California Criminal Lawyer Blog

by Teri Sforza, Register staff writer

Perhaps the question is not if the county will settle this lawsuit, but when, and for how much…?

It’s not going well when a federal judge writes, “a reasonable jury could conclude that the defendant officers used excessive force against Ms. White …. Ms. White was not under suspicion of having committed any crime. Nor were the officers present to investigate Ms. White. Indeed, the officers were standing on Ms. White’s property without having obtained a warrant ….”

OUCH

We told you recently about the case involving an Old English sheep dog, a woman named Toy (who suffered a nasty black eye), and an Orange County Sheriff’s deputy who was arrested for DUI after two crashes within a half-hour.

Mission Viejo paid $24,000 to make this suit go away – but it is still grinding against former Deputy Allan James Waters’ bosses, the County of Orange and the Sheriff’s Department, racking up legal bills.

(Waters, by the way, is no longer a deputy. And shortly after he turned in his uniform, he was arrested for DUI and on suspicion of being a drug dealer who traded fake drugs and cash in exchange for real prescription drugs. The District Attorney’s Office said he tried to pull a fast one by using a white powder instead of cocaine. Oops.)

The county has settled one other case involving Deputy Waters for $32,000.

DOG GONE

On July 7, 2007, Toy Whitewas home in Mission Viejo with her husband Steve and their three Old English sheep dogs. A woman entered the property without permission, the suit says - and one of the dogs bit her.

That evening, there was a knock at the Whites’ door. They opened it, and there stood four OC sheriff’s deputies and a Mission Viejo animal control officer. They entered the house without the Whites’ consent – and without a warrant - demanding that the dog be surrendered for a 10-day quarantine.

Mission Viejo law allows for in-home quarantine when a bite happens during trespassing on private property. The Whites said they wanted to do that instead.

And here, according to the suit filed in federal court, is where things got dicey. The deputies became threatening and said, “Just give up the dog,” the suit says.

Toy White asked the officers to leave her house; they would continue the discussion outside. As she placed her hand on the door handle, “she was violently grabbed and thrown face first onto the tile floor, without warning or provocation, by (deputies) Macias and Waters,” the suit says. She was then cuffed tightly, arrested, and hauled off to jail.

The dog, meanwhile, was taken into custody as well. The dog was returned the following day, when the city realized its error; but White was arrested for battery on an officer and resisting arrest. The District Attorney’s office did not proceed, however, determining that the officers had no authority to enter the house, and no legal right to remove the dog, the suit says.

Deputies named, along with Waters, are J. Macias, S. Crivelli and T. Jansen, along with animal control officer H. Holmes. They maintain that White was threatening, advanced toward the deputies and resisted arrest.

SAYS THE JUDGE

The suit is in federal court, before Judge David O. Carter. He made the comments we’re quoting in an order granting in part, and denying in part, the county’s motion for summary judgment (a determination made by the court without a full trial).

Writes Carter: “…it remains a disputed issue of material fact as to whether Ms. White made any contact with the police officers. Even if Ms. White made such contact, the officers would only be entitled to use the force necessary in the circumstances, which was minimal since the officers concede that Ms. White was in the office of closing the front door to Plaintiffs’ residence and thereby imposing a physical barrier between herself and the officers.

“To the extent the officers now claim it was necessary to physically restrain Ms. White in order to effectively combat the harm alleged to have been caused by the Plaintiffs’ dog, the Court is unconvinced. It is for a jury to determine whether Ms. White’s restraint was a reasonable response to the threat that a dog inside Plaintiffs’ home posed a public safety risk. But the mere fact that Ms. White resisted the officers’ attempts to enter her residence without a warrant is far from a legitimate basis for the officers’ actions on July 7, 2007.”

The Whites’ attorney, Mary Frances Prevost, is understandably encouraged. She doesn’t completely understand why the county doesn’t cut its losses here, but postulates that it’s the way the system is set up. Lawyers make more money when cases go to trial, she says. Lawyers make less money when cases settle.

