April 7, 2010

CALIFORNIA CRIMINAL LAW: DUE DILIGENCE FOR OUT-OF-STATE WITNESSES

The victim here testified at the prelim. But she was out of state when trial was scheduled. The DA used the Uniform Act to Secure the Attendance of Witnesses to get the victim to California, but didni' have the victim arrested when she was uncooperative.

The Cal. Supremes rule that the DA doesn't have to have the victim arrested to establish the
required due diligence. The court goes on and on about how this poor victim would have been arrested. Right, ALL bench warrants for witnesses who fail to appear result in arrest.

People v. Cogswell; 2010 DJ DAR 4897; DJ, 4/2/10; Cal. Supremes

April 7, 2010

SAN FRANCISCO CRIME LAB EXPERT TO TAKE THE FIFTH AMENDMENT; CRIME LAB SCANDAL THICKENS

The retired criminalist at the center of San Francisco's drug lab controversy said Tuesday through her attorney that she will refuse to testify in a drunken driving case, asserting her right against self-incrimination.

Deborah Madden's intention to invoke the Fifth Amendment is the latest fallout from a growing scandal that has forced local prosecutors to drop hundreds of narcotics cases.

The attorney for the alleged drunken driver had subpoenaed Madden - who is suspected of skimming drugs from the lab - because she had tested equipment used to measure suspects' intoxication.

Madden's attorney, Paul DeMeester, said the subpoena represented nothing more than an opportunistic bid to tarnish his client and the drunken driving case. Madden, he said, will refuse to testify about her time at the lab in that case or any other while she is under investigation.

The dustup over the misdemeanor drunken driving case underscores that Madden, 60, performed all sorts of tasks at the San Francisco crime lab in addition to testing drug evidence. It may also be a glimpse at things to come as prosecutors and defense attorneys try to contain, and exploit, the fallout.

Madden now faces unrelated cocaine possession charges filed in San Mateo County, but has not been formally charged with stealing drugs from the San Francisco lab.

Meanwhile, the drug lab has been shut since March 9 amid the Madden allegations and an independent audit that found the lab was sacrificing quality for quantity in testing drugs.

Madden's history with the lab - detailed in 2,700 pages of documents that have not been disclosed - has rapidly become a target of legal challenges for lawyers in both federal and local cases. Prosecutors have dropped 250 cases before trial and are expected to drop hundreds more.

In one federal case against Dennis Cyrus Jr. - convicted last year and awaiting sentencing on 16 felonies, including three murders, in a federal drug racketeering case - the defense sought to reopen the issues surrounding Madden and the crime lab and asked to further delay sentencing.

The defense hopes to challenge the drug charges that are the basis of many of the federal offenses against Cyrus.

Prosecutors on Tuesday offered to allow only a two-month delay, but stressed in a court filing that the "the recent issues surrounding the SFPD Drug Laboratory raised by the defense cast no doubt on any of Cyrus's multiple federal convictions."

Prosecutors noted that Madden played only a limited role in the case against Cyrus, who faces three life-without-parole prison terms.

In the drunken driving case set to go to trial, Madden's role was limited to testing equipment. The officer who arrested the defendant, not Madden, ran the repeated tests that showed the defendant was legally drunk.

In what may be the first in a string of court appearances, Madden was summoned to San Francisco court on Tuesday to be questioned about her role in the testing. But her lawyer told Superior Court Judge Newton Lam that she will assert her Fifth Amendment right.

"She would never have been subpoenaed if it were not for the current brouhaha," DeMeester said after court. "If anyone wants to question her about the lab, sorry, the Fifth Amendment protects against that."

The prosecutor, Maria Shih, told the judge she has no intention of calling Madden to the stand in the case against Robert Thomas, 41, who is held on his second drunken driving offense in 10 years.

Deputy Public Defender Maria Lopez told Lam she called Madden to answer for her role in testing instruments that implicated her client. Lopez added that she has a separate motion to seek 2,700 pages of documents related to the lab and Madden. Prosecutors have not responded to that request.

Lopez said Madden may be able to refuse to respond to some questions, but may be ordered by the judge to answer others.

Today, Madden will likely be called back to court to formally assert her refusal to testify.

April 7, 2010

CALIFORNIA CRIMINAL DEFENSE: REASONABLE CAUSE FOR SCHOOL SEARCHES

In T.L.O. (469 US 325), the US Supremes said that school officials could conduct a search if it was reasonable, even if there was no probable cause. Here, the police called the school to tell them that this minor had illegal pills on him. The vice principal searched the minor with the police present. The Court of Appeal that T.L.O. controls here, although you
might think that the school was merely acting as the agent of the police.

In re K.S.; 2010 DJ DAR 4459; DJ, 3/26/10; C/A 1st, Div. 5

April 5, 2010

CALIFORNIA CRIMINAL LAW: DUTY TO ADVISE CLIENTS OF IMMIGRATION CONSEQUENCES

The US Supremes here rule that the failure to advise a criminal defendant in state court of the federal immigration consequences of his plea is ineffective assistance of counsel. They remand for a hearing on prejudice. They make it clear that a generic advisement that the plea will have some unspecified consequences isnit enough.

Your duty is to advise the defendnate specific consequences of the plea. This duty only involves consequences that are clear, succinct and straightforward. As Alito points out, this just means a whole jurisprudence on what is clear and what is in doubt. We thought that this case was only going to say that you have a duty not to misadvise the client, but nope, you've got to give accurate advice on the consequences. It is not clear how this affects Kim (45 Cal.4th 1078) and Villa (45 Cal.4th 1063), the cases from the Cal. Supremes limiting challenges to immigration misadvisements; those cases require custody, real or constructive, and reject IAC as a ground for such a challenge.

Whatever this means, it surely means that weive all got to understand immigration consequences, and explain them to our clients. At least the consequences that are clear.

Padilla v. Kentucky; 2010 DJ DAR 4858; DJ, 4/1/10; US Supremes