduct, they put him right back in the same neighborhood and he began falsifying police reports again.

What is shocking about this case is that the prosecutor who got this officer kicked off the DUI enforcement team for falsifying records is refusing to cooperate with me. He is a judge now. He never told any defense attorney that I know of about the officer falsifying reports. And now, some 14 years later, he has declined to assist me in my investigation which I take as tacitly trying to hide this officer’s continued misconduct from the defense bar.

Since I learned of this officer’s misconduct, numerous of his cases have been dismissed when defense attorneys caught him lying. We have been building up our own dossier of misconduct and sharing it because the courts are reluctant to provide us documents in this officer’s Pitchess file. I suspect this is because most of the judges run on a “Law Enforcement’s Choice” ticket for re-election. Granting pitchess motions bodes badly for re-election given the power of the police unions.

I am counsel on a Fourth District Court Appeal, Division One, case where a justice issued an Order to Show Cause why the Pitchess decision denying my request in that case should not be reversed. In short, the prosecution withheld evidence. The trial court, a former police officer, denied a very valid motion on a this rogue officer for no other reason than to protect him. But the Court of Appeal issued a stay of proceedings and demanded the City answer.

I’m still talking about the same police officer.

Another example of the prosecutors trying to protect this known rogue officer occurred when a prosecutor put him on the witness stand to lie. A Deputy City Attorney knew that defense counsel was going to call the officer’s sergeant to testify against the rogue officer in a suppression motion. Instead of just conceding that this rogue officer lied, the prosecutor put him on the stand. He lied. His sergeant testified and impeached the officer. The prosecutor put the rogue officer back on the witness stand to tell the judge that the sergeant was wrong. In short, this prosecutor suborned perjury. The judge granted the defense attorney’s motion and the case was dismissed based on the lack of this rogue officer’s credibility.

But the judge took no action against the prosecutor for putting on false testimony.

This rogue officer is still patrolling. He is still engaging in the same behavior. He’s out there tonight.

B. In 2000 another rogue officer from the DUI task force stopped a young Irish woman for “squealing” her wheels as she turned out of a driveway. The stress caused her to have an asthma attack. She asked the officer is she could use her inhaler. He said no. She repeated her requests continuously until she could stand it no longer. She reached into her pocket for her inhaler. The officer slammed her face into the cement, breaking her nose. The City paid out a hefty sum in damages after a civil rights case was filed. She was so terrified of this officer she moved to San Francisco.

Fast forward to 2007. A paraplegic is stopped by this same officer for allegedly making an illegal turn. The paraplegic was ordered out of the car. He told the officer he could not get out. The officer started yelling at him to get out. A passenger got the wheelchair out of the trunk. The paraplegic got himself into the wheelchair. The officer wheeled him to the rear of the patrol unit where he yelled, “Get out!” The paraplegic asked for accommodations under the Americans With Disabilities Act. He asked for a van. The office started yelling for him to get into the rear of the patrol unit. He could not. The officer hoisted him out of his chair and threw him longways into the back of the cruiser. Then the officer raced down the highway at speeds of more than 90 mph and slammed his brakes on from time to time so the paraplegic would slam into the rear of the passenger seat. Is a well known police abuse technique called the “Hollywood Screen Test.”

Once at the station, the officer yelled at the paraplegic to “get out.” Again, he said he could not. So, the officer grabbed onto the paraplegic’s ankles and pulled him out of the police cruiser, causing the man’s head to slam on the cement floor and bounce. He sustained a rotator cuff injury and a concussion.

The police report says that the paraplegic “walked with an unsteady gait.” The paraplegic wishes he could walk with any gait. But, he cannot walk at all.

I filed a Pitchess motion on this officer. I’ve done it many times. I know he has a massive file because I’ve had several judges provide me damning information from this file. What is shocking is that other judges have told me once they have reviewed the file that there is nothing discoverable in it. These judges lied about the empty contents of the file to assist the officer or the prosecution, not knowing I knew they were lying. That’s the power of the police unions.

