February 28, 2009

Florida DUI: Cops Will Be Allowed to Draw Blood at the Roadside, a Dangerous Proposition

WEST PALM BEACH, Fla. -- Drunken drivers beware: If you drink and drive, especially during the last weekend of February, the Palm Beach County Sheriff's Office and other area law enforcement will be out for blood.

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PBSO deputies plan to set up driving under the influence checkpoints. If they suspect a driver is under the influence, they'll offer an on-the-spot Breathalyzer. If drivers refuse, deputies will ask to draw blood from their arms.

"I think that's really personal and I think that if you deny a Breathalyzer and you say that you don't want that, I think that's outrageous if they take blood without your consent," driver Courtney Liddle said.

Attorney David Olson said that "would only be lawful if a warrant is issued by a judge."

That's just what deputies plan to do. They'll actually drive to a judge's home for a signature and return to the checkpoint.

Olson said drawing blood from drivers is usually done in extreme cases like homicides and fatal collisions. Olson said he's not sure a judge would actually sign a warrant.

"I admire and respect the sheriff's intention to investigate driving under the influence cases, but I am glad that they apparently are going to go to judges before they independently exercise what they believe would be a valuable tool in conducting these kinds of investigations," Olson said.

The PBSO is trying to emphasize that DUI will not be tolerated. But some drivers feel it's a bit too much.

"I think it's invasive on a personal level," driver Dave Staup said. "If you're going to deny a Breathalyzer, you should definitely be able to deny getting blood taken. It's a highly more invasive thing to do."

If drivers refuse to have their blood drawn, they will be arrested and charged with DUI.

Continue reading "Florida DUI: Cops Will Be Allowed to Draw Blood at the Roadside, a Dangerous Proposition" »

February 26, 2009

NATIONAL ACADEMY OF SCIENCES: Badly Fragmented' Forensic Science System Needs Overhaul;

National Academies Post warnings over forensic science problems. Click HERE for story.

February 26, 2009

CALIFORNIA CRIMINAL DEFENSE: DUE DILIGENCE AND ABSENT WITNESS

The California Supreme Court affirms the death penalty in this case.

Here, a DA witness testified at the first penalty phase trial. He failed to appear at a later proceeding after being subpoenaed, and was arrested on a bench warrant. The court then released him, he disappeared, and his testimony from the first penalty trial was admitted at the second.

There's this excellent Louis case (42 Cal.3d 969), saying that the failure of the police to keep track of a key witness isn't due diligence, but the Cal. Supremes distinguish
Louis. They also say that the police did act diligently to try to find
this witness after he split. A close reading of the case shows that in reality they really didn't do much, lending fuel to my already hot fire that the courts will do whatever they want to assist the prosecution.

But what the hay? I'm going to rely on this when my witness disappears and some prosecutor starts screaming. What's good for the goose is good for the gander. That's what the courts always forget when they help the prosecutors.

People v. Bunyard; 2009 DJ DAR 2539; DJ, 2/24/09; Cal. Supremes

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February 25, 2009

CALIFORNIA CRIMINAL DEFENSE: JOINDER & SEVERANCE AT TRIAL

JOINDER AND SEVERANCE

The two murders here were properly joined, as being of the same class of crimes. Even properly joinable offenses must be severed, however, on a showing of prejudice.

There's a four-factor test: (1) would the evidence be cross-admissible?; (2) are some of the charges inflammatory?; (3) is a weak case being bolstered by being joined with a strong case or another weak case?; and (4) is one charge a capital charge?

This case focuses on the cross-admissibility issue. The California Supreme Court rules that there's enough of a showing that each of the murders establishes intent to permit one murder to be used to prove intent in the other murder.

There is an interesting concurring and dissenting opinion by Kennard.

People v. Soper; 2009 DJ DAR 2335; DJ, 2/20/09; Cal. Supremes

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February 24, 2009

FEDERAL CRIMINAL LAW: MISDEMEANANT IN POSSESSION OF A GUN?