[california civil rights attorney, san diego civil rights attorney, orange county civil rights attorney, riverside civil rights attorney, imperial county civil rights attorney, san francisco civil rights attorney, ventura vicil rights attorney, santa barbara civil rights attorney]

Continue reading "CALIFORNIA CIVIL RIGHTS ATTORNEY - JUDGE SAYS: ORANGE COUNTY SHERIFF DEPUTIES MAY HAVE USED EXCESSIVE FORCE" »

I have been posting on this issue for a long time. And it's been too long since the County of Orange decided not to settle this horrible case.

Instead, the County of Orange is protecting a dirty cop who crashed in a DUI accident, beat another person and settled the case, sold "bunk" (fake drugs) to get money, and beat a 5'2" cosmetics representative to the ground in her own home.

Well, when the firm of Sullivan & Ballog, who are defending the rogue cops in this case, tried to get the case kicked out of court, the judge said "No!"

Here's the article:

http://taxdollars.ocregister.com/2010/07/12/officers-used-excessive-force-ruling-suggests/60459/

On December 27, 2005, Ron Capizzi filed a federal civil rights lawsuit against the County of Orange and a bunch of rogue Orange County deputy sheriffs.

After three grueling years of all out litigation, including the taking of every deposition possible at the cost of tens of thousands of dollars in litigations costs, the case finally settled on the eve of trial for $38,000 on December 15, 2008.

Three years of litigation. Tens of thousands of dollars in litigation costs. Why didn't this case settle sooner?

The answer is easy. Counties and cities hire outside counsel to represent them in such cases. It is not valuable to a private civil law firm to settle a case early. The interest of the law firm is to bill the county for the largest amount possible. Settling the case early is a conflict. The best interest of the county is generally not the best interest of the law firm.

What happened in the Capizzi case is typical of outside law firms billing the taxpayers tens of thousands of dollars in costs and attorney fees for cases that should be handled quickly and settled immediately. I suspect, and will soon find out, that the Santa Ana law firm of Sullivan & Ballog billed more than 100,000 in costs and fees to the County of Orange over those three years. It's public record.

And what did the county get out of it? A big bill. The county and it's cops got thrown under the bus. After all that time, they finally gave money to the Plaintiff. But they gave much, much more money to the attorney who defended him. The cops didn't win. The County didn't win. The plaintiff and his attorney didn't win. But Santa Ana law firm Sullivan & Ballog won big.

Now, it's happening again. The same Santa Ana lawfirm is billing, billing, billing on the case of Toy White v. County of Orange. (A separate law firm also just settled a different case by a different lawfirm against Deputy Allan Waters, one of the cops in the White case on the even of trial. Click HERE for the story. We'll be getting those costs and fees, too).

You will remember that Toy White is the 5'1" cosmetics rep who was brutally beaten to the ground when the dogcatcher and a band of four - count 'em FOUR - heavily armed Orange County deputy sheriff's burst into her house to take her dog that had been involved in a minor bite. They didn't have the right. They had no warrant. There was no legal cause to bust into her house and slam her to the floor, other than what they made up in their reports to justifies their actions. See HERE for story in the Orange County Register.

The City of Mission Viejo, who employed the dogcatcher, settled the case. But it's not amazing that the C ounty refuses to take resposibility for it's rogue bunch of brutal cops.

Now, the same firm that ripped off the County of Orange, the Orange County Sheriff's Department and the cops in the Capizzi case to the tune of more than $100,000 in litigation costs and attorney fees, is refusing to made any good faith settlement offers in the Toy White case. Is this another Capizzi case? Uh, we think so.

Same lead attorney - Al Ballog. Same law firm - Sullivan & Ballog.

I am preparing a California Public Records Act request to various cities and counties to get the exact costs of litigation and attorney fees on a series of cases, like Capizzi and White.

What you will see - because I've obtained the litigation cost bills and attorney fees billed to public entities in the past - is a pattern and practice of out-of-control billing by outside firms that will make you more ill than when you first heard about the $1,500 toilet seat on Airforce I.

Continue reading "WHAT COST TO DEFEND DIRTY COPS? ORANGE COUNTY TAXPAYERS ARE GETTING RIPPED OFF. " »

May 12, 2010:

There is more and more evidence coming out that the University of San Diego only drug tested it's African American athletes, and left the white athletes along.

A lawsuit, claiming racial profiling and racial discrimination, has been filed on behalf of former USD point guard Trumaine Jackson stemming out of two events in which he was wrongfully accused of a crime. Click HERE for story and more links.

