July 30, 2008

PERMISSIBLE SCOPE OF CHARACTER EVIDENCE IN REBUTTAL EVIDENCE IN PENALTY

This case is extremely long, with more prosecutorial misconduct (shocking!), judicial limitations on defense evidence, and juror misconduct than in any cases we have seen for a long, long while.

Let's focus, however, on the permissible scope of character evidence by the DA rebutting your character evidence. The Supreme Court says that if you present overall good character evidence in penalty, the DA can rebut using evidence of similar scope.

But they restate Rodriguez (42 Cal.3d 730, 792, fn. 24); the scope of rebuttal must
be specific and must relate directly to a particular incident or character trait the defendent offers.

People v. Loker; 2008 DJ DAR 11540; DJ, 7/28/08; Cal. Supremes

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July 29, 2008

DEATH PENALTY REVERSED WHEN JUROR WAS WRONGFULLY KICKED OFF JURY

In this California death penalty case, the California Supreme Court affirm the guilty verdict in this death appeal, but did reverse the penalty verdict.

The trial judge kicked off the holdout juror, the only African-American on the jury. Under Cleveland (25 Cal.4th 466), a juror can be excused only on a showing of a demonstrable reality that the juror was refusing to deliberate or prejudged the case or
wouldn't follow the instructions.

The claims relied on by the judge here fell far short of the required showing. They also reaffirm the rule (see, Tealer, 48 Cal.App.3d 598) that a defendant can testify to only one aspect of a case and can't then be cross-examined on another. In this case, the defendant wanted to testify about the Evidence Code 1108 prior rape claim but not be crossed on the pending murder.

People v. Wilson; 2008 DJ DAR 11507; DJ, 7/29/08; Cal. Supremes

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July 25, 2008

DISMISSALS FOR VIOLATION OF SPEEDY TRIAL BEFORE THE END OF THE LAST DAY

DISMISSALS FOR VIOLATION OF SPEEDY TRIAL BEFORE THE END OF THE LAST DAY

On the last day for trial in these misdemeanor cases, there just wasn't any court to send them to, so the judge dismissed them. The DA appealed. The Appellate Division affirms the dismissal, rejecting a slew of DA nonsense.

They say that the lack of courtrooms isn't good cause. Of note is their affirming a dismissal before the end of the court day, an issue we've always lost before.

People v. Cole; http://www.courtinfo.ca.gov/opinions; (7/25/08; Riverside App. Div.)

July 24, 2008

POLICE BEAT CUFFED SUSPECT-VIOLATE CIVIL RIGHTS

The Plaintiff's claim that he was hit in the face with handcuffs while already handcuffed stated a claim for excessive force. Torres-Caraballo v. Municipality of Yauco, 2008 U.S. Dist. LEXIS 56166 (D. P.R. July 23, 2008)

Here, the Plaintiff did not even oppose the police officer's motion to dismiss, and the court still granted it!

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July 16, 2008

CIVIL RIGHTS PLAINTIFF CAN FILE SUIT WHILE CRIMINAL CASE IS PENDING

In this precedent-setting California Civil Rights case, the Plaintiff's claim arose with his arrest under Wallace v. Kato and was not barred by Heck v. Humphrey. Wallace applies even though all the facts occurred before it was decided. (The court also discusses the tension between Wallace and Heck.) Kamar v. Krolczyk, 2008 U.S. Dist. LEXIS 55975 (E.D. Cal. July 16, 2008):

The court finds that the recent Supreme Court case of Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L. Ed. 2d 973 (2007), has effectively overruled Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000)].

In Wallace, the plaintiff contended that any civil rights action that would impugn his anticipated future conviction could not be brought until that conviction occurs and is set aside. Wallace, 127 S.Ct. at 1098. The Supreme Court refused to embrace what the Supreme Court entitled a "bizarre extension of Heck." Id.