After I filed the Pitchess motion in this case, and was denied the evidence I know exists therein, the city filed “resisting arrest” charges. They did that either to retaliate against the client for exercising his right to seek this discovery, or they waited to file this false charge until after the motion was denied to limit my showing of “good cause.” Now that I have filed another Pitchess motion, the city has accused me of forum shopping to find a judge who would grant the motion when, in fact, I am entitled by law to another motion give the new, false, allegations.

Why protect a cop who has cost the taxpayers money and who will do so again?

C. I represent a teenager, a former high school wrestler with no criminal record, who was brutally beaten and disabled by a rogue Chula Vista police officer. The City of Chula Vista has three lawyers defending the city and the officer. They actually claim it didn’t happen. The client is now disabled. We have evidence of the officer’s brutal history, and we have evidence of the officer lying to protect himself. I suspect the City of Chula Vista has spent more than $100,000 thus far trying to defend a rogue officer who they know has a habit of beating people.

D. Several weeks ago an off duty Oceanside police officer sat in his car in a parking lot and unloaded 5 measured rounds into the car occupied by a mother and her eight-year-old son. His window was shattered, indicating that he shot at the mother and child through his window. Any other person would have been arrested for attempted murder and bail would have been set at $1 million. Instead, this officer is on leave with pay. San Diego prosecutors have never seen a cop they wanted to prosecute. Every officer involved shooting is exonerated.

PROSECUTORS PROTECT POLICE OFFICERS

This leads me into a very frightening point: prosecutors suborn perjury and withhold evidence. Now, that is not to say all prosecutors do this. Many do, however. That is why the Oceanside officer who shot the mother and child is still at large. That is why the four rogue officers listed above are still working. That is why the Isla Vista indictments were quashed. That is why Ramparts misconduct festered for so long.

Take for example, how the law firm representing the Legal Defense Fund instructs prosecutors to destroy evidence. They suggest that since evidence of police officer misconduct can be removed from an officer’s personnel file after five years, prosecutors should not warehouse such documentation in their own offices. In other words, this firm suggests that prosecutors destroy evidence the accused has a constitutional right to obtain pursuant to Brady v. Maryland (1963) 373 U.S. 83, stating, “Thus, it is in the best interest of both officers and law enforcement agencies to have a mechanism for routine destruction of citizen complaints that are older than five years. (See Exhibit B, attached herewith)

The problem is that prosecutors cannot legally or ethically destroy Brady evidence. But this Santa Monica Law firm representing law enforcement agencies suggests that they should do this anyway.

POLICE OFFICERS ARE PUBLIC FIGURES; ALLEGATIONS OF MISCONDUCT WON’T HURT THEM

This brings me to another important point: why is the sponsor of this bill worried about frivolous complaints that might harm police officers? The Constitution is not concerned with police officers feelings. It is concerned with justice. Police officers wear body armor, are given psychological assessments, carry tasers, guns, batons and pepper spray. They are supposed to be tough.

As well stated in Imig v. Ferrar (1977) 70 Cal.App.3d 48, “We agree with Plaintiff that it is distressing and demoralizing for police officers to be subjected to false allegations of brutality, but that may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands.”

This is because police officers have been held to be public officials for purposes of defamation claims. Gomes v. Fried (1982) 136 Cal. App. 3d 924, 932-934; see also McCoy v Hearst Corp. (1986) 42 Cal. 3d 835, 841, fn. 3). They are supposed to be able to withstanding scrutiny, even if it’s false.

FEDERAL COURTS WILL NEVER LIMIT PITCHESS DISCOVERY IN FEDERAL CASES

This proposed legislation may make in more difficult for individuals accused of crime to access police officer personnel files for a time. I submit, however, that California courts’ whittling away of the “good cause” requirement in the present statute is based on constitutional principles this legislature cannot legislate away.

For example, when I cross the street from state court to federal court, the rules completely change. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties may obtain discovery of any matter, not privileged, which is relevant to the subject matter of the pending action, including information reasonably calculated to lead to the discovery of admissible evidence.