But it seems that the harrassment of African American students at USD is more pervasive and systematic than originally thought.

Does USD have a policy of only drug testing its African American athletes? What say you?

Continue reading "CALIFORNIA CIVIL RIGHTS LAWYER: DOES USD DRUG TEST ONLY BLACK ATHLETES?" »

In 2008, University of San Diego point guard Trumaine Johnson was at the top of his game. He led the USD Torero's basketball team to the NCAA playoffs under new coach Bill Grier.

But Johnson's tenure at USD was marked with significant instances of racial discrimination. On March 9, 2010, Johnson filed suit against USD, Coach Grier, and the San Diego Police Department (and others) for racial profiing/racial discrimination based on two instances where Johnson was wrongfully accused of crimes. After the second instance, in which Johnson was tacked, kneed in the back, pepper sprayed and arrested for a crime he did not commit and a crime the prosecutors declined to prosecute, he was let go from the Toreros.

For the San Diego City Beat articles, click HERE.

For the San Diego Union Tribune article, click HERE:

FOUR YEAR SUSPENSION FOR PROSECUTOR UPHELD.

A former Santa Clara County deputy district attorney abused his office and violated the due process rights of several criminal defendants, a State Bar Court review panel ruled last month, and should therefore lose his law license for four years.

Finding that BENJAMIN THOMAS FIELD [#168197] “disregarded prosecutorial accountability in favor of winning cases,” the three-judge panel upheld the recommendation of hearing Judge Pat McElroy and also urged that Field be given five years of probation.

The state Supreme Court must rule on the recommendation before it takes effect.

Field, 45, a career prosecutor and one-time rising star in the DA’s office, originally was charged with 25 counts of misconduct in four cases he prosecuted. The bar court dismissed several charges as duplicative.

“Although our system of administering justice is adversarial in nature and prosecutors must be zealous advocates in prosecuting their cases, it cannot be at the cost of justice,” wrote Judge Catherine Purcell, who was joined in the decision by Judges JoAnn Remke and Judith Epstein.

“Field lost sight of this goal,” Purcell continued, “ … and in doing so, he disregarded the foundation from which any prosecutor’s authority flows — ‘The first, best and most effective shield against injustice for an individual accused … must be found … in the integrity of the prosecutor.’”

The judges found that Field’s misconduct began shortly after his 1993 admission to the bar and spanned 10 years. The allegations stemmed from four cases and charged:

Field obtained a dental examination of a minor accused of sexual assault in violation of a court order. He was attempting to try the youth, who claimed to be 13, as an adult. A juvenile court judge suppressed the evidence obtained in the examination.
In a murder case, Field intentionally withheld a defendant’s statement favorable to co-defendants. As a result, the judge dismissed a 25-year gun enhancement against one of the co-defendants.
He made an improper closing argument in a sexually violent predator (SVP) case, which an appellate court described as “deceptive and reprehensible.” The court reversed a judgment committing the man as an SVP.
He intentionally withheld a witness’ statement that was favorable to the defense in a 2003 habeas corpus proceeding involving a sexual assault. The judge found that he committed a discovery violation.
In that matter, the review panel found that Field’s misconduct escalated over time and constituted “a calculated scheme to hide evidence favorable to the defense.”

Two men who were convicted of sexual assault had filed petitions for writ of habeas corpus and provided a declaration by a witness who claimed the 15-year-old victim had made false accusations because she missed curfew.

Field’s investigator found and interviewed the witness but did not notify the defense. In addition, he instructed his investigator to prepare a misleading declaration and filed it with the court, filed a statement with the court implying he did not know the witness’ whereabouts, and then waited five months before disclosing the interview, only after opposing counsel learned of the interview and had filed a motion alleging prosecutorial misconduct.

Finally, the court concluded, Field urged the court to proceed with the habeas hearing without the witness.

In the same case, Field obtained five search warrants despite the judge’s doubts about his tactics. Indeed, when Field asked the judge what to do if he needed a warrant in an emergency, the judge testified, “I looked him right in the eye and I said, ‘Ben, just don’t do it.’” Five days later, Field obtained a search warrant in another state without notifying the habeas judge.

