August 6, 2010


Jaxon Van Derbeken, Chronicle Staff Writer
San Francisco Chronicle August 6, 2010 04:00 AM Copyright San Francisco Chronicle.
All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Friday, August 6, 2010

Mike Kepka / The Chronicle
District Attorney Kamala Harris' office accused the judge of a conflict of interest.

An independent judge Thursday found no basis to back prosecutors' claims that a San Francisco judge was biased against prosecutors she had rebuked in a key ruling in the police drug lab scandal.

Monterey County Judge Thomas Wills said there was "absolutely no evidence" to support accusations by District Attorney Kamala Harris' office that Superior Court Judge Anne-Christine Massullo had a financial interest to rule against the district attorney's office.
The case involves former lab technician Deborah Madden, who is suspected of stealing cocaine and other drugs from the police crime lab and using them. As a result, hundreds of drug cases had to be dismissed and at least 60 others were left open to immediate challenge.

In May, Massullo ripped Harris' office, saying that prosecutors at the "highest levels" kept damaging information about the lab and the reliability of Madden from defense lawyers, thus violating the defendants' rights.

In response, Harris lodged a legal challenge against Massullo, claiming she might not be able to rule fairly on issues surrounding the city's drug lab scandal in part because she is married to a defense attorney who handled at least one drug lab related case.
The opinion vindicates Massullo, who prosecutors suggested was unable to be fair because her defense attorney husband stood to profit. The husband would, among other things, get free publicity for a legal seminar he spoke at related to the lab scandal, according to the allegations.

Massullo's lawyer described the case as a "factually incomplete and misleading" end-run around Massullo's legal rebuke of prosecutors.

Wills sided with Massullo and found that she acted properly in first mentioning in court that her husband had been contacted by Madden's defense attorney. Beyond that, he said, prosecutors simply did not have any evidence to back up their claim that Massullo was biased or could not be fair.

"There is absolutely no evidence of financial gain to her husband or her," Wills noted, reviewing in detail a timeline prosecutors claimed raised questions about her impartiality.
Merely because a judge rules against prosecutors, Wills noted, "is not grounds for disqualification."

Wills also said prosecutors waited too long to lodge a challenge, given that Massullo twice chided prosecutors to act and they failed to file a challenge for at least two weeks.
Erica Derryck, spokeswoman for Harris' office, issued a statement Thursday saying that the judge "invited" the challenge "after refusing to respond to direct queries in open court about an appearance of conflict."

"This exercise was the only means of getting the clarification we now have from Judge Massullo as a result of the filing," Derryck said in a statement.

Public Defender Jeff Adachi said the independent judge's ruling showed that the allegation against Massullo "wasn't worth the paper it was written on."

"All of their arguments that the judge was biased were squarely rejected," he said. "From the very beginning, the D.A.'s argument that a judge couldn't be fair because her husband is a defense attorney smacked of sexism."

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August 6, 2010

WHAT DOES PRESUMED PREJUDICE MEAN? (Criminal Defense Lawyer Mary Prevost)

A lengthy pre-filing delay, say a year or so, triggers presumed prejudice under Serna (40 Cal.3d 239). But what does that mean? In Alvarado (60 Cal.App.4th Supp. 1), the LA Appellate Division said a long delay triggers a hearing, but doesn't
mean prejudice is presumed; you have to show actual prejudice to have that factor weigh in your favor.

The Kern Appellate Division disagrees. They hold that a long delay means that prejudice IS
presumed, and weighs in your favor when weighing whether due process has been violated. So now we have dueling appellate divisions.

Bellante v. Superior Court; no DJ cite; 2010 WL 2978066; 2010 Cal.
App. LEXIS 1264; Kern County App. Div.

Continue reading "WHAT DOES PRESUMED PREJUDICE MEAN? (Criminal Defense Lawyer Mary Prevost)" »