In Wallace, the Supreme Court overruled those circuits that had applied the Heck to bar Section 1983 claims when criminal charges were only pending. The "Heck rule for deferred accrual is called into play only when there exists 'a conviction or sentence that has not been ... invalidated,' that is to say, an 'outstanding criminal judgment."' Id. at 1097-98 (quoting Heck, 512 U.S. at 486-87).

To avoid a concurrent Section 1983 action and criminal action, the Supreme Court held that if a plaintiff files a false arrest claim or any other claim related to rulings that will likely be made in a pending or anticipated criminal trial, "it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended." Wallace, 127 S.Ct. at 1098.

The Supreme Court directly addressed the collision that would occur in some civil rights cases between the statute of limitations, the Heck bar, and a potential Heck bar. The Supreme Court recognized that some civil rights actions accrue "before the setting aside of-indeed, even before the existence of-the related criminal conviction." Wallace, 127 S.Ct. at 1098. This fact pattern "raises the question whether, assuming that the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists." Id. The Supreme Court declined to adopt such a federal tolling rule. ...


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July 13, 2008

SAN DIEGO CRIMINAL DEFENSE LAWYER WINS ASSAULT CASE WHERE SCARY PERPATRATOR THREW "GLITTER" AT WOUND UP COP

It never, never ceases to amaze me how much money the San Diego District Attorney and City Attorney's offices will spend on stupid cases caused by crazy cops. Here's one you'll love. Wonder how much this cost the taxpayers?

Here are the Players:

DCA: Hayley Hernandez
Judge: Roger Krauel
Officers: Mapson (wound up dude), Sgt Dishno and Druihet.

The case involved an event called "Reclaim the Streets," where 100-200 people walked around the Gaslamp area banging drums and such. A guy threw some glitter on a cop (Graham) who was videoing the march. Graham tried to arrest him (probably because the glitter made him look gay), but the mad glitterer slipped away. The cops waited till the end of the evening and sent in a team to arrest the glitterer for battery on an officer (i.e., "unlawful glittering"). A group of his friends sort of surrounded him as the cops closed in ready to arrest the assaulter.

A skirmish unfolded, though the guy didn't resist. Client was thrown to the ground and arrested for allegedly grabbing and pulling on a cop from behind for up to 20-30 seconds, requiring two officers to unpeel her (including the use of a carotid restraint hold). Three officers testified; client and the gliterrer and another friend said she was linked arm in arm with her friend but was pulled down by the cops without resisting.

Jury came back "not guilty" in 20 minutes. Watch out for Officer Mapson. He's one wound up officer.

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July 3, 2008

SAN DIEGO CHARGER STEVE FOLEY SETTLES LAWSUIT AGAINST CORONADO ROOKIE POLICE OFFICER AARON MANSKER-MANSKER WILL NOT BE CHARGED (like, we didn't know THAT would happen!)

By Dana Littlefield
UNION-TRIBUNE STAFF WRITER

July 3, 2008

SAN DIEGO – A court hearing that had been scheduled for Monday on a request to keep sealed a settlement between former Chargers linebacker Steve Foley and the Coronado police officer who shot him has been canceled.

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Foley and the city of Coronado had requested the motion hearing Wednesday in San Diego Superior Court after reaching a conditional settlement in the civil case. The terms of the agreement were confidential, the lawyers said.

A clerk in Judge Richard E. L. Strauss's courtroom confirmed Thursday that the hearing had been taken off calendar.

The Coronado City Council is expected to meet in closed session Monday to consider approving the settlement.

On the day former Chargers linebacker Steve Foley was to testify about his career-ending encounter with an off-duty police officer in 2006, he was summoned to the judge's chambers instead.

Visibly upset, pacing the courtroom and glaring at Coronado Officer Aaron Mansker, Foley was finally coaxed by his mother yesterday to follow the attorneys behind the bench.

Moments later, a conditional settlement was announced in the two-week civil trial, and the jurors were sent home.

It was over.