The review panel found the Field committed several acts of moral turpitude, and did not obey a court order or follow the law. Field admitted to poor judgment and viewing his discovery obligations too narrowly, and self-reported the finding of prosecutorial misconduct to the bar.

Throughout the trial before Judge McElroy, which drew widespread interest among Field’s colleagues, he defended his behavior. The review department rejected his assertions.

Although the misconduct could have resulted in disbarment, the court found extensive mitigation, including Field’s cooperation with the bar’s investigation, an impressive record of pro bono service and “an extraordinary demonstration of good character.” In particular, it expressly noted the testimony of former Santa Clara District Attorney George Kennedy, who lauded Field’s “extraordinary professional skills and good character” and said he considers Field an honest person who is not intentionally corrupt.

Field left the DA’s office and is now chief of staff with Working Partnerships USA, a San Jose company that addresses the needs of working families in Silicon Valley.

The California District Attorneys Association (CDAA) filed an amicus brief on his behalf warning that several of the grounds for discipline involved questions of law that have not been settled. “Attorneys should be disciplined for conduct that violates clearly established law, or conduct so outrageous that its illegality is obvious,” the amicus stated, “but should not be disciplined for conduct where the law is unsettled.”

Field’s attorney, Allen Ruby, did not return a phone call for comment, nor did W. Scott Thorpe, CDAA chief executive officer.

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.

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.

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

A New York Jets fan was arrested by four San Diego Police Officers Sunday in what appeared to be an unprovoked attack by the cops. The Jets fan was arrested, handcuffed and escorted out of Qualcomm stadium amidst cries from Chargers fan, "He didn't do anything."

Chargers fans - losing - coming to the aid of a loud, gloating Jets fan? Yep. This appears to be another instance of police abuse in San Diego.

Check out the tape.:
http://www.youtube.com/watch?v=wJqd_5fC7ZI&feature=player_embedded

Secret tapes shared with defense lawyers
By Michael BurgeUnion-Tribune Staff Writer
2:00 a.m. October 23, 2009

OCEANSIDE — The District Attorney's Office is sharing with defense attorneys secret recordings of suspects' police interviews so they can weigh whether their clients' cases were compromised.

District Attorney spokesman Paul Levikow said yesterday that prosecutors have identified 37 cases in which Oceanside police Officer Damon Smith recorded interviews with suspects but didn't disclose their existence to prosecutors or defense lawyers.

Levikow said the recordings were made between April 2003 and May 2006, and between November 2008 and May 2009, when they came to light.

“The recordings have been or are being made available to the defense attorneys in those cases,” Levikow said. “They can decide how they can proceed.” He said it was unclear why there was a three-year gap between the recordings.

Bill Trainor, an assistant supervisor for the county Public Defender in North County, said he hadn't heard the tapes were being shared. “Neither (North County branch Supervisor) Larry Beyersdorf nor myself have been notified in either an official or unofficial capacity,” Trainor said. “I'm disquieted by this information.”

Trainor said he recently spoke with Summer Stephan, operations chief for the District Attorney's North County branch, “and she said there's an investigation in the downtown DA's office” into Smith's activities.”

Levikow said he had no comment on whether such an investigation was under way.
Other defense attorneys contacted said they had not yet heard from the district attorney whether cases of theirs were affected.

A spokesman for Oceanside police declined to say whether Smith was disciplined. Sgt. Kelan Poorman said such information is prevented from disclosure by the Peace Officer's Bill of Rights.

A prosecutor manufacturers evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?

Believe it or not, it's still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren't in dispute.

In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.

To read the article in Reason online, click HERE.

Tichinin v. City of Morgan Hill, No. H031019

In plaintiff's 42 U.S.C. section 1983 suit against a city for adopting a resolution condemning him for hiring a private investigator to conduct surveillance of the city manager, trial court's grant of city's anti-SLAPP motion is reversed as plaintiff's 1983 action is based on conduct that qualifies for protection under the anti-SLAPP statute and plaintiff made a prima facie showing of success on the merits where his evidence would support findings that:

1) he was engaged in conduct protected by the First Amendment rights to petition and right of free speech;

2) the city took adverse action in response to his conduct with the intent to retaliate against him and deter that conduct; and 3) the city's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct.

