February 25, 2010

CALIFORNIA CRIMINAL DEFENSE: COURT OF APPEALS RULES FAVORABLY ON DEFENSE MELENDEZ-DIAZ/CRAWFORD CASE

A multitude of cases were granted review last year on the Melendez-Diaz/Crawford issue. It's a hot topic. Actually, it's pretty straight forward. But it's a hot topic because it stops the prosecution from trying to convict defendant's without their ability to confront the evidence against them. And try and try and try again they will. This one stoped them in their tracks.

This California Court of Appeal ruled against the defense last year prior to Melendez-Diaz. Melendez-Diaz came out and the California Supreme Court granted
review and transferred this case back to the Court of Appeal in light of Melendez-Diaz. Take that!

Melendez-Diaz barred use of affidavits to establish that an item was contraband, as violative of Crawford and confrontation. This Court of Appeal correctly notes that the fact that evidence qualifies under a firmly-rooted hearsay exception doesn't make it an exception to confrontation. The report here that the item was meth was prepared in contemplation of its use in litigation. The Court of Appeal also rejects the AG's argument that the report here was OK because it was made contemporaneous with the test.

Finally, relying on Geier (41 Cal.App.4th 555), the AG argues that confrontation was satisfied by having the chemist's supervisor testify. Nope, says the Court of Appeal, the defense didn't get to confront the guy who DID the test. Ridiculuous. Reversed.

People v. Benitez; 2010 DJ DAR 2788; DJ, 2/25/10; C/A 4th, Div. 3

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February 24, 2010

CRIMINAL DEFENSE LAWYER CHARLES MADDOX CHALLENGES INCUMBENT JUDGE IN ORANGE COUNTY

February 23, 2010

DEFENSE LAWYER CHALLENGES O.C. JUDGE

By Don J. DeBenedictis

Daily Journal Staff Writer

SANTA ANA - The lone Orange County Superior Court judge being challenged for re-election in June faces a lawyer who is best known for devising a short-lived, surreptitious route to snaring a misdemeanor dismissal, and who is miffed about the judge's reaction to his maneuver.

DUI defense lawyer Chad R. Maddox realizes he has little chance of unseating Craig E. Robison, a well-regarded judge with impeccable law-and-order credentials as a former deputy district attorney and police detective.

"I understand the reality," Maddox said.

Robison said he doesn't really know why Maddox is challenging him and wouldn't want to say anything negative in his election campaign, anyway.

The why traces to a driving-under-the-influence case Maddox handled in 2007.

Maddox realized that if he waived his client's speedy-trial right in open court, he could file a written withdrawal of the waiver a few days later without prosecutors noticing - even though he served them with a written warning and with the waiver itself. Then, 30 days later, he demanded the case either be tried immediately or dismissed because time for a speedy trial had run out.

The judge hearing the case refused to go along and set the trial for three weeks later. Maddox got that ruling reversed by the Superior Court Appellate Department, which published its opinion. Arias v. Superior Court (People), 167 Cal.App.4th Supp. 1 (2008).

Many judges reacted by telling all lawyers who made such "general time waivers" to withdraw the waivers only in open court, when prosecutors would be present. But Robison imposed that new requirement on Maddox alone, Maddox said.

That meant, Maddox said Friday, "basically, my clients were going to be handled differently because they're being represented by me."

Robison countered that he imposed the requirement on Maddox alone because Maddox alone was using the maneuver. "If he feels singled out, it's because he singled himself out," the judge said.

Many judges and lawyers saw the maneuver as underhanded because it amounted to the defense attorney waiving time knowing he didn't really mean it. It amounted to "a fraud on the court," one judge said.

Maddox maintains the maneuver only worked because misdemeanor prosecutors don't bother to look at what's in a case file until they get to court for a hearing. That style would never work in felony or civil litigation practice, he said.

"It comes down to [prosecutors'] being lazy," Maddox said. It also requires misdemeanor defendants "to make all of their motions once a month when cases are in court."

The state's prosecutors responded with legislation. AB 250, by Assembly Member Jeff Miller, R-Mission Viejo, which took effect Jan. 1, requires all time-waiver withdrawals to be made in open court.

In its support of the bill, the California District Attorneys Association blamed cutbacks and growing workloads for prosecutors' looking at misdemeanor files only on court days. The attorney general's office called Maddox's maneuver "gamesmanship." (I find it fascinating that lazy prosecutors call it gamesmanship when defense attorneys take advantage of their sloth)

Maddox himself understands how lawyers and judges could see it that way. Even Robison, he conceded, was "trying to do something proactive to make sure cases were not dismissed unjustly."