Both Foley and Mansker left the courtroom without making a statement.

Terms of the settlement were not immediately disclosed. Foley and the city of Coronado requested a court hearing Monday to keep the agreement sealed.

Foley sued Mansker and the city after he was shot in the left knee and hip the morning of Sept. 3, 2006, during a confrontation with Mansker near Foley's Poway home. Foley's injuries ended his career as a professional athlete.

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July 2, 2008

THE PROSECUTION CAN PRESENT EVIDENCE THAT A DEFENSE LAB EXAMINED EVIDENCE

THE PROSECUTION HAS THE RIGHT TO PRESENT EVIDENCE THAT A DEFENSE LAB
EXAMINED EVIDENCE-RAISE CONSTITUTIONAL ISSUES TO DEFEAT THIS HORROR

This case was reported in this blog a few months ago. Here, the DA was permitted to repeatedly present evidence from the police criminalists that crucial evidence was released to a defense lab.

The California Supreme Court rejected a defense work product argument. They then rejected the 6th Amendment challenge by saying that their work product ruling disposed of all those
challenges.

A great many criminal prominent criminal defense lawyers petitioned the court to delete or modify this discussion.

The Supremes modified their opinion with a phrase. It looks like what they are saying is that
since no constitutional issues were raised, the only constitutional issues presented are those at issue inherent in the work product issue, and so rejection of the work product
issue is also a rejection of any constitutional issue presented by the
work product issue.

If that sounds like gibberish, you got it. If this actually comes up, raise challenges based on the 5th and 6th Amendments, the attorney-client privilege, work product, and relevancy, as well as EC 352.

People v. Zamudio; 2008 DJ DAR 8604; DJ, 6/13/08; Cal. Supremes

July 2, 2008

COPS DROP DRUGS ON INNOCENT SUSPECTS-LOS ANGELES COPS AT IT AGAIN

From the Los Angeles Times

Los Angeles judge drops Hollywood drug case after video contradicts police testimony
In echoes of Rampart scandal, defense attorney says officers planted cocaine on man accused of being a gang member. On surveillance tape produced at trial, one officer tells another: 'Be creative in your writing.'

By Jack Leonard
Los Angeles Times Staff Writer

July 1, 2008

A Los Angeles judge abruptly ended a trial and exonerated a man of possessing cocaine Monday after a courtroom confrontation in which a defense attorney produced a surprise video of his client's arrest that sharply contradicted the testimony of two police officers.

Superior Court Judge Monica Bachner dismissed charges against Guillermo Alarcon Jr., a grocery store worker, after prosecutors reviewed the tape and acknowledged that it was inconsistent with the officers' sworn testimony.

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Los Angeles Police Department officials said they had launched an internal affairs investigation of the officers. Additionally, prosecutors said they would refer the matter to a division within the Los Angeles County district attorney's office that investigates police misconduct cases.

During the trial, which began Friday, the officers told jurors that they had chased Alarcon, 29, into his Hollywood apartment building last year and seen him throw away a black object. They testified that one of the officers picked up the object a few feet from where Alarcon was standing and discovered powder and crack cocaine inside.

But footage from the grainy video, which Alarcon's attorney said came from an apartment building surveillance camera, shows that it took the two officers more than 20 minutes to find the drugs. They were also aided by other officers in their search.

The quality of the tape, a copy of which was obtained by The Times, is poor and it is difficult to clearly hear what is being said. But at one point, an officer seems to make a reference to the arrest report that needed to be filled out.

"Be creative in your writing," the officer appears to tell another after the discovery.

"Oh yeah, don't worry, sin duda [no doubt]," comes the reply.

In allegations echoing misconduct from the Rampart corruption scandal of the late 1990s, Deputy Public Defender Victor Acevedo said the cocaine was not Alarcon's and described the prosecution's case as "completely trumped up."

"They have two officers who came into court and blatantly lied and planted evidence," he told Bachner on Monday.

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