Persons convicted of "misdemeanor crime of domestic violence" are prohibited from possessing firearms. It covers misdemeanor batter when victim was in relationship specified in 18 U.S.C. section 921(a)(33)(A).

Although the domestic relationship must be established beyond a reasonable doubt in the firearms possession prosecution, it need not be a defining element of the predicate misdemeanor offense.

In other words, the underlying misdemeanor need not have been charged as a crime of domestic violence, as long as the government proves at the firearm possession trial that in fact it was.

United States v. Hayes (U.S. Sup. Ct., 2/24/09, 07-608) 09 C.D.O.S. 2199

February 24, 2009

CALIFORNIA CRIMINAL DEFENSE: IT'S OK TO IMPOSE GPS DEVICE ON JUVENILE AS A CONDITION OF PROBATION

OK TO IMPOSE GPS DEVICE ON JUVENILE AS A CONDITION OF PROBATION

The minor was found a delinquent ward of the juvenile court for receiving stolen property for the benefit of a criminal street gang and vandalism for the gang. The court said this was a camp case, but instead ordered home on probation with conditions.

One of those conditions was that the minor wear a global positioning system (GPS) device. The Court of Appeal upholds this condition. The Court that sometimes adults can have the wearing of a GPS device as a condition of probation, and if adults can be so ordered, so can juveniles. They claim that there's no invasion of privacy, because it just tells where he is,
it doesn't intrude on his actual conversations.

They do stress that this was imposed as a less harsh alternative, so maybe we can limit this to
that situation.

In re R.V.; 2009 DJ DAR 2383; DJ, 2/20/09; C/A 1st

February 24, 2009

SAN DIEGO CRIMINAL DEFENSE: TESTIMONIAL HEARSAY, THE CONFRONTATION CLAUSE, AND CASUAL REMARKS

The California Supreme Court rules that admission of a statement made by a 3-year old, two months after the crime, failed to qualify as spontaneous, finding harmless error.

But they reject the claim that this violated the Sixth Amendment's confrontation clause. They take some language from Crawford (541 U.S. 36) that testimonial hearsay, admission of which violates the Sixth Amendment, doesn't include a casual remark made to an acquaintance. They say that the US Supremes haven't defined what testimonial means.

I assume that this was written before Davis (547 US 813), where the U.S. Supremes explained that testimonial means description of a previous event, as opposed to an
ongoing emergency. Under Davis, this statement is clearly testimonial.

Facetious remark (because I'm posting this on Saturday, and I stole it from Al Menaster)

Hey, let's pretend the later case never happened, so we can take some language from an earlier case to affirm a death sentence.

People v. Gutierrez; 2009 DJ DAR 2353; DJ, 2/20/09; Cal. Supremes

Continue reading "SAN DIEGO CRIMINAL DEFENSE: TESTIMONIAL HEARSAY, THE CONFRONTATION CLAUSE, AND CASUAL REMARKS" »

February 24, 2009

JUDGE CAN ONLY GO SO FAR WHEN QUESTIONING WITNESSES

HERE'S AN OLDIE, BUT A GOODIE.

The trial court extensively cross-examined defense witnesses, repeatedly disparaged defense witnesses, and belabored points of evidence adverse to the defense. This was intervening by the court as an adversary to such an extent that it violated the rule that the trial court cannot align itself with the prosecutor.

People v. Santana (2000) 80 Cal.App.4th 1194
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February 23, 2009

CALIFORNIA CRIMINAL DEFENSE: ONE ROBBERY, HOW MANY VICTIMS?

How many counts can we come up with? One potato, two potato, three potato?

The defendants robbed a McDonald's. (OMG, why?) Two of the employees saw the robbers with guns and hid throughout the robbery. The robbers forced the manager to open the safe
and give the robbers the money, which hich had a tracking device which led the police to the defendants.

So is this three counts of robbery or only one? Of course, the Supremes say that it's three. Constructive possession, they say, yada, yada, yada. Just to show you how absurd this is, one defendant was sentenced to 116 years to life.