Continue reading "SAN DIEGO CIVIL RIGHTS LAWYER: PLAINTIFF WINS SLAPP MOTION ATTACK" »

Ex-Miami DEA chief indicted in Allen Stanford scandal
By MICHAEL SALLAH AND ROB BARRY

The former chief of the U.S. Drug Enforcement Administration's Miami office who led the agency's cases against infamous Panama strongman Manuel Noriega and Medellín cartel kingpin Fabio Ochoa was indicted by a federal grand jury Thursday for ordering the shredding of records belonging to disgraced banker Allen Stanford.
Tom Raffanello, who left the DEA five years ago to become Stanford's local security chief, was charged with ordering workers to destroy thousands of documents just days after government agents shut down the banking empire in a massive fraud case.

Prosecutors say the records -- including secret background reports on employees and potential investors -- were hauled away from the company's security bunker in Fort Lauderdale after a federal judge ordered that no company paperwork be destroyed.

Supreme Confrontation: Impact of the Court’s lab report decision
Defenders hail ruling, prosecutors say drug offenders will go free
By Kimberly Atkins and David E. Frank
Staff writers
Published: June 26, 2009

WASHINGTON - The Supreme Court ruling requiring criminal lab report analysts to be available at trial for cross-examination was hailed by defense attorneys who say it will help protect against wrongful convictions.

But prosecutors say that the decision in Melendez-Diaz v. Massachusetts will tax their already strapped resources, and ultimately lead to more cases against alleged drug offenders being dropped altogether.

“Because of this ruling and the practical consequences of requiring chemists to testify in all of these trials, there are going to be cases called in courtrooms that end up getting dismissed, and that’s frustrating,” said Massachusetts Attorney General Martha Coakley, who argued the case and urged the Court to allow the reports to be admitted on their own.

Instead, in a 5-4 ruling, Justice Antonin Scalia wrote that forensic reports, commonly used in the prosecution of drug and other offenses, are subject to the Confrontation Clause, meaning that the technicians who prepare them must be available at trial to be cross-examined by the defense.

Scalia wrote that such reports fall within the “core class of testimonial statements” that are subject to the Confrontation Clause under the Court’s rulings in the 2004 case Crawford v. Washington and the 2006 case Davis v. Washington.

“In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment,” Scalia wrote. “Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.”

Justice Anthony Kennedy penned a strong dissent joined by three other justices in the closely-split ruling.

Kennedy said that the majority ignored nearly a century of criminal jurisprudence where such reports were allowed in most of the nation’s courts as a matter of course.

“This rule has been established for at least 90 years,” Kennedy wrote. “It extends across at least 35 states and six federal courts of appeals. Yet the court undoes it based on two recent opinions that say nothing about forensic analysts.”

Good news for defendants
Defense attorneys said the right to cross-examine lab report analysts is crucial, and noted that the opinion itself states that “serious deficiencies have been found in the forensic evidence used at criminal trials” and that cross-examination will “weed out not only the fraudulent analyst, but the incompetent one as well.”

“The Supreme Court rejected the notion that forensic science is always neutral and based on solid science,” said Peter Neufeld, co-director of the Innocence Project in New York.

“The Court said our criminal justice system can’t rely blindly on forensic analysts’ reports because they may distort results to favor the prosecution.”

Defense attorney groups and Scalia noted that the need to protect against inaccurate forensic reports was supported by a report earlier this year from the National Academy of Sciences, which said that most crime labs are administered by law enforcement agencies. The academy has also asked Congress to create a new agency to set and enforce uniform standards for forensic analysts to follow in preparing reports for court.

Jeffrey T. Green, a partner in Sidley Austin’s Washington office, who wrote an amicus brief on behalf of the National Association of Criminal Defense Lawyers, said the ruling will not bring the parade of horribles prosecutors claim.

“At the end of the day, we will have a better system of justice and rules” because of Melendez-Diaz, said Green.

He also said that the rules for admitting evidence are no different in other kinds of cases. “In traffic cases, the prosecutor can’t just introduce [evidence] of the police radar,” Green said. “The officer who made the stop has to show up.”

However, Coakley said that the low numbers of crime lab technicians and tight budgets make drug prosecutions a very different matter.

“These chemists who work in the labs and produce the certificates are overburdened as it is,” she said. “Now as a result of this ruling [they] are going to have to take time out of their day to travel around the state and sit around for hours or days in individual courthouses waiting to see if the case gets called. That’s simply not practical."