In United States v. American Optical Co. 39 F.R.D. 580, 583, fn. 4 (N.D.Cal. 1966), the court noted that under the standard of relevance prescribed by Federal Rule of Civil Procedure 26(b), the court is not concerned with whether or not the documents will be admissible in evidence. The scope of discovery is much broader: "Thus, Rule 26(b) has been consistently interpreted as requiring 'relevancy to the subject matter' of the action rather than relevancy to the 'precise issues presented by the pleadings.'" Id.

Discovery rules are to be interpreted liberally. Hickman v. Taylor, 329 U.S. 495 (1974). The burden of showing the information sought is not relevant is on the party resisting disclosure. Kelly v. City of San Jose, 114 F.R.D. 653, 667-68 (N.D.Cal. 1987) Discovery should be ordered because the records are relevant to show the officer’s propensity to use excessive force and to show that supervisors had notice of the propensity but failed to take remedial steps.

There is not much in a police officer’s personnel file that is not discoverable in federal court. For example, in Soto v. City of Concord, 162 F.R.D. 603 (E.D.Cal. 1995), the following records were discoverable: employee appraisals, field operations divisional memo, times cards for dates of incident, training records, employee application, letters of commendation, employee performance appraisals, certificates of promotion, memo regarding interviews, service recognition, employee orientation, records of promotion, memo regarding change of assignment, employee supplemental information sheet, written reprimands.

Statements of interviews of persons having a role in or contact with a case are relevant. Internal affairs histories and statements are relevant, regardless of whether or not those officers are named as parties. Hampton v. City of San Diego, 147 F.R.D. 227, 229 Cal. 1993) Mental, psychological or physical conditions of officers are discoverable. Soto, supra, at P. 8 (citing Mueller V. Walker, 124 F.R.D. 654, 659 (D. Or. 1989).

In Renshaw v. Ravert, 82 F.R.D. 361, 363, (E.D.Pa., 1979), where plaintiffs sought information from police files of prior suits or disciplinary proceedings, the court declined to express a view concerning the admissibility of the information but held, relying on United States v. I.B.M., 66 F.R.D. 215, 218, (S.D.N.Y. 1974), that "discovery is to be considered relevant where there is any possibility that the information sought may be relevant to the subject matter of the action." [Emphasis in original.]

The court further held that matters affecting the credibility of a witness or matters that might be used in impeaching or cross-examining him at trial are discoverable. Renshaw, supra, at 363. Accord: United States v. Meyer, 398 F.2d 66, 72 (9th Cir., 1968).

Thus, not only is the internal investigation into the instant incident discoverable, evidence of other instances of conduct is discoverable because it is relevant to the subject matter of the litigation and is relevant on the issues of credibility, notice to the employer, ratification by the employer and the intent or motive of the officer.

It should be noted the privilege afforded by California Evidence Code Section 1040
has no application in federal actions. See, e.g., Kerr v. United States District Court, 511 F.2d 192, 197-198 (9th Cir.1975), affirmed 426 U.S. 394 (1976); Gill v. Manuel, 488 F.2d 799, 803 (9th Cir.1973); Miller v. Panucci, 141 F.R.D. 292, 297-299 (C.D.Cal. 1992).

In Youngblood v. Gates, 112 F.R.D. 342, 344 (C.D.Cal. 1985), the court also held that federal law controls the issue of the existence and scope of privilege in a federal question case. The Youngblood Court found that the plaintiffs' interest in disclosure outweighed law enforcement's interest in secrecy:

"First, the public has an interest in
assuring just and accurate adjudication of
disputes. Overindulgence in governmental
privileges might weaken public confidence
in the ability of the judicial system to do
justice where government is the defendant.

Second, the public has an interest in
preventing government malfeasance. Exposure
of past wrongdoings might inhibit future
abuses by government employees. [Citations
omitted.]" Youngblood, at p. 348.

In Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D.Cal. 1987), the Court suggested that protective orders could be used to protect whatever interests the police departments may have in keeping evidence of its policies and tactics away from the general public. Id., at p. 666. See also, Soto v. City of Concord, 162 F.R.D. 603, 614-617 (N.D.Cal. 1995) and Hampton v. City of San Diego, 147 F.R.D. 227, 229-231 (S.D.Cal. 1993).