He isn't planning to spend much on his campaign. Still, "if a miracle happens and I win that seat, it would be a blessing for all," he said.

February 24, 2010

CALIFORNIA CRIMINAL DEFENSE: MIRANDA ON THE BLINK

RIGHT TO COUNSEL DURING INTERROGATION

It's Miranda week at the U.S. Supremes, and they hand over two losses to the defense. The first one deals with the right of the defendant to have counsel DURING questioning. The Florida police here told the defendant that he had the right to counsel BEFORE questioning, and that he had the right to use any of his rights at any time.

The U.S. Supremes assure us that this made it clear to the defendant that he had the right to counsel during questioning.

Florida v. Powell; 2010 DJ DAR 2675; DJ, 2/24/10; U.S. Supreme Court

February 23, 2010

SAN DIEGO CRIMINAL DEFENSE: SAN DIEGO POLICE OFFICERS TO WEAR VIDEO CAMERAS

The San Diego Police Department and the San Jose Police Department are initiating a pilot program where officers will wear video cameras while on duty. Click HERE for story.

Interesting. The Oceanside PD tried that some years back, as did Laguna. Funny, when defense attorneys started pointing out to the DA's that the videotapes showed a dramatically difference picture than the police reports, cases started getting dismissed.

Oceanside and Laguna finally trashes the cameras. Let's see how long this will last. I suspect that in the first case I get where I ask for the video, I will be told it was on the blink....

February 23, 2010

SAN DIEGO CRIMINAL DFENSE: LAURA DUFFY NAMED UNITED STATES ATTORNEY FOR SOUTHERN DISTRICT OF CALIFORNIA

SAN DIEGO:

The prosecutor who led the team that secured the guilty plea of Francisco Javier Arellano Felix and several other members of the notorious Arellano Felix drug cartel has been selected by President Barack Obama to be the next U.S. Attorney in San Diego.

She is Laura Duffy, now the Deputy Chief of the General Crimes Section at the U.S. Attorney’s Office in San Diego and previously an Assistant U.S. Attorney in the office’s Narcotics Enforcement Section.

Duffy’s selection was announced by the White House, along with that of Wifredo Ferrer for the Southern District of Florida, Alicia Limtiaco for Guam and the Northern Mariana Islands, and John Stevens Jr. for the Eastern District of Texas.

“These distinguished men and women have shown extraordinary commitment and integrity in their pursuit of justice. I am confident they will serve the American people wisely and effectively as United States attorneys,” Obama said in a statement.

Duffy, who was nominated by Democratic California Sen. Barbara Boxer, will replace U.S. Attorney Karen Hewitt if confirmed by the Senate. With 120 prosecutors, the U.S. Attorney’s office in San Diego is the
nation’s third-busiest, handling all federal litigation, including the prosecution of federal crimes, in San Diego and Imperial counties.

Duffy graduated from Iowa State University in 1988 and the Creighton University School of Law in 1993.

From 1993 to 1997, she worked for the criminal division of the Justice Department, first as a trial attorney for the money laundering section, then as a trial attorney for the narcotics and dangerous drug section. She joined the U.S. Attorney’s Office for the Southern District of California, the formal name of the San Diego office, in 1997.

February 17, 2010

MARICOPA SHERIFF FACES MORE CIVIL RIGHTS CHARGES

PHOENIX (CN) - Two more civil rights complaints against self-proclaimed "America's Toughest Sheriff" Joe Arpaio and his officers cite a "culture of hatred" of Hispanics, and racial profiling. One man claims a Maricopa County deputy ran him over and left him pinned under the police car in front of the man's own home, while assaulting and arresting family members who tried to help him.

The other complaint claims that sheriff's officers in black ski masks beat a Hispanic woman on a "crime sweep" of a business that had a contract with the county, then threw her in jail for two months without allowing her medical assistance for her injured teeth.

In that case, Celia Alvarez says she was jailed for two months without proper medical care after sheriff's made the "crime sweep" on Handyman Maintenance.

In that raid, on Feb. 11, 2009, Alvarez says two deputies "lifted her off her feet, and slammed her face into a wall," injuring her teeth, jaw, face and head.