BLOGGER'S NOTE: Prosecutors actually made the argument here that to require lab analysts to testify - so that people accused of crimes by the government actually get a fair chance to test the evidence - would be too much of a burdenon the labs and prosecutors. Boo hoo. Follow the rules, boys. If you want to prosecute, you'd better be able to provide the evidence for a thorough cross examination. Well done, Supremes.

Continue reading "UNITED STATES SUPREME COURT REQUIRES LAB ANALYSTS TO TESTIFY IN CRIMINAL CASES-A MAJOR VICTORY FOR THE DEFENSE" »

In San Diego, we have had a prosecutor who intentionally and wilfully withheld evidence from defense attorneys that one of the San Diego Sheriff's Department crime lab analysts had testified falsely numerous times. Not only did he not tell defense attorneys about this information, he continued to allow his prosecutors to call that lying witness to the stand and let her lie again. Now that prosecutor is a judge. His name is Michael Smyth. Click HERE, for the story. All at tempts to have him respond to the proof of such allegations has been ignored, and the Office of the City Attorney has declined to rectify the wrongs that occurred.

n San Diego, San Bernardino and Riverside, BioTox lab analyst Aaron Layton lied falsified ther esults of tests, lied about conducting confirmatory tests, failed a polygrraph, and now thousands of his cases are being scrutinized. Under a federal g rant, the San Diego Police Department is tasked with investigating problem areas with BioTox and attempting to resolve them. However, the San Diego Police Department has declined to follow this mandatory federal requirement. Click HERE to see article.

Now, a jury has awarded a measly $5 million to a man who spent 17 years in a federal prison after a lab analyst testified falsely in his case. See below for story. It is time the public understands that power corrupts, that prosecutions witnesses lie, and that innocent people are put in prison every day.

JURY AWARDS RODRIGUEZ $5 MILLION

June 25, 2009, 10:03PM

A federal jury on Thursday awarded $5 million to a Houston man who spent 17 years in prison for a kidnapping and rape he did not commit, finding the city should pay for its “deliberate indifference” to problems at the crime lab whose false evidence secured the conviction.

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

“Ain’t no amount of money is going to even my scale,” Rodriguez said after hearing the verdict. “I lost my dad and my girls have been through hell. I am grateful, but no money could replace what I lost.”

A jury of five women and three men deliberated for about two days after hearing testimony from former Mayor Lee P. Brown, who was police chief in 1987, James Bolding, a crime lab manager who testified at Rodriguez’s trial and from Rodriguez himself.

Continue reading "CIVIL RIGHTS LAW: JURY AWARDS $5 MILLION TO MAN WHO SPENT 17 YEARS IN PRISON AFTER CRIME LAB WITNESS TESTIFIED FALSELY" »

A Texas jury is presently deliberating how much money to give an innocent man who spent 17 year in jail because the crime lab withheld evidence that excluded him as the perpetrator.

See http://www.chron.com/disp/story.mpl/metropolitan/6494429.html

A guy walks into a bar in Ramona...By Greg Moran
June 4, 2009, 6:19 p.m.

...and after a few minutes, a dozen different kinds of cross-eyed ugly breaks out. Allegedly.

That's the gist of a rather hair-raising complaint filed in federal court this week by Allen Baker of Ramona and James Playford. They sued the county, the sheriff's department and five deputies for using excessive force, assault and civil rights violations all stemming from an incident at Molly Malone's bar last July. Baker said he had seen deputies at the bar several times a week, fraternizing with women and sometimes handcuffing them and placing them in the back of the squad car. For fun. Apparently. Photos were taken and one of the young women even posted it on her MySpace page, according to the complaint, and captioned it "Bong loads in a cop car."

Well, Baker approached two members of the local constabulary, deputies Colby Hodge and Jeffrey Guthrie, and asked if they were there to pick up girls. They told him to shut up or he would be arrested, which triggered a First Amendment defense kind of response from Baker ("Plaintiff Baker asked Hodge and Guthrie if freedom of speech is illegal" the suit dryly recounts.) Baker says he was put under arrest, there in the bar, and then the suit contends things went from bad to very much worse very quickly.
The suit says he was hit with flashlights, tasered, kicked, beaten and put in a choke hold until he was unconscious. At one point he contends he lost control of his bowels. Taken to jail he was charged with resisting arrest and being drunk in public. But at a preliminary hearing last September Judge Louis Hanoian dismissed one of the resisting charges and reduced a similar charge to a misdemeanor. Eventually Baker pleaded guilty to a single misdemeanor of disturbing the peace.