People v. Scott; 2009 DJ DAR 2347; DJ, 2/20/09; Cal. Supremes

February 20, 2009

FEDERAL LAW: FRAUD-HONEST SERVICES WIRE FRAUD

Honest services fraud occurs when an employee deprives his employer of its right to have its affairs conducted “free from deceit, fraud, dishonesty, conflict of interest, and self-enrichment,” and consistent with the employee’s fiduciary duties to the employer. United States v. Woodward, 149 F.3d 46, 54 (1st Cir. 1998).

In cases involving public officials, the theory relies on the idea that “a public official acts as ‘trustee for the citizens and the State… and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to them.” United States v. Silvano, 812 F.2d 754, 759 (1st Cir. 1987) (quoting United States v. Mandel, 591 F.2d 1347, 1363 (4th Cir. 1979)).

The Court agrees with defendant that when government theory is that public official accepted money in exchange for influence, an implicit quid pro quo is required. But it need not be explicit, and jury instructions here were sufficient.

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006

February 20, 2009

FEDERAL CRIMINAL DEFENSE: QUID PRO QUO REQUIREMENT FOR EXTORTION

Although government must prove existence of a quid pro quo to support conviction for Hobbs Act extortion, quid pro quo need not be explicitly stated. Here, the instructions received were sufficient.

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006

(Hannibal Lecter: If I help you, Clarice, it will be "turns" for us too. I tell you things, you tell me things. Not about this case, though. About yourself. Quid pro quo. Yes or no? [pause] Yes or no, Clarice? Poor little Catherine is waiting.
Clarice Starling: Go, doctor)

February 20, 2009

SAN DIEGO FEDERAL DEFENSE LAWYER: EVIDENCE-IMPEACHMENT BY CONTRADICTION

Impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because it contradicted by other evidence. (United States v. Castillo (9th Cir. 1999) 181 F.3d 1129, 1132.)

It is an exception to the collateral fact rule (Fed. Rules of Evid. 608(b)). The fact to be contradicted must be material, and must have arisen during the direct examination of the witness to be contradicted. District court properly limited the testimony to two Witnesses: "Allowing the defendant to call the mayor, members of the city council, judges, and other public officials to testify about extraneous events would have created a huge sideshow to what was already a trial of notoriety. None of the proffered testimony was central to the core issues of the trial, and thus it is precisely the type of evidence that the collateral fact rule is designed to exclude."

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006


February 20, 2009

CALIFORNIA FEDERAL DEFENSE LAWYER: ARSON AS A FEDERAL CRIME?

United States v. Renteria (9th Cir., 2/20/09, 07-50471) 09 C.D.O.S. 2029

A Defendant could be convicted of malciously damaging a synagogue, in violation of 18 U.S.C. section 844(i), because a gift shop and daycare center had nexus to interstate commerce.

February 16, 2009

CALIFORNIA CRIMINAL DEFENSE: IS THE SUPREME COURT ABOUT TO KILL OFF THE EXCLUSIONARY RULE?

Is the Supreme Court About to Kill Off the Exclusionary Rule?
Published: February 15, 2009. Click HERE for New York Times article.

In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.

Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.

In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

[COMMENTARY: Doesn't this warrant his recusal from any case addressing this issue?]

The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.

The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.

In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.

Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”

Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.

Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.

There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

February 13, 2009

SANTA CLARA PROSECUTOR FOUND TO HAVE ENGAGED IN EGREGIOUS MISCONDUCT WILL GET TO KEEP HIS JOB; ASKS TAXPAYERS TO PAY FOR HIS DEFENSE

MERCURY NEWS
Posted: 02/12/2009 06:18:41 PM PST

Despite a state bar finding that prosecutor Ben Field engaged in widespread misconduct (click
HERE for previous article), Santa Clara County District Attorney Dolores Carr said Thursday that she will keep her deputy on the job while he appeals a state bar judge's order that could strip him of his law license for four years.

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Carr said Thursday that she cannot comment on specifics of the judge's ruling because the case is continuing to unfold, adding only, "I absolutely respect the state bar court's authority to make its judgment in Ben Field's case." But she said that Field has a right to remain a prosecutor as he pursues his legal appeals, and "we'll assess an appropriate place for him in the office."

