January 31, 2011

FORENSIC SCIENCE REFORM IS LONG OVERDUE

Washington, DC (Jan. 25, 2011) – As more than a decade of crime lab scandals have shown, forensic evidence presented in court is, at times, often bogus – based on speculative research, inadequate quality control, and subjective interpretations. Ensuring the scientific integrity of forensic evidence is essential to preventing wrongful convictions and exonerating the innocent.

Sen. Patrick Leahy has introduced the Criminal Justice and Forensic Science Reform Act of 2011. Two years ago, the National Research Council of the National Academies in Washington, D.C., issued a landmark report, Strengthening Forensic Science in the United States: A Path Forward, which set forth a roadmap for forensic evidence reform and renewed the call for fairness in the criminal justice system. The National Association of Criminal Defense Lawyer's report, Principles and Recommendations to Strengthen Forensic Evidence and Its Presentation in the Courtroom, which supports the recommendations of the NRC Report, was approved and adopted by the association’s board of directors in February 2010.

“The great number of exonerations in the past two decades has greatly undermined the public trust in the criminal justice system,” said NACDL President Jim E. Lavine, of Houston. “Confidence that the system correctly identifies the perpetrators of criminal offenses and prevents wrongful convictions has been eroded by lab scandals around the country, and discoveries that convictions have been obtained through error, poor training, pseudoscience, and sometimes outright fraud,” Lavine said.

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January 26, 2011

CALIFORNIA EVIDENCE: WHEN IS A KNIFE NOT A DEADLY WEAPON?

Here is a really interesting case. When is a knife not a deadly weapon? One would usually answer "never", right? I mean, I once had a San Diego Deputy District Attorney argue that fruit pits were deadly weapons because the defendant tried ramming them down the victim's throat screaming, "Choke on it." A new judge listening to this novel and, frankly, weird assertion by the DA, drank the Koolaid. So, here's why this case is really a good, and reasonable, analysis...

The minor in this case used a butter knife to try to cut the victim. Not only did he fail to successfully cut the victim, the knife actually broke. The minor was found a ward for assault with a deadly weapon. (California Penal Code sec. 245(a).) This California Court of Appeal says that this knife wasn't a deadly weapon. Now, was it USED as a deadly weapon? No. As hard as the minor tried, this knife could never produce death or great bodily injury.

In re Brandon T.; 2011 DJ DAR 1321; DJ, 1/25/11; C/A 2nd, Div. 1

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January 26, 2011

CALIFORNIA CRIMINAL LAW: CAN A SINGLE ACT RESULT IN MULTIPLE ENHANCEMENTS?

Does California penal Code sec. 654 apply to enhancement? This California Court of APpeal says, "Cases sometimes ask whether section 654 applies to enhancements. However, there is not necessarily a single yes or no answer to this question. As the law now stands, section 654 may apply to some enhancements under some circumstances."

Confused yet? The California Court of Appeal notes that some cases say that 654 never applies to enhancements. The court says that Apprendi (530 U.S. 466) casts doubt on this line of cases. But of course this Calfornia Court of Appeal doesn't have to resolve that issue, and skates by, leaving us all to wonder.

But they do rule that a defendant can't get sentenced for both California Penal Code sec. 2022.5 and 12022.7 for the single act of using a firearm and thereby inflicting great bodily injury.

At least they answered that question for us.

People v. Ahmed; 2011 DJ DAR 1203; DJ, 1/25/11; C/A 4th, Div. 2

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January 25, 2011

JURORS CANNOT EXPERIMENT-CASE REVERSED

A deliberating juror in this case decided to conduct his own experiment on the way the alleged shooting occurred, using a broomstick. The juror was home at the time of the experiment.

The law specifically prohibits jurors from conducting their own experiments to evaluate evidence. Most courts have found a way to conclude that what a juror did really wasn't an experiment or that there was no prejudice.

Not this court. This California Court of Appeal concludes that this was an experiment and it did prejudice this defendant. Reversed. People v. Vigil; 2011 DJ DAR 1292; DJ, 1/25/11; C/A 3rd

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January 25, 2011

JURY MISCONDUCT ISSUE BLOWN-SWEAR IN YOUR JURORS OR LOSE

Wow. So many time we suspect that juror miscondcut exists, but we just can't prove it. Here's a sad case of actually being able to prove juror misconduct, and still losing the day.

During the jury's deliberations, one of the jurors used his iPhone to find a definition of reasonable doubt and shared that definition with the rest of the jurors. (Amazing. They get a jury instruction on this and they still need to Google it. SO much for promising to follow court instructions)

This is really obvious jury misconduct. But at the hearing on the motion for a new trial, the parties stipulated to unsworn statements of the jurors. The California Court of Appeal says that juror statements relating to jury misconduct must be sworn. They remand so a proper hearing can be conducted.

People v. Bryant; 2011 DJ DAR 1263; DJ, 1/25/11; C/A 2nd, Div. 5

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January 24, 2011

CALIFORNIA CRIMINAL LAWYER: ENTRAPMENT REQUIRES GOVERNMENTAL ACTION

There's an Internet vigilante group, Perverted Justice, which entraps (and I use that word advisedly) folks into coming to meet what the folks think are minors, to have sex.

Of course, when the perp arrives, the police are there. The defendant here sought an entrapment jury instruction. No, says this California Court of Appeal.

Perverted Justice isn't the government, so essentially nothing they do can qualify as entrapment. The only way entrapment could possibly arise is if the group was literally an agent of law enforcement, and merely having the police at the destination doesn't make them agents.

People v. Federico; 2011 DJ DAR 1199; DJ, 1/24/11; C/A 4th, Div. 2

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