The incident got pretty good play on local television, partly because of the photos. A video of some of the incident is posted on YouTube. The person who took the video, Playford, contends in the suit that when he showed up at court for a hearing in Baker's case he was harassed by other deputies and was so intimidated he said he would not testify for Baker. The suit alleges a conspiracy among the deputies and faults the county for not investigating the matter.

It's not a pretty picture described by attorney Mary Prevost in the lawsuit, but these police misconduct cases are no walk in the park. There's a way to go here, but there is also lots of intriguing material. We're working on setting up a link to the suit, and are awaiting the response from the county.

Continue reading "SAN DIEGO MAN SUES RAMONA SHERIFF's DEPUTIES FOR BRUTAL ASSAULT AND BATTERY" »

Well, it's another day of misconduct in San Diego.

In December, I filed a federal Civil Rights case against a cop who has had to pay out hefty judgments in the past. Right after I filed a police misconduct motion in a criminal trial, the prosecutor filed a resisting arrest charge against my client just days before the statute of limitations was about to run.

What did they charge? They charged resisting arrest. Problem is, my client is a paraplegic and couldn't resist arrest anayway. It was pure, unadulterated retaliation.

So, what's new? Some woman who wants to divorce her husband gets a bunch of PI's to tail him. Then an SDPD sergeant called one of San Diego's DUI cops to tail the husband. Cop stops husband, and he seems to be fine. He blows a .10, but he has diabetes (and if you know anything about ketosis or acedosis, you know that these compounds in diabetics register like alcohol on these machines, skewing the results). So no charges are filed.

Oh, now wait a minute! That is, until the man who was hunted by the cops on the taxpayer dollar decided to file a claim against the City and sue. Lo and behold, the City Attorney files a DUI charge against the man who the cops hunted, just days after he sends them notice he is going to sue them!

Here it is. Oh, and City Attorney Jonathan Lapin, a misdemeanor prosecutor who will never be more than a misdemeanor prosecutor, scoffs at the medical testimony.

You might remember me posting that Lapin tried to quash a subpeoan of a former prosecutor who had information about a dirty cop I was investigating.

ITS PAYBACK TIME FOR PROSECUTORS WHO BREAK THE LAW. SAN FRANCISCO CITIZENS WILL PAY FOR PROSECUTORIAL MISCONDUCT.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/03/BATB17VOV1.DTL

Francisco officials have tentatively agreed to pay $4.5 million to a man who spent nearly 14 years in prison before a judge reversed his murder conviction, finding that city authorities had withheld evidence his attorneys said could have cleared him.

The payout to John "J.J." Tennison, 37, would be the largest settlement ever in San Francisco of a lawsuit related to police conduct, records show. It will go first to the Police Commission and then the Board of Supervisors for approval.

Tennison was freed in 2003 after a federal judge overturned his conviction for the August 1989 killing of 18-year-old Roderick "Cooley" Shannon. He had been serving a prison term of 25 years to life.

Another judge freed Tennison's co-defendant, Antoine Goff, who was serving 27 years to life. A Superior Court judge subsequently declared both men "factually innocent." They then sued in federal court, saying the city had violated their civil rights.

The city attorney's office reached a proposed settlement with Tennison last month, court documents show. Goff's suit is still pending and is scheduled to go to trial later this year.

Although the documents do not give the proposed sum in Tennison's settlement, sources familiar with the matter told The Chronicle that it was $4.5 million. The sources spoke on condition of anonymity because the agreement has not been formally approved.

Elliot Peters, one of Tennison's attorneys, would not discuss the details of any agreement. But he said, "John is going to be compensated for his 14 years in custody - he deserves it."

The city attorney and the lawyer for the two retired police investigators who arrested Tennison when he was 17 have denied that the city or police did anything wrong. Matt Dorsey, spokesman for City Attorney Dennis Herrera, declined to comment on any settlement.