Click HERE for prior story on how the prosecutor's office is trying to shield this creep.

COMMENTARY: Let me guess. The taxpayers get to keep him on, pay his salary, pay for his defense. I'll bet the DA is even going to promote this goon. Can I sue him, please?

For more recent state bar actions against prosecutors, click HERE.

Continue reading "SANTA CLARA PROSECUTOR FOUND TO HAVE ENGAGED IN EGREGIOUS MISCONDUCT WILL GET TO KEEP HIS JOB; ASKS TAXPAYERS TO PAY FOR HIS DEFENSE" »

February 13, 2009

STATE BAR OPINION: PROSECUTOR SHOULD BE SUSPENDED FOR FOUR YEARS

MERCURY NEWSPosted: 02/11/2009 11:47:52 AM PST

Suggesting the harshest disciplinary punishment in recent history for a California prosecutor, a state bar judge Wednesday called for Santa Clara County Deputy District Attorney Ben Field to be stripped of his right to practice law in the state for four years because he "abused his prosecutorial power.''

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In a scathing 67-page ruling, Judge Pat McElroy described Field as an "overzealous'' prosecutor who violated a host of ethical rules in four criminal cases, ranging from disobeying judges' orders to hiding crucial evidence from defense lawyers that could help their clients. The judge's decision was based on a series of hearings held last year in which bar prosecutors charged Field with a string of misconduct in cases dating back to 1995, and she largely accepted the prosecution's depiction of the case against Field.

McElroy, however, took the extraordinary step of recommending punishment more severe than prosecutors had sought. Bar prosecutors had recommended that Field be suspended from practicing law for three years, ordinarily the stiffest penalty handed down in discipline cases short of disbarring an attorney.

"His overzealousness to convict and punish defendants who had murdered, robbed and raped obstructed his understanding of a prosecutor's special duty to promote justice and seek truth,'' the judge wrote.

Continue reading "STATE BAR OPINION: PROSECUTOR SHOULD BE SUSPENDED FOR FOUR YEARS" »

February 13, 2009

POLICE BEATING OF HOMELESS MAN PROBED

FRESNO, Calif. (Feb. 13) - Fresno's police department has launched an internal affairs investigation into a video-recorded arrest of a homeless man who was beaten by one officer while another restrained him.

The four-minute video, shot by a bystander Monday on a busy street, shows one officer standing over the man in the mud and holding his arms while the other officer delivers at least five punches to his face, some with the homeless man's hands behind his back.

Click HERE for video..

Police Chief Jerry Dyer on Wednesday called the case disturbing, but said until the investigation is complete, it won't be known whether the officers' actions were appropriate.
"It's very disturbing on the surface," Dyer said. "I've watched it several times. There are other pieces that need to be looked at. Although a moment in time is crucial, it's important to look at all aspects of the officers' contact."

The internal affairs investigation should take about 30 days, Dyer said.

The names of the officers are not being released, but Dyer said neither has been cited for previous misconduct. One has served in the department for 10 years, the other for six.
Dyer said the officer who punched Glen Beaty, 52, is now on medical leave with a broken pinky finger that will require surgery. The video shows him briefly shaking out the hand that landed the punches.

The other officer was placed on administrative duty.


February 7, 2009

CONSCIOUSNESS OF GUILT FOR FALSE STATEMENTS MADE WHILE TESTIFYING

CONSCIOUSNESS OF GUILT FOR FALSE STATEMENTS MADE WHILE TESTIFYING

Here is another dreaded jury instruction: CALCRIM 362. It states that if the defendant made false statements related to the crime, that can be used as consciousness of guilt.

Here, the DA got the instruction based on his claim that the defendant lied WHILE TESTIFYING. The Court of Appeal "doubts" that the instruction was intended to be used in this way but finds harmless error. They can't find any case where this sort of instruction was used in relation to testimony.