After Alvarez was interrogated and placed "in a line with many other HMI employees, one of the deputies, completely unprovoked, violently struck" her on the arm with the metal part of a clipboard, she says. She was taken to county jail, where she was subjected to an "invasive and embarrassing strip search" in front of many deputies.

She sought medical attention, but was told that "her first opportunity for medical care would not occur for at least two weeks." She says she was jailed for more than two months without proper medical attention - for so long that "doctors have been unable to repair her condition even through surgery."

Alvarez seeks damages for illegal search and seizure, and assault. She is represented in Federal Court by Steven E. Harrison and N. Patrick Hall with Wallin Harrison of Gilbert, Ariz.
In the other complaint, Armando Nido says he was driving home when Maricopa County Sheriff's Deputy James Carey tried to pull him over for a broken tail light. Carey "illuminated his lights but did not run his siren," says Nido, a U.S. citizen.

Nido says he "slowly and cautiously proceeded to drive his vehicle home rather than immediately pull over" because he feared "the pattern and practice that had been implemented and exhibited by" the Maricopa County Sheriff's Office toward people of Hispanic descent.
Nido says he parked in front of his home and got out to speak to Carey, who "accelerated his own vehicle around the driver's side" of Nido's car, running him over.

Nido says he was trapped under the police car, unable to move, and Carey refused to help him or let his family help him. Nido says he "remained trapped under the vehicle until fire and paramedics arrived," with multiple broken bones and burns, all the while suffering verbal abuse from Carey.

After Carey ran him over, Nido says, his mother ran outside and pleaded to help her son, but Carey "struck her in the chest, knocked her to the ground, handcuffed her and arrested her."

Seeing the abuse, Nido's brother, Raul, began taking photos, and Carey and other deputies "tackled him to the ground, took the camera, handcuffed him, lifted him by his cuffed arms, knocked him to the ground again, re-lifted him by his cuffed arms, and arrested him," according to the complaint.

When a second brother, Rene Nido, sought to help his brother pinned under the car, Carey Tasered him, "handcuffed him, lifted him by his cuffed arms, and arrested him."
All charges filed against the Nidos were dropped, according to the Superior Court complaint. The Nidos say sheriff's detectives recommended that the County Attorney's Office prosecute Carey for aggravated assault, but charges were never filed.

The Nidos say there is a "culture of hatred" in Arpaio's department "to individuals who appear to be of Hispanic descent."

The Nidos seek damages for assault and battery, negligence, false imprisonment and civil rights violations. They are represented by Robert Ramirez with Miranda and Ramirez.

February 17, 2010

MARICOPA SHERIFF FACES MORE CIVIL RIGHTS CHARGES

PHOENIX (CN) - Two more civil rights complaints against self-proclaimed "America's Toughest Sheriff" Joe Arpaio and his officers cite a "culture of hatred" of Hispanics, and racial profiling. One man claims a Maricopa County deputy ran him over and left him pinned under the police car in front of the man's own home, while assaulting and arresting family members who tried to help him.

The other complaint claims that sheriff's officers in black ski masks beat a Hispanic woman on a "crime sweep" of a business that had a contract with the county, then threw her in jail for two months without allowing her medical assistance for her injured teeth.

In that case, Celia Alvarez says she was jailed for two months without proper medical care after sheriff's made the "crime sweep" on Handyman Maintenance.

In that raid, on Feb. 11, 2009, Alvarez says two deputies "lifted her off her feet, and slammed her face into a wall," injuring her teeth, jaw, face and head.

After Alvarez was interrogated and placed "in a line with many other HMI employees, one of the deputies, completely unprovoked, violently struck" her on the arm with the metal part of a clipboard, she says. She was taken to county jail, where she was subjected to an "invasive and embarrassing strip search" in front of many deputies.

She sought medical attention, but was told that "her first opportunity for medical care would not occur for at least two weeks." She says she was jailed for more than two months without proper medical attention - for so long that "doctors have been unable to repair her condition even through surgery."

Alvarez seeks damages for illegal search and seizure, and assault. She is represented in Federal Court by Steven E. Harrison and N. Patrick Hall with Wallin Harrison of Gilbert, Ariz.
In the other complaint, Armando Nido says he was driving home when Maricopa County Sheriff's Deputy James Carey tried to pull him over for a broken tail light. Carey "illuminated his lights but did not run his siren," says Nido, a U.S. citizen.