Attorneys for Tennison and Goff have long argued that prosecutors and the two police investigators - Earl Sanders, later the chief of police, and Napoleon Hendrix - kept possibly exculpatory evidence from the defense at the time of trial and afterward.

Tennison's team said the evidence included a post-trial confession of another man and the earlier statement by a woman who indicated that the man may have been involved in Shannon's killing.

The courts found that other evidence the defense says San Francisco authorities never provided - including the existence of a $2,500 reward fund in the case - could have helped Tennison's attorneys challenge the credibility of the only eyewitnesses to the shooting, two girls ages 11 and 14.

Jim Quadra, a private attorney retained by the city to represent Hendrix and Sanders, declined to discuss the settlement but stressed that his clients had acted properly.

"They deny vehemently that they did anything wrong," Quadra said.

Judge found case weak
In freeing Tennison, U.S. District Judge Claudia Wilken concluded not only that authorities had withheld key evidence from the defense, but also that the prosecution's case was weak to begin with.

"No physical evidence was presented at trial tying Tennison to Shannon's shooting," she said. "The prosecution's entire case was dependent upon the testimony of ... two young girls whose eyewitness identifications of Tennison were questionable."

Wilken has served as the judge in Tennison's and Goff's lawsuits as well. In the civil case, she rejected some of the same claims that she had cited in releasing Tennison and left only three issues in dispute.

One was the issue of the existence of the "secret" $2,500 reward fund. Defense attorneys said they could have used its existence to challenge witnesses' credibility.

Quadra said police had given a memo mentioning the reward fund to prosecutor George Butterworth, an assertion disputed by Tennison's attorney. "Butterworth did not know about the secret memo," Peters said.

In any event, Quadra said, no money was paid out.

Late confession

The second issue involved the circumstances surrounding the post-trial, taped confession of Lovinsky Ricard. Butterworth admitted the existence of the tape during a hearing on the motion by Tennison's defense for a new trial in May 1991. He said he had just gotten the tape the day before.

Quadra said former inspectors Sanders and Hendrix had never known about the confession, which Ricard made to another investigator, or about the tape's existence. Tennison's attorneys argued that Sanders and Hendrix had known about the tape for seven months but withheld it from prosecutors.

Ricard ultimately asserted his Fifth Amendment right against self-incrimination and refused to answer questions in the civil case.

The third issue concerned the account provided by the woman who had earlier told Sanders and Hendrix that Ricard might have been involved.

Tennison's attorneys said they had not known about the statement by Chante Smith until years after the trial. Butterworth suggested he had not fully understood the account of the interview he got from police, but that he had still given it to the defense.

Wilken ruled that a jury should sort out the dispute.

Continue reading "CALIFORNIA CRIMINAL DEFENSE: SAN FRANCISCO MAY PAY 4.5 MILLION TO WRONGFULLY CONVICTED MAN" »

OCEANSIDE — Some convicts could get new trials because an Oceanside police officer withheld some taped interviews in cases dating to 2001, it was reported Tuesday.

Officer Damon Smith, who disclosed that he had some recordings in his locker that were not entered into evidence as part of a domestic violence case in April, apparently failed to turn over some interviews with suspects and witnesses ever since he was hired eight years ago, the North County Times reported.

"We are gathering information so that we may complete a legal analysis of the issues and take appropriate action," Paul Levikow of the District Attorney's Office told the Times.

In criminal proceedings, all evidence must be made available over to both sides.

"These are highly significant tapes to be left out of the criminal justice process – and eight years is mind-boggling," San Diego County Public Defender Steve Carroll said.

Prosecutors are reviewing the tapes and plan to turn them over to their defense attorneys, who could argue for new trials.

The defense attorney in the domestic violence case said that Smith may have kept the tapes as backup in the event that someone filed a complaint against him. The officer, who was a homicide detective for a while, was involved in the investigation of the shooting death of Oceanside police Officer Dan Bessant, but there was no evidence he failed to turn over recordings in that case.

Still, the tapes prompted a delay in sentencing gang member Meki Gaono in Bessant's 2006 slaying. The sentencing, which had been set for this week, was put off until June 4.

Smith was unavailable for comment on Monday. It was unclear what discipline he might face.