We can use this to resist the CALCRIM in this context. THERE IS NO LAW AUTHORIZING THIS USE OF THIS INSTRUCTION FOR THIS PURPOSE.
People v. Beyar; 2009 DJ DAR 1659; DJ, 2/5/09; C/A 2nd, Div. 4

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February 7, 2009

SAN DIEGO CRIMINAL DEFENSE: OK FOR PROSECUTORS TO COMMENT ON DEFENSE FAILURE TO RETEST EVIDENCE

Here is yet another spectacularly awful case from the California Supreme Court relating to defense experts. In Zamudio (43 Cal.4th 327), the California Supreme Court said that the DA could present evidence that an item had been provided to the defense laboratory.

In this case, the DA repeatedly asked witnesses whether the sheriff's DNA lab could have been ordered to release samples to the defense for testing. Notably, the trial judge actually sustained defense objections, noting that this raised questions about the credibility and competency of defense counsel, a point the Supremes ignore.

The Supremes say these questions weren't a violation of work product, since no "writing" from the defense was involved. They brush aside claims of attorney-client privilege (no communication from a client), Griffin (380 U.S. 609) error (OK to comment on the failure of the defense to introduce material evidence), and that the questions shifted the burden of proof to the defense.

This is really, really bad and we're going to have to develop strategies to deal with it. Of curse, we must all demand that the court pay for the retesting of evidence from the prosecution. But we need more...much more.

People v. Bennett; 2009 DJ DAR 1429; DJ, 1/30/09; Cal. Supremes

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February 6, 2009

FEDERAL EVIDENCE- RELIANCE ON CLETS FOR SENTENCING

United States v. Genaro Alvarado-Martinez (9th Cir., 2/6/09, 07-50492) 09 C.D.O.S.

CLETS database report (rap sheet) was sufficiently reliable so that trial court's use to compute sentencing level. No abuse of discretion or clear error. Due process requires that a defendant be sentenced on the basis of accurate information. See Roberts v. United States (1980) 445 U.S. 552, 556.

February 5, 2009

JURY INSTRUCTION ON THE TESTIFYING DEFENDANT FAILING TO EXPLAIN OR DENY

JURY INSTRUCTION ON THE TESTIFYING DEFENDANT FAILING TO EXPLAIN OR DENY

I have always hated this instruction because nomatter how thorough a defense attorney is in the presentation of his/her case, the court always gived this and prosecutors always use it to muddy the very clear waters.

The California Court of Appeal upholds the CALCRIM on this, 361, relying on the cases upholding the CALJIC. The Court of Appeal finds evidentiary support for giving this instruction, but besides objecting to it, point out, if you can, that your client didn't fail to explain or deny anything.

People v. Rodriguez; 2009 DJ DAR 1474; DJ, 1/30/09; C/A 2nd, Div. 4
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Continue reading "JURY INSTRUCTION ON THE TESTIFYING DEFENDANT FAILING TO EXPLAIN OR DENY" »

February 2, 2009

U.S. SUPREME COURT: MIGHT THE EXCLUSIONARY RULE BE ELIMINATED?

I'm scared. I'm very, very scared. While I have always championed personal financial sanctions on police officers who violate the Fourth Amendment rather than exclusion of evidence (seems a stronger deterrent to me), the courts have historically thought otherwise. Now, if a cop violates your Fourth Amendment rights, the evidence he subsequently learns of as a result of the illegal search or seizure is suppressed and cannot beused in court against you.

Will our chief justice, who championed such causes in the past, lead the Supremes to total expungement of Fourth Amendment remedies?

Take a look at the URL below. Maybe so.

http://www.nytimes.com/2009/01/31/washington/31scotus.html?_r=1


February 1, 2009

CALIFORNIA STATE BAR SANCTIONS THREE PROSECUTORS

WELL, IT'S ABOUT TIME.

In three disciplinary cases pending before the State Bar Court, current or former deputy district attorneys are charged with committing acts of moral turpitude and disobeying the law. The bar alleges that two of those charged withheld exculpatory evidence.

I only wish they could go to jail.

http://www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/July2008&sCatHtmlPath=cbj/2008-07_TH_04_Misconduct-charges.html&sCatHtmlTitle=Top%20HeadlinesSCONDCUT.bmp