California Criminal Lawyer Blog

Okay, this goes into the OMG category. A handcuffed arrestee was about to be tasered by a cop, and the cop pulled out the wrong weapon, and shot him dead instead! I mean, why is a cop tasering a handcuffed suspect? If you have to quiet a handcuffed suspect - and that's really, really debatable folks - why not pepper spray him? But tasering him? And shooting him dead instead. I say "Hang 'em High."

DUMB COP ACCIDENTALLY SHOOTS CUFFED SUSPECT

The accidental shooting of a handcuffed suspect is subject to a reasonableness inquiry. A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead.

Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 2008 U.S. App. LEXIS 9648 (9th Cir. May 5, 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments." Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

CALIFORNIA LEGISLATOR WITHDRAW BILLS THAT WOULD HIDE POLICE MISCONDUCT

Hayashi warrants support for 2nd Assembly term

ADMITTING one has made a mistake is a virtue in politics. Doing so reflects a willingness to learn and a degree of openness that one doesn't always find in the arena of big egos.
It's one reason we recommend that Democrats in Assembly District 18 give Mary Hayashi a chance to represent them for a second term. It's a many-splendored district, representing Hayward, San Leandro, Dublin, most of Castro Valley and Pleasanton, a part of Oakland and the unincorporated communities of Ashland, Cherryland, Sunol and San Lorenzo.

Hayashi's error came via her authorship of Assembly Bill 2377, which she says the "sheriff's association" asked her to sponsor. The bill unfortunately would make it more difficult for the public, criminal defendants and plaintiffs to obtain records of police misconduct.

It triggered a puff of protest, including a scathing analysis by San Francisco Public Defender Jeff Adachi. Hayashi consulted with Adachi, has since dropped the bill, which ran contrary to making information about public employees public, and will not resurrect it.

"I'm new (this is her first two-year term), sometimes I make mistakes," she said, noting that she and her staff do their own research on bills and that she now understands the public policy implications of AB2377.

In less than two years, Hayashi has sponsored a number of bills, has become asssistant majority whip of the Democratic Caucus and chairs the Assembly Select Committee on Community Colleges.

Although Hayashi has sponsored laws dealing with health, child abuse, family violence, solar energy, unsafe ingredients in cosmetics, and others, she is particularly active in the neglected area of mental health. She calls improving mental health care "a personal issue" stemming from the loss of a sister to suicide.

She sponsored AB509 to create a state Office of Suicide Prevention that Gov. Arnold Schwarzenegger later established by executive order. She's also authored legislation that would establish suicide-prevention hot lines; require minimum training and continuing education in suicide prevention for therapists, psychiatrists, psychologists and social workers; and require insurers to cover mental health care.

Hayashi also introduced a bill in response to an issue in Hayward that would require the California Energy Commission to obtain the approval of local governments before allowing the construction of second or third thermal power plants in a city.

Constituents and campaign donors should also know that she has used campaign funds to retire more than $25,000 of the campaign debts of her husband, Dennis Hayashi. He's sought several public offices in recent years and is currently seeking an Alameda County Superior Court seat.

Her opponent in the June 3 primary is Jason Teramoto, a Castro Valley native, who has attended Chabot and Las Positas community colleges and the University of California, Berkeley.

An earnest young man of 33, Teramoto is a former president of the California Student Association of Community Colleges and was a congressional aide to Rep. Pete Stark from 2002 to 2005.

He advocates "universal, affordable, accessible" health care, opposes privatizing state parks and prisons, supports strong public education and strict environmental standards as well as the development of "green collar" industries and jobs.

The June 3 winner faces Republican Lou Filipovich in the November election.

In a shocking development for the general public, but a not-so-shocking development to seasoned defense attorneys, San Diego District Attorney Bonnie Dumanis has dropped murder charges against Cyntha Sommer.

The only evidence used to convict Sommers was contaminated. Even the prosecution's chief expert at the trial suggested that it might be contaminated. But the dismissal of SOmmer's case came only after the defense attorney demanded retesting of the tissue samples. There was no arsenic in them. There never was.

The prosecutor trying the case, Laura Gunn, in an attempt to win a conviction at all costs, claimed Sommer's "motive" for killing her husband was to obtain the proceeds of his insurance policy. They put forth that after she obtained this policy, she puchased breast implants and partied. Murder for breast implants? That, plus contaminated "evidence" was the slim speclation the prosecutor used to convict an innocent woman.

I recently sent a letter to Dumanis outlining that I had learned the Sheriff's crime lab was involved in "switching" blood samples and attributing them to the wrong people, and keeping a lab witness on the public payroll who testifies falsely. Click HERE for article. And after that, San Diego attorney Mike Fremont caught a San Diego Police Department crime lab criminalist lying in the witness stand. A complaint to Dumanis yielded no action. Click HERE for article.

Shame on the San Diego District ttorney's Office.

By Dana Littlefield
STAFF WRITER

April 18, 2008

Cynthia Sommer, accused of fatally poisoning her Miramar Marine husband with arsenic, spent two years and four months behind bars. Yesterday, the 34-year-old mother of four walked out of the Las Colinas jail a free woman, after prosecutors dropped the murder case against her.