Now, this only makes Exhibit B more frightening, knowing that California lawyers are suggesting destruction of records I am entitled to access under federal law when I bring a federal civil rights claims.

THE LEGISLATION AT HAND

I digressed somewhat in order provide color and texture to the argument that the legislation at hand should be rejected. I presented the lengthy discussion above to remind you of the history of Pitchess, and that this severe problem of police misconduct is just as pervasive today as it was in the 1970's when this legislation was enacted.

If an attorney in every county were to compile a list of civil rights cases that either settled favorably on behalf of the plaintiff, or went to jury trial and won - and we published those findings - the public outcry would be deafening.

I ask you this: is there any evidence whatsoever that there is a widespread destruction of police officers’ reputations and careers as a result of the court’s many interpretations of the Pitchess statute over the years? I know the answer is a resounding “no.”

Then why make take the risk on more wrongful convictions to satisfy the political needs of the law enforcement unions?

I strongly urge that this committee vote against AB2377 for the reasons stated above.


Sincerely,


Mary Frances Prevost

Continue reading "CALIFORNIA STATE ASSEMBLY SHOULD NOT WEAKEN PITCHESS STATUTE STATE " »

April 10, 2008

CALIFORNA STATE ASSEMBLY MAY GUT STATUTE REVEALING POLICE MISCONDUCT; KILL THE BILL

Below is a terribly frightening piece of proposed legislation authored by California assembly person Hayashi. It is intended to gut the ability of both criminal defendants and civil litigatants from accessing police personnel files. In other words, Hayashi wants to make it hard for those harmed by the police to learn of their prior miscondcut hidden away in their personnel files.

I think that someone should do some research on Hayashi to learn if the police unins contributed to this legislator's campaign. And, if so, that should be made very public.

Below is the text of the offending bill.

BILL NUMBER: AB 2377 INTRODUCED - BILL TEXT

INTRODUCED BY Assembly Member Hayashi

FEBRUARY 21, 2008

An act to amend Section 1043 of the Evidence Code, relating to
custodial officers.

LEGISLATIVE COUNSEL'S DIGEST

AB 2377, as introduced, Hayashi. Custodial officers: personnel
records.

Existing law provides for the confidentiality of peace or
custodial officer personnel records, as specified. Existing law also
provides discovery procedures for peace or custodial officer
personnel records. Existing law, developed by the courts, requires a
defendant requesting those personnel records to present an affidavit
that sets forth a specific internally consistent factual scenario of
officer misconduct that is plausible when read in light of the
pertinent documents. Existing law, developed by the courts, also
permits courts to make determinations regarding what is plausible
based on a reasonable and realistic assessment of the facts and
allegations.

This bill would require a defendant seeking personnel records to
present an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. This bill would further provide that an
affidavit that contains a bare allegation of misconduct, or that
simply denies the elements of the charged offense, or that merely
denies the veracity of the police report, is insufficient. This bill
would require courts to determine whether good cause for the
discovery or disclosure sought has been demonstrated based on a
reasonable and realistic assessment of the facts and allegations.

Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1043 of the Evidence Code is amended to read:

1043. (a) In any case in which discovery or disclosure is sought
of peace or custodial officer personnel records or records maintained
pursuant to Section 832.5 of the Penal Code or information from
those records, the party seeking the discovery or disclosure shall
file a written motion with the appropriate court or administrative
body upon written notice to the governmental agency which has custody
*and control of the records. The written notice shall be given at the
times prescribed by subdivision (b) of Section 1005 of the Code of
Civil Procedure. Upon receipt of the notice the governmental agency
served shall immediately notify the individual whose records are
sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
peace or custodial officer whose records are sought, the governmental
agency which has custody and control of the records, and the time
and place at which the motion for discovery or disclosure shall be
heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief
that the governmental agency identified has the records or
information from the records. The affidavit shall also include
an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. An affidavit that provides a bare
allegation of misconduct, or that simply denies the elements of the
charged offense, or that merely denies the veracity of the police
report, is insufficient.
(c) The court shall determine whether
good cause has been demonstrated based on a reasonable and realistic
assessment of the facts and allegations.
(c)
(d) No hearing upon a motion for discovery or disclosure
shall be held without full compliance with the notice provisions of
this section except upon a showing by the moving party of good cause
for noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records.