Nido says he "slowly and cautiously proceeded to drive his vehicle home rather than immediately pull over" because he feared "the pattern and practice that had been implemented and exhibited by" the Maricopa County Sheriff's Office toward people of Hispanic descent.
Nido says he parked in front of his home and got out to speak to Carey, who "accelerated his own vehicle around the driver's side" of Nido's car, running him over.

Nido says he was trapped under the police car, unable to move, and Carey refused to help him or let his family help him. Nido says he "remained trapped under the vehicle until fire and paramedics arrived," with multiple broken bones and burns, all the while suffering verbal abuse from Carey.

After Carey ran him over, Nido says, his mother ran outside and pleaded to help her son, but Carey "struck her in the chest, knocked her to the ground, handcuffed her and arrested her."

Seeing the abuse, Nido's brother, Raul, began taking photos, and Carey and other deputies "tackled him to the ground, took the camera, handcuffed him, lifted him by his cuffed arms, knocked him to the ground again, re-lifted him by his cuffed arms, and arrested him," according to the complaint.

When a second brother, Rene Nido, sought to help his brother pinned under the car, Carey Tasered him, "handcuffed him, lifted him by his cuffed arms, and arrested him."
All charges filed against the Nidos were dropped, according to the Superior Court complaint. The Nidos say sheriff's detectives recommended that the County Attorney's Office prosecute Carey for aggravated assault, but charges were never filed.

The Nidos say there is a "culture of hatred" in Arpaio's department "to individuals who appear to be of Hispanic descent."

The Nidos seek damages for assault and battery, negligence, false imprisonment and civil rights violations. They are represented by Robert Ramirez with Miranda and Ramirez.

February 12, 2010

CALIFORNIA DUI: CHP TO INVESTIGATE RIVERSIDE POLICE CHIEF'S EARLY MORNING DUI CRASH

Riverside Police Chief Russell Leach crashed a city-owned vehicle about 3 a.m. Monday, going off the road and hitting a light post and a fire hydrant, authorities said Tuesday.

"Chief Leach was driving on Central Avenue and allowed his car to drift off the road," said California Highway Patrol Inland Division Chief Jeff Talbot. "I understand that two of the tires were down to the rim."

The CHP is investigating the incident, but Talbot said it was too early in the investigation to determine the cause of the accident or whether alcohol was involved.

"As far as any impairment, I have no idea. We will have to rely on statements from the Riverside police officers who were at the scene. There was no arrest," he said. "We will have the vehicle in here tomorrow, and I have some officers going out to the scene."

Riverside's city manager put out a brief statement Tuesday saying Leach had been involved in a single-car, non-injury crash. Leach has been placed on medical leave, the statement said.

Police spokeswoman Sgt. Jaybee Brennan would not comment except to say there had been an accident. She referred all questions to City Atty. Greg Priamos, who did not return calls for comment.

Talbot said Riverside Police Deputy Chief John De La Rosa contacted him Tuesday and asked the CHP to investigate the accident.

"He thought it would be in the best interests of everyone for us to do it," Talbot said. "They wanted us to come in because we are completely unbiased."

The CHP often handles such investigations when they involve other law enforcement agencies.

Leach recently helped lead a massive assault on the notorious East Side Riva gang in Riverside. And last Wednesday he warned against drinking and driving on Super Bowl Sunday.

"Designating a sober driver should be on the top of everyone's Super Bowl party list," he said. "It's just one of several easy steps to help save lives."

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February 12, 2010

SAN DIEGO POLICE MISCONDUCT: COURT OF APPEAL ORDERS "BRADY" DISCOVERY FROM POLICE PERSONNEL FILE IN LYING COP CASE

BRADY DUTY BUT NOT PITCHESS DUTY

The defendant was convicted of murder, and a key witness testified against him. The police detective told the defense that this guy wasn't a paid informant. Some years later, the defense stumbled across information which showed that the guy was in fact a paid informant. The defense now files a habeas petition.

The defense seeks Brady (373 U.S. 83) discovery of complaints in the detective's personnel file that the detective claimed that informants weren't paid when in fact they were.

bad%20cop.jpg

This is an interesting case because the C/A finds no basis for Pitchess (11 C3d
531) discovery but does order review of the detective's personnel file on Brady grounds, correctly finding that prior complaints about the detective lying about informants being paid would impeach the detective's testimony at any habeas hearing. This is the first possible published case where the court finds a discovery duty under Brady but not
Pitchess.

Eulloqui v. Superior Court; 2010 DJ DAR 1930; DJ, 2/7/10; C/A 2nd,
Div. 1