Prosecutors said they now have reasonable doubt that Sgt. Todd Sommer was poisoned, based on conclusions reached by a new set of toxicology experts.

San Diego Superior Court Judge John Einhorn granted the prosecutors' motion to dismiss “without prejudice,” meaning they have the option to refile charges later.

Cynthia Sommer's defense lawyer has said he plans to request a dismissal with prejudice.

District Attorney Bonnie Dumanis said at a news conference yesterday that her office acted appropriately, based on available evidence, when it charged Sommer with murder in March 2006 and tried her in January 2007. Sommer was arrested in Palm Beach County, Fla., in November 2005.

Prosecutors sought more forensic testing when defense attorneys raised questions about the evidence during and after the trial. Testing on other tissue samples from Todd Sommer revealed no arsenic.

Cynthia Sommer talked to her family on the phone yesterday after she was released from Las Colinas jail in Santee. Jacky Scott of Welcome Home Ministry was with her.
“Today justice was done,” Dumanis said. “This is how the system is supposed to work.

“As soon as we had the information that pointed to reasonable doubt, we brought this case this afternoon to get the matter dismissed,” she said, adding that prosecutors acted quickly “so that Sommer didn't spend any additional time in custody.”

Defense lawyer Allen Bloom was unconvinced.

“No one should say that this system worked,” he said. “This dismissal wasn't because of the prosecution's efforts; it was done because the defense demanded it.”

Todd Sommer, 23, died Feb. 18, 2002, after collapsing at the couple's home at the Miramar Marine Corps Air Station. Doctors first determined he died of natural causes, but tests later revealed high levels of arsenic in his liver and kidneys.

Witnesses testified during the trial that Cynthia Sommer slept with other men, partied heavily and used some of her husband's life insurance money to buy breast implants shortly after he died.

Prosecutor Laura Gunn argued that Sommer's behavior indicated she was “celebrating” rather than mourning.

On Jan. 30, 2007, a jury convicted her of first-degree murder and allegations of murder by poison and for financial gain. She faced a life sentence.

In December, a judge granted Sommer's request for a new trial, saying her former attorney, Robert Udell, made several mistakes that might have prejudiced jurors. Udell admitted he made some errors.

Bloom said jurors never should have heard about Sommer's partying and sexual behavior. He also said early tests on Todd Sommer's tissues were flawed and likely contaminated.

According to court documents, prosecutors learned in March that several of Todd Sommer's tissue samples had been stored at San Diego Naval Medical Center in Balboa Park. They were tested this month at a lab in Quebec, which found no arsenic.

Dr. Jean-Philippe Weber, the Quebec lab's former director, prepared a report stating that the previous test results were “physiologically improbable” and that contamination was possible.

Yesterday, Bloom reaffirmed his contention that Todd Sommer died of natural causes, as doctors determined initially.

“Young people and healthy people die from sudden cardiac arrest in our country every year,” Bloom said. “Todd Sommer was sadly was one of those people. I know he didn't die because of Cynthia Sommer.

Continue reading "SAN DIEGO PROSECUTOR FORCED TO DISMISS CHARGES AGAINST INNOCENT WOMAN ACCUSED OF POISONING MARINE HUSBAND-SHAME ON THE DISTRICT ATTORNEY" »

Justices Accept Question of Prosecutors as Lawyers or Managers

By LINDA GREENHOUSE
Published: April 15, 2008

WASHINGTON — The Supreme Court accepted an appeal on Monday that could help define the boundaries of prosecutorial immunity in an era when the officials who head big prosecutors’ offices function as managers as much as they act as hands-on lawyers.

Under longstanding legal doctrine, prosecutors are absolutely immune for their judgments in handling cases, even if a faulty judgment results in a wrongful conviction.

In this instance, a man wrongfully convicted of murder on the basis of false testimony by a jailhouse informant sued the top two officials of the Los Angeles County district attorney’s office on the ground that they had failed to set up a proper management system that could have flagged the problematic nature of the informant’s testimony.

In rejecting the officials’ claim of absolute prosecutorial immunity, the federal appeals court in San Francisco held that the suit was related not to the men’s role as prosecutors, but as office managers.

The officials’ Supreme Court appeal argues that this decision circumvented a rule that has shielded prosecutors from second guessing by the courts and warns that it would “encourage a flood of lawsuits” that would make it difficult for prosecutors to do their work.

The plaintiff, Thomas L. Goldstein, served 24 years in prison before the Federal District Court in Los Angeles granted his petition for a writ of habeas corpus. In 2005 he filed a civil rights suit seeking damages from John K. Van de Kamp, who at the time of his trial in 1980 was the Los Angeles district attorney, and Curt Livesay, who was Mr. Van de Kamp’s chief deputy.

The suit said that because of inadequate record keeping, the deputy prosecutors who handled the case were unaware that their star witness, a jailhouse informant, Edward Floyd Fink, not only falsely testified that Mr. Goldstein confessed to him, but also lied when he said on the stand that he was not receiving, and had never received, any benefits for testifying on behalf of the state.

In fact, Mr. Fink had been an informant for the Long Beach for years and had in turn received reductions in his prison sentence for testifying in earlier trials, as well as in Mr. Goldstein’s case.

Prosecutors are required to inform the defense of information that could serve to impeach the credibility of prosecution witnesses, and the prosecutors would have had to turn over the information on Mr. Fink to Mr. Goldstein’s lawyers, had they known about it.

Mr. Goldstein’s suit argues that under a 1972 Supreme Court decision, Giglio v. United States, a prosecutor’s office has an affirmative obligation to maintain a record-keeping system ensuring that all lawyers in the office have access to information about promises to witnesses.

Mr. Van de Kamp and Mr. Livesay argued unsuccessfully in the lower federal courts that the suit should be dismissed on the basis of absolute prosecutorial immunity. In their Supreme Court appeal, Van de Kamp v. Goldstein, No. 07-854, they argue that “the dissemination of exculpatory information to the defense” is a “core prosecutorial function,” distinct from administrative functions like “hiring procedures and compensation schedules.” The lower courts were mistaken in viewing their failure to have a proper record-keeping system as administrative rather than prosecutorial, they maintain.

Mr. Goldstein’s lawyer argues that “entering information into and retrieving information from a data-indexing system” are “transparently administrative activities” and that no “floodgates” will open, because most prosecutors’ offices, including Los Angeles, now have the systems to avoid future mistakes.

Continue reading "U.S. SUPREME COURT WILL HEAR CASE THAT COULD DESTROY PROSECUTORIAL IMMUNITY" »

LAWSUIT CHALLENGES PROSECUTORS' IMMUNITY

COMMENTARY: While the California Legislature is considering a bill to hide police misconduct -backed by powerful police unions - the federal courts are less mermerized by law enforcement. The United States Ninth Circuit Court of Appeals has opened the door to supervisor liability of prosecutors in wrongful convictions cases. Let's hope it lasts. It's time we had accountability.

To read my letter to Assemblyman Solorio opposing the police bill click HERE. For the San Francisco Chronicle's take in the police bill, click HERE.

To read the article in the release of Cynthia Sommer after her wrongful prosecution by San Diego District Attorney Bonie Dumanis, Click HERE.

By David G. Savage, Los Angeles Times Staff Writer
April 13, 2008

WASHINGTON -- Prosecutors have long been shielded from lawsuits brought by people who were wrongly convicted. Even if a defendant is later shown to be entirely innocent, the prosecutor who brought the charges cannot be held liable for the mistake.

The Supreme Court has ruled that "absolute immunity" is needed so that prosecutors -- and judges -- can do their jobs without fear of legal retaliation.

But a California case that the high court is considering taking could open a back door for such lawsuits. Prosecutors in Los Angeles are urging the court to block a suit from a man who was wrongly convicted of murder because, they say, it will allow "a potential flood" of similar claims across the nation.

Last year, the U.S. 9th Circuit Court of Appeals set off alarms among prosecutors in the West when it ruled that supervising prosecutors could be sued for alleged management failures that led to a wrongful conviction. Its ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles Dist. Atty. John K. Van de Kamp.

Continue reading "COULD PROSECUTORS BE LIABLE FOR WRONGFUL CONVICTIONS? LET'S HOPE SO!" »

On April 29, 2008 the Public Safety Committee of the California State Assembly will conduct hearings on proposed legislation intended to gut the rights of criminal defendants to obtain police officer misconduct information hidden in their personnel files.

Below is my letter to Assemblyman Solorio in opposition to that legislation.

April 5, 2008

Assembly Member Jose Solorio
Public Safety Committee of the California Assembly
State Capitol
1020 N Street, #111
Sacramento, California 95814

RE: AB 2377 - Custodial Records; personnel records - OPPOSE

Dear Assemblyman Solorio:

I am a San Diego criminal defense attorney and civil rights litigator. I urge you to oppose Assembly Bill 2377.

I write to remind you of how Evidence Code sec. 1043 et seq. came to be. As time goes on our memories of the vast and widespread misconduct in Los Angeles which ultimately prompted such important and necessary legislative action fades. I am here to remind you because history repeats itself.

The following is an excerpt from “Firing a Federal Prosecutor - The Isla Vista Connection" by Bob Potter, coauthor of "The Campus by the Sea Where the Bank Burned Down," an official account of the 1970 riots in Isla Vista. This give you a short synopsis of the serious misconduct perpetrate by then Los Angeles County Sheriff Peter Pitchess, and how he and his cohorts were able to destroy a fine federal prosecutor and quash all allegations of misconduct. We cannot let this happen again.

THE PRECURSOR TO THE PITCHESS STATUTE

“Robert L. Meyer was appointed U.S. Attorney for Los Angeles by President Nixon in May 1970. An active Republican, former campaign manager for U.S. Senator George Murphy, and nominee for the state Assembly, he was immediately faced with several explosive and politically controversial cases involving civil rights violations and alleged police misconduct. These included the “mistake killing” of two Mexican nationals by Los Angeles police officers, the killing of L.A. Times newsman Ruben Salazar during a riot in conjunction with the Chicano Moratorium protests, and finally, widespread charges of gross misbehavior by L.A. County Sheriff’s officers during the June 1970 disorders in Isla Vista.