April 10, 2008

PACIFIC LAW CENTER AT CENTER OF LEGAL CONTROVERSY

Pacific Law Center At Center Of Controversy

April. 10, 2008

SAN DIEGO - A local woman says she had sex with one of her brother's lawyers and claims the attorney gave her $8,000 and a BMW while her brother awaited trial.

Defendant Antoine McElroy eventually pleaded guilty to attempted murder but is now trying to get his plea deal thrown out. Mcelroy's new lawyer claims that his client's former attorneys pushed him to take the deal and did not properly represent him.

Mcelroy family paid $31,000 for legal representation during the case, but his new attorney says Pacific Law Center, which advertises heavily in the local media, did a substandard job in representing Mcelroy. Mcelroy new lawyer claims that Pacific Law Center compromised its work in part because attorney Alan Spears had an intimate relationship with Mcelroy's sister, Patrice Smalls.

Spears said Smalls' allegations are "unsubstantiated and irrelevant," and that the effort to undo the plea bargain is a "publicity stunt."

Smalls claims that the alleged relationship harmed her brother's defense and helped put him behind bars for more than 30 years.

"We went straight to the room," Smalls testified on Thursday.

"The hotel room?" she was asked.

"Uh-huh," she replied.

"Did you and Mr. Spears have a sexual encounter that evening?" she was asked.

"Yes," she told the court.

Another Pacific Law Center attorney testified that Mcelroy approved the plea bargain, which was explained in detail to him and to his family.

"At the time in court that we were working out the plea bargain, I called his family and discussed it with them from the court room, and they were appraised the whole time of what was happening," Arthur Katz testified.

For their part, prosecutors maintain that Mcelroy knew what he was doing when he accepted the plea bargain.

Continue reading "PACIFIC LAW CENTER AT CENTER OF LEGAL CONTROVERSY" »

April 6, 2008

DEFENDANT HAS 6TH AMENDMENT RIGHT TO INFORM JURY OF MINIMUM MANDATORY SENTENCE

Sixth Amendment right to an "informed jury" guarantees right to have jury told of mandatory minimums

In a 400 page opinion-law review article, the venerable Judge Weinstein of the E.D. N.Y., surveying the history and law of juries, jury trials, and the Sixth Amendment, holds that the jury should have been told of the mandatory minimums in the case under the Sixth Amendment. United States v. Polizzi, 2008 U.S. Dist. LEXIS 26900 (E.D. N.Y. April 1, 2008) (local page cites left in to help you find this part if you go to the case; this is just part V of the opinion; the wonderful discussion of the history of sentencing and informed juries is in part IV):

V. Defendant's Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted

As noted in Part II.B.4.b, supra, defendant repeatedly moved to have the jury informed of something it would not be expected to, and did not, know -- the mandatory five-year minimum prison [*368] sentence required were it to find the defendant guilty of receiving as charged. It was demonstrated in Part IV, supra, that the court's failure constituted a denial of defendant's Sixth Amendment jury rights. Such an instruction is different from one inviting the jury to nullify. It accords fully with Sixth Amendment rights to a jury which understands the effects and implications of its decision. See Part IV.A, supra.

That juries do have the power to refuse to convict or to convict of a lesser offense has been fully established. See Part IV, supra; see, e.g., Neder v. United States, 527 U.S. 1, 33 (1999) (Scalia, J., concurring in part and dissenting in part) ("A court cannot, no matter how clear the defendant's culpability, direct a guilty verdict."); United States v. Pabon-Cruz, 391 F.3d 86, 95 (2d Cir. 2004) ("The power of juries to 'nullify' or exercise a power of lenity is just that--a power" (quoting United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997))); Thomas, 116 F.3d at 615 (characterizing right of juries to deliver unreviewable, general verdicts -- thereby allowing jury nullification to occur, albeit infrequently -- as a form of "jury lenity"). Where nullification [*369] is suspected, courts may not "intrude upon 'the sanctity of the jury's deliberations' because of their 'strong policy against probing into [a jury verdict's] logic or reasoning.'" United States v. Mahaffy, 499 F. Supp. 2d 291, 296 (E.D.N.Y. 2007) (quoting United States v. Zane, 495 F.2d 683, 690 (2d Cir. 1974)).

Continue reading "DEFENDANT HAS 6TH AMENDMENT RIGHT TO INFORM JURY OF MINIMUM MANDATORY SENTENCE" »

April 6, 2008

ORANGE COUNTY SHERIFF CALLS FBI TO PROBE JAILHOUSE CIVIL RIGHTS VIOLATIONS

04/06/2008

Jack Anderson wants probe into civil-rights violations, promises punishment. Supervisor says report shows 'clear case of human failure.'

SANTA ANA - Acting Sheriff Jack Anderson has called in the FBI to investigate any possible civil rights violations within the county's jails -- a day after a grand jury report found a disgraceful jail system that is run by bullying inmates, lazy deputies and a command staff who tried to cover it all up.

Anderson told the Orange County Board of Supervisors today that he contacted the FBI on Monday, inviting the U.S. Justice Department in to "partner" with him on an internal investigation that has already been launched by an independent watchdog.

Six sheriff's personnel have already been placed on paid leave and more will be identified as he digests the grand jury report, Anderson said, who added that those people may ultimately face criminal charges.

"I will take it as far as I can take it," Anderson said. "Termination will not be enough for me."

Asked how many people will be reprimanded, Anderson replied, "It will be more than it took to carry Chamberlain's casket."

Supervisors, who were briefed on the report by District Attorney Tony Rackauckas on Monday, appeared shaken by the panel's findings. They wondered aloud why video cameras weren't already in place to watch deputies and why there wasn't more supervision of the staff.

"This is not a good day for Orange County," said Supervisor John Moorlach. "We have another clear case of human failure. "The complacency's gotta stop. Good cops can't protect bad cops. The code of silence has gotta stop."

The thousands of pages of documents, created during months of investigation by the grand jury, found that deputies at Theo Lacy Jail often slept in the guard station, played video games, watched television and used inmate "shot callers" to punish other inmates.

The panel was investigating the beating death of Chamberlain, who inmates mistakenly believed to be a child molester – he was being held on charges of possessing child pornography -- and then singled out by other inmates for a brutal attack. The report found that deputies didn't perform routine patrols of the jail barracks and instead focused on watching their favorite TV programs or used their cell phones to text friends.

The panel also found that two of the highest-ranking members of the former Sheriff Mike Carona's command staff lied during testimony, broke grand jury secrecy rules and even doctored a document to defend a decision. The report uncovered a culture among Carona and his staff that refused to allow the DA to investigate Chamberlain's death, with Carona telling Rackauckas, "If I don't want you in my jails, you're not coming in my jails."

Anderson again publically outlined the changes the department has made since the October 2006 murder, which include:

*Removal of all TVs in the guard stations. "They never should have been there," Anderson said.
*Banning the use of PDAs, or personal digital assistants, like cell phones or text messengers.
*Special housing for inmates charged with some sex crimes.
*Spending a proposed $8.8 million on adding video cameras throughout the jails -- $4.4 million has already been allocated.
*Removing privacy walls in the F Barracks of Theo Lacy, where Chamberlain was killed.
*Changing the daily log to make it less vulnerable to "unauthorized editing" by deputies who don't make required checks.
*Rotating personnel among the county's three jails.
*Studying the use of correction officers in the jails, instead of deputies, to reduce costs and increase staffing.

Supervisor Bill Campbell said he was shocked that there weren't video cameras in place to monitor deputies, which would also be a way to ensure their safety, he said.

"It's surprising to me that we didn't have that in place already," Campbell said.

Campbell asked Anderson would the new cameras would be put in place, to which Anderson replied, "It's not going to be quick enough."

The county's strict contracting system has slowed the purchase of new cameras, Anderson said, even as they are trying to fast track cameras for the F Barracks.

Supervisor Chris Norby told Anderson that new policies aren't needed in the jail, but rather the enforcing of already existing policies that call for supervisor of inmates and deputies.

"This is a wake-up call to do that," Norby said.

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