“Despite strong pressure from L.A.’s elected officials, including Mayor Sam Yorty, Sheriff Peter J. Pitchess, and Police Chief Edward M. Davis, Meyer’s office pursued these allegations aggressively, convening federal grand juries to investigate the charges. In March 1971, five Los Angeles police officers were indicted by the grand jury, including three on charges stemming from the “mistake killing,” one for abetting a burglary, and one for forcing a female suspect to disrobe. These indictments ignited a huge political furor. In Salazar’s case, a coroner’s inquest ruled the death a homicide, but the police officer escaped prosecution, and no indictments were issued.

“It was the Isla Vista cases, however, that brought about Meyer’s downfall. More than 400 reports of police misconduct—including beatings, break-ins, false arrests, and sexual molestation?—?had been collected from Isla Vista residents. In May 1971, indictments were returned by a federal grand jury in Los Angeles against an unnamed number of law enforcement officers, members of the L.A. County Sheriff’s Special Enforcement Branch, and the Santa Barbara County Sheriff’s Office. With the indictments still under seal, Pitchess, Yorty, and Chief Davis all spoke out, with the latter warning that “an ill wind is blowing from Isla Vista.” Sheriff Pitchess flew to Washington, D.C. and met on June 3 with Attorney General John Mitchell. Subsequently the indictments were quashed and never issued.

“In November 1971, Meyer was asked to resign by Assistant Attorney General L. Patrick Gray, acting on instructions from Attorney General Mitchell. “He told me they wanted my resignation, effective January 1,” Meyer recalled, “and that I could have it the easy way, or the hard way.” Meyer resigned his position and died of a heart attack a year later, at the age of 49. After leaving office, Meyer said he had been criticized as a “moderate” or “liberal,” rather than a “true conservative.” Many of his policies did not jibe with what his superiors wanted, but the big issue was “a philosophical area epitomized by the civil rights cases” (L.A. Times, Nov. 15, 1972).

“Despite all the evidence, the accused L.A. and Santa Barbara sheriffs’ officers were never prosecuted. Mitchell and Gray, for their part, would go on to become notorious figures in the Watergate scandal. Gray, briefly appointed J. Edgar Hoover’s successor at the FBI, was revealed to have destroyed evidence from Howard Hunt’s safe and was indicted for illegal break-ins, though he escaped conviction. Mitchell became the first U.S. Attorney General to be convicted of illegal activities and sent to prison.

“Their role in firing a fearless and nonpartisan U.S. attorney in Los Angeles is barely remembered today. But as we contemplate the current politicization of the attorney general’s office, it is worth remembering that quashing legitimate investigations is only a step away from instigating systematic injustice.”

RAMPARTS: HISTORY REPEATS ITSELF

It has been some 38 years since the massive police misconduct in Isla Vista was uncovered. But history repeats itself. Such misconduct was festering - again - in Los Angeles.

More than 200 lawsuits were filed in 2000 in Los Angeles by individuals alleging that they were "framed, shot or beaten by officers in the Rampart division's anti-gang unit."

The scandal involved the investigation of 82 incidents involving 50 officers and the reversal of more than 100 convictions tainted by police misconduct. Racial profiling, excessive force and the Rampart scandal caused the federal government in 2001 to impose a consent decree on the department mandating reforms.

Approximately 18 percent 200 lawsuits were dismissed. All in all, Los Angeles paid approximately $70 million in damages to the plaintiffs. The average settlement was $400,000 but 30 plaintiffs received $500,000 or more. (See Exhibit A, attached hereto, for additional information)

Taxpayers in Los Angeles might want to ask whether their tax money would be better spent reforming the police department rather than paying for officers' lawless conduct, or trying to protect them by making their personnel files more difficult to access.

SAN JOSE: HISTORY REPEATS ITSELF

Below is an article published by the San Jose Mercury News outlining the massive suits brought against another Ramparts-like situation occurring in that jurisdiction.

SANTA CLARA: HISTORY REPEATS ITSELF

In Santa Clara, the 2006-2007 Santa Clara Grand Jury reported that police misconduct was under reported as much as 50 percent by Internal Affairs (“IA”)as compared to reports reviewed by the Office of the Independent Police Auditor (“IPA”). They both got the same reports, but IA reported 50 percent less misconduct than the IPA. This strongly suggests that the police department’s own internal affairs department is complicit in sweeping misconduct under the rug. This is the quintessential “fox guarding the henhouse” example.

SAN DIEGO: A CESSPOOL OF MISCONDUCT

We have the same issues in San Diego as in Los Angeles and San Jose. The problem,
much of the time, is that prosecutors and judges protect law enforcement officers at all costs, just as they protected Peter Pitchess in Los Angeles in the 1970's.

Let me give you some examples.

A. I was a deputy public defender in 1992. I noticed over a period of just a week one officer arrested an unusually high number of people every night. I recall seeing five police DUI arrest reports on one night for this officer. But there was more. It looked like the officer had “whited out” the names of the suspects, and written new names in over the white out. The reports all looked essentially the same- the suspect usually was alleged to have “rolled” through an intersection in Mission Beach. But the suspect’s name was different from report to report. I reported this to my supervisor and heard nothing else.

In 2006 I saw that name again. History seemed to be repeating itself. To make a very long story short, I learned that a former city attorney prosecutor had gotten this police officer kicked off the DUI enforcement team. It seems that after the police department was satisfied that no one would be able to track this misconduct, they put him right back in the same neighborhood and he began falsifying police reports again.

What is shocking about this case is that the prosecutor who got this officer kicked off the DUI enforcement team for falsifying records is refusing to cooperate with me. He is a judge now. He never told any defense attorney that I know of about the officer falsifying reports. And now, some 14 years later, he has declined to assist me in my investigation which I take as tacitly trying to hide this officer’s continued misconduct from the defense bar.

Since I learned of this officer’s misconduct, numerous of his cases have been dismissed when defense attorneys caught him lying. We have been building up our own dossier of misconduct and sharing it because the courts are reluctant to provide us documents in this officer’s Pitchess file. I suspect this is because most of the judges run on a “Law Enforcement’s Choice” ticket for re-election. Granting pitchess motions bodes badly for re-election given the power of the police unions.

I am counsel on a Fourth District Court Appeal, Division One, case where a justice issued an Order to Show Cause why the Pitchess decision denying my request in that case should not be reversed. In short, the prosecution withheld evidence. The trial court, a former police officer, denied a very valid motion on a this rogue officer for no other reason than to protect him. But the Court of Appeal issued a stay of proceedings and demanded the City answer.

I’m still talking about the same police officer.

Another example of the prosecutors trying to protect this known rogue officer occurred when a prosecutor put him on the witness stand to lie. A Deputy City Attorney knew that defense counsel was going to call the officer’s sergeant to testify against the rogue officer in a suppression motion. Instead of just conceding that this rogue officer lied, the prosecutor put him on the stand. He lied. His sergeant testified and impeached the officer. The prosecutor put the rogue officer back on the witness stand to tell the judge that the sergeant was wrong. In short, this prosecutor suborned perjury. The judge granted the defense attorney’s motion and the case was dismissed based on the lack of this rogue officer’s credibility.

But the judge took no action against the prosecutor for putting on false testimony.

This rogue officer is still patrolling. He is still engaging in the same behavior. He’s out there tonight.

B. In 2000 another rogue officer from the DUI task force stopped a young Irish woman for “squealing” her wheels as she turned out of a driveway. The stress caused her to have an asthma attack. She asked the officer is she could use her inhaler. He said no. She repeated her requests continuously until she could stand it no longer. She reached into her pocket for her inhaler. The officer slammed her face into the cement, breaking her nose. The City paid out a hefty sum in damages after a civil rights case was filed. She was so terrified of this officer she moved to San Francisco.

Fast forward to 2007. A paraplegic is stopped by this same officer for allegedly making an illegal turn. The paraplegic was ordered out of the car. He told the officer he could not get out. The officer started yelling at him to get out. A passenger got the wheelchair out of the trunk. The paraplegic got himself into the wheelchair. The officer wheeled him to the rear of the patrol unit where he yelled, “Get out!” The paraplegic asked for accommodations under the Americans With Disabilities Act. He asked for a van. The office started yelling for him to get into the rear of the patrol unit. He could not. The officer hoisted him out of his chair and threw him longways into the back of the cruiser. Then the officer raced down the highway at speeds of more than 90 mph and slammed his brakes on from time to time so the paraplegic would slam into the rear of the passenger seat. Is a well known police abuse technique called the “Hollywood Screen Test.”

Once at the station, the officer yelled at the paraplegic to “get out.” Again, he said he could not. So, the officer grabbed onto the paraplegic’s ankles and pulled him out of the police cruiser, causing the man’s head to slam on the cement floor and bounce. He sustained a rotator cuff injury and a concussion.

The police report says that the paraplegic “walked with an unsteady gait.” The paraplegic wishes he could walk with any gait. But, he cannot walk at all.

I filed a Pitchess motion on this officer. I’ve done it many times. I know he has a massive file because I’ve had several judges provide me damning information from this file. What is shocking is that other judges have told me once they have reviewed the file that there is nothing discoverable in it. These judges lied about the empty contents of the file to assist the officer or the prosecution, not knowing I knew they were lying. That’s the power of the police unions.

After I filed the Pitchess motion in this case, and was denied the evidence I know exists therein, the city filed “resisting arrest” charges. They did that either to retaliate against the client for exercising his right to seek this discovery, or they waited to file this false charge until after the motion was denied to limit my showing of “good cause.” Now that I have filed another Pitchess motion, the city has accused me of forum shopping to find a judge who would grant the motion when, in fact, I am entitled by law to another motion give the new, false, allegations.

Why protect a cop who has cost the taxpayers money and who will do so again?

C. I represent a teenager, a former high school wrestler with no criminal record, who was brutally beaten and disabled by a rogue Chula Vista police officer. The City of Chula Vista has three lawyers defending the city and the officer. They actually claim it didn’t happen. The client is now disabled. We have evidence of the officer’s brutal history, and we have evidence of the officer lying to protect himself. I suspect the City of Chula Vista has spent more than $100,000 thus far trying to defend a rogue officer who they know has a habit of beating people.

D. Several weeks ago an off duty Oceanside police officer sat in his car in a parking lot and unloaded 5 measured rounds into the car occupied by a mother and her eight-year-old son. His window was shattered, indicating that he shot at the mother and child through his window. Any other person would have been arrested for attempted murder and bail would have been set at $1 million. Instead, this officer is on leave with pay. San Diego prosecutors have never seen a cop they wanted to prosecute. Every officer involved shooting is exonerated.

PROSECUTORS PROTECT POLICE OFFICERS

This leads me into a very frightening point: prosecutors suborn perjury and withhold evidence. Now, that is not to say all prosecutors do this. Many do, however. That is why the Oceanside officer who shot the mother and child is still at large. That is why the four rogue officers listed above are still working. That is why the Isla Vista indictments were quashed. That is why Ramparts misconduct festered for so long.

Take for example, how the law firm representing the Legal Defense Fund instructs prosecutors to destroy evidence. They suggest that since evidence of police officer misconduct can be removed from an officer’s personnel file after five years, prosecutors should not warehouse such documentation in their own offices. In other words, this firm suggests that prosecutors destroy evidence the accused has a constitutional right to obtain pursuant to Brady v. Maryland (1963) 373 U.S. 83, stating, “Thus, it is in the best interest of both officers and law enforcement agencies to have a mechanism for routine destruction of citizen complaints that are older than five years. (See Exhibit B, attached herewith)

The problem is that prosecutors cannot legally or ethically destroy Brady evidence. But this Santa Monica Law firm representing law enforcement agencies suggests that they should do this anyway.

POLICE OFFICERS ARE PUBLIC FIGURES; ALLEGATIONS OF MISCONDUCT WON’T HURT THEM

This brings me to another important point: why is the sponsor of this bill worried about frivolous complaints that might harm police officers? The Constitution is not concerned with police officers feelings. It is concerned with justice. Police officers wear body armor, are given psychological assessments, carry tasers, guns, batons and pepper spray. They are supposed to be tough.

As well stated in Imig v. Ferrar (1977) 70 Cal.App.3d 48, “We agree with Plaintiff that it is distressing and demoralizing for police officers to be subjected to false allegations of brutality, but that may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands.”

This is because police officers have been held to be public officials for purposes of defamation claims. Gomes v. Fried (1982) 136 Cal. App. 3d 924, 932-934; see also McCoy v Hearst Corp. (1986) 42 Cal. 3d 835, 841, fn. 3). They are supposed to be able to withstanding scrutiny, even if it’s false.

FEDERAL COURTS WILL NEVER LIMIT PITCHESS DISCOVERY IN FEDERAL CASES

This proposed legislation may make in more difficult for individuals accused of crime to access police officer personnel files for a time. I submit, however, that California courts’ whittling away of the “good cause” requirement in the present statute is based on constitutional principles this legislature cannot legislate away.

For example, when I cross the street from state court to federal court, the rules completely change. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties may obtain discovery of any matter, not privileged, which is relevant to the subject matter of the pending action, including information reasonably calculated to lead to the discovery of admissible evidence.

In United States v. American Optical Co. 39 F.R.D. 580, 583, fn. 4 (N.D.Cal. 1966), the court noted that under the standard of relevance prescribed by Federal Rule of Civil Procedure 26(b), the court is not concerned with whether or not the documents will be admissible in evidence. The scope of discovery is much broader: "Thus, Rule 26(b) has been consistently interpreted as requiring 'relevancy to the subject matter' of the action rather than relevancy to the 'precise issues presented by the pleadings.'" Id.

Discovery rules are to be interpreted liberally. Hickman v. Taylor, 329 U.S. 495 (1974). The burden of showing the information sought is not relevant is on the party resisting disclosure. Kelly v. City of San Jose, 114 F.R.D. 653, 667-68 (N.D.Cal. 1987) Discovery should be ordered because the records are relevant to show the officer’s propensity to use excessive force and to show that supervisors had notice of the propensity but failed to take remedial steps.

There is not much in a police officer’s personnel file that is not discoverable in federal court. For example, in Soto v. City of Concord, 162 F.R.D. 603 (E.D.Cal. 1995), the following records were discoverable: employee appraisals, field operations divisional memo, times cards for dates of incident, training records, employee application, letters of commendation, employee performance appraisals, certificates of promotion, memo regarding interviews, service recognition, employee orientation, records of promotion, memo regarding change of assignment, employee supplemental information sheet, written reprimands.

Statements of interviews of persons having a role in or contact with a case are relevant. Internal affairs histories and statements are relevant, regardless of whether or not those officers are named as parties. Hampton v. City of San Diego, 147 F.R.D. 227, 229 Cal. 1993) Mental, psychological or physical conditions of officers are discoverable. Soto, supra, at P. 8 (citing Mueller V. Walker, 124 F.R.D. 654, 659 (D. Or. 1989).

In Renshaw v. Ravert, 82 F.R.D. 361, 363, (E.D.Pa., 1979), where plaintiffs sought information from police files of prior suits or disciplinary proceedings, the court declined to express a view concerning the admissibility of the information but held, relying on United States v. I.B.M., 66 F.R.D. 215, 218, (S.D.N.Y. 1974), that "discovery is to be considered relevant where there is any possibility that the information sought may be relevant to the subject matter of the action." [Emphasis in original.]

The court further held that matters affecting the credibility of a witness or matters that might be used in impeaching or cross-examining him at trial are discoverable. Renshaw, supra, at 363. Accord: United States v. Meyer, 398 F.2d 66, 72 (9th Cir., 1968).

Thus, not only is the internal investigation into the instant incident discoverable, evidence of other instances of conduct is discoverable because it is relevant to the subject matter of the litigation and is relevant on the issues of credibility, notice to the employer, ratification by the employer and the intent or motive of the officer.

It should be noted the privilege afforded by California Evidence Code Section 1040
has no application in federal actions. See, e.g., Kerr v. United States District Court, 511 F.2d 192, 197-198 (9th Cir.1975), affirmed 426 U.S. 394 (1976); Gill v. Manuel, 488 F.2d 799, 803 (9th Cir.1973); Miller v. Panucci, 141 F.R.D. 292, 297-299 (C.D.Cal. 1992).

In Youngblood v. Gates, 112 F.R.D. 342, 344 (C.D.Cal. 1985), the court also held that federal law controls the issue of the existence and scope of privilege in a federal question case. The Youngblood Court found that the plaintiffs' interest in disclosure outweighed law enforcement's interest in secrecy:

"First, the public has an interest in
assuring just and accurate adjudication of
disputes. Overindulgence in governmental
privileges might weaken public confidence
in the ability of the judicial system to do
justice where government is the defendant.

Second, the public has an interest in
preventing government malfeasance. Exposure
of past wrongdoings might inhibit future
abuses by government employees. [Citations
omitted.]" Youngblood, at p. 348.

In Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D.Cal. 1987), the Court suggested that protective orders could be used to protect whatever interests the police departments may have in keeping evidence of its policies and tactics away from the general public. Id., at p. 666. See also, Soto v. City of Concord, 162 F.R.D. 603, 614-617 (N.D.Cal. 1995) and Hampton v. City of San Diego, 147 F.R.D. 227, 229-231 (S.D.Cal. 1993).

Now, this only makes Exhibit B more frightening, knowing that California lawyers are suggesting destruction of records I am entitled to access under federal law when I bring a federal civil rights claims.

THE LEGISLATION AT HAND

I digressed somewhat in order provide color and texture to the argument that the legislation at hand should be rejected. I presented the lengthy discussion above to remind you of the history of Pitchess, and that this severe problem of police misconduct is just as pervasive today as it was in the 1970's when this legislation was enacted.

If an attorney in every county were to compile a list of civil rights cases that either settled favorably on behalf of the plaintiff, or went to jury trial and won - and we published those findings - the public outcry would be deafening.

I ask you this: is there any evidence whatsoever that there is a widespread destruction of police officers’ reputations and careers as a result of the court’s many interpretations of the Pitchess statute over the years? I know the answer is a resounding “no.”

Then why make take the risk on more wrongful convictions to satisfy the political needs of the law enforcement unions?

I strongly urge that this committee vote against AB2377 for the reasons stated above.

Sincerely,

Mary Frances Prevost

Continue reading "CALIFORNIA STATE ASSEMBLY SHOULD NOT WEAKEN PITCHESS STATUTE STATE " »

Below is a terribly frightening piece of proposed legislation authored by California assembly person Hayashi. It is intended to gut the ability of both criminal defendants and civil litigatants from accessing police personnel files. In other words, Hayashi wants to make it hard for those harmed by the police to learn of their prior miscondcut hidden away in their personnel files.

I think that someone should do some research on Hayashi to learn if the police unins contributed to this legislator's campaign. And, if so, that should be made very public.

Below is the text of the offending bill.

BILL NUMBER: AB 2377 INTRODUCED - BILL TEXT

INTRODUCED BY Assembly Member Hayashi

FEBRUARY 21, 2008

An act to amend Section 1043 of the Evidence Code, relating to
custodial officers.

LEGISLATIVE COUNSEL'S DIGEST

AB 2377, as introduced, Hayashi. Custodial officers: personnel
records.

Existing law provides for the confidentiality of peace or
custodial officer personnel records, as specified. Existing law also
provides discovery procedures for peace or custodial officer
personnel records. Existing law, developed by the courts, requires a
defendant requesting those personnel records to present an affidavit
that sets forth a specific internally consistent factual scenario of
officer misconduct that is plausible when read in light of the
pertinent documents. Existing law, developed by the courts, also
permits courts to make determinations regarding what is plausible
based on a reasonable and realistic assessment of the facts and
allegations.

This bill would require a defendant seeking personnel records to
present an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. This bill would further provide that an
affidavit that contains a bare allegation of misconduct, or that
simply denies the elements of the charged offense, or that merely
denies the veracity of the police report, is insufficient. This bill
would require courts to determine whether good cause for the
discovery or disclosure sought has been demonstrated based on a
reasonable and realistic assessment of the facts and allegations.

Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1043 of the Evidence Code is amended to read:

1043. (a) In any case in which discovery or disclosure is sought
of peace or custodial officer personnel records or records maintained
pursuant to Section 832.5 of the Penal Code or information from
those records, the party seeking the discovery or disclosure shall
file a written motion with the appropriate court or administrative
body upon written notice to the governmental agency which has custody
*and control of the records. The written notice shall be given at the
times prescribed by subdivision (b) of Section 1005 of the Code of
Civil Procedure. Upon receipt of the notice the governmental agency
served shall immediately notify the individual whose records are
sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
peace or custodial officer whose records are sought, the governmental
agency which has custody and control of the records, and the time
and place at which the motion for discovery or disclosure shall be
heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief
that the governmental agency identified has the records or
information from the records. The affidavit shall also include
an internally consistent factual scenario of the claimed
officer misconduct that is substantially credible when read in light
of the pertinent documents. An affidavit that provides a bare
allegation of misconduct, or that simply denies the elements of the
charged offense, or that merely denies the veracity of the police
report, is insufficient.
(c) The court shall determine whether
good cause has been demonstrated based on a reasonable and realistic
assessment of the facts and allegations.
(c)
(d) No hearing upon a motion for discovery or disclosure
shall be held without full compliance with the notice provisions of
this section except upon a showing by the moving party of good cause
for noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records.

04/06/2008

Jack Anderson wants probe into civil-rights violations, promises punishment. Supervisor says report shows 'clear case of human failure.'

SANTA ANA - Acting Sheriff Jack Anderson has called in the FBI to investigate any possible civil rights violations within the county's jails -- a day after a grand jury report found a disgraceful jail system that is run by bullying inmates, lazy deputies and a command staff who tried to cover it all up.

Anderson told the Orange County Board of Supervisors today that he contacted the FBI on Monday, inviting the U.S. Justice Department in to "partner" with him on an internal investigation that has already been launched by an independent watchdog.

Six sheriff's personnel have already been placed on paid leave and more will be identified as he digests the grand jury report, Anderson said, who added that those people may ultimately face criminal charges.

"I will take it as far as I can take it," Anderson said. "Termination will not be enough for me."

Asked how many people will be reprimanded, Anderson replied, "It will be more than it took to carry Chamberlain's casket."

Supervisors, who were briefed on the report by District Attorney Tony Rackauckas on Monday, appeared shaken by the panel's findings. They wondered aloud why video cameras weren't already in place to watch deputies and why there wasn't more supervision of the staff.

"This is not a good day for Orange County," said Supervisor John Moorlach. "We have another clear case of human failure. "The complacency's gotta stop. Good cops can't protect bad cops. The code of silence has gotta stop."

The thousands of pages of documents, created during months of investigation by the grand jury, found that deputies at Theo Lacy Jail often slept in the guard station, played video games, watched television and used inmate "shot callers" to punish other inmates.

The panel was investigating the beating death of Chamberlain, who inmates mistakenly believed to be a child molester – he was being held on charges of possessing child pornography -- and then singled out by other inmates for a brutal attack. The report found that deputies didn't perform routine patrols of the jail barracks and instead focused on watching their favorite TV programs or used their cell phones to text friends.

The panel also found that two of the highest-ranking members of the former Sheriff Mike Carona's command staff lied during testimony, broke grand jury secrecy rules and even doctored a document to defend a decision. The report uncovered a culture among Carona and his staff that refused to allow the DA to investigate Chamberlain's death, with Carona telling Rackauckas, "If I don't want you in my jails, you're not coming in my jails."

Anderson again publically outlined the changes the department has made since the October 2006 murder, which include:

*Removal of all TVs in the guard stations. "They never should have been there," Anderson said.
*Banning the use of PDAs, or personal digital assistants, like cell phones or text messengers.
*Special housing for inmates charged with some sex crimes.
*Spending a proposed $8.8 million on adding video cameras throughout the jails -- $4.4 million has already been allocated.
*Removing privacy walls in the F Barracks of Theo Lacy, where Chamberlain was killed.
*Changing the daily log to make it less vulnerable to "unauthorized editing" by deputies who don't make required checks.
*Rotating personnel among the county's three jails.
*Studying the use of correction officers in the jails, instead of deputies, to reduce costs and increase staffing.

Supervisor Bill Campbell said he was shocked that there weren't video cameras in place to monitor deputies, which would also be a way to ensure their safety, he said.

"It's surprising to me that we didn't have that in place already," Campbell said.

Campbell asked Anderson would the new cameras would be put in place, to which Anderson replied, "It's not going to be quick enough."

The county's strict contracting system has slowed the purchase of new cameras, Anderson said, even as they are trying to fast track cameras for the F Barracks.

Supervisor Chris Norby told Anderson that new policies aren't needed in the jail, but rather the enforcing of already existing policies that call for supervisor of inmates and deputies.

"This is a wake-up call to do that," Norby said.

Continue reading "ORANGE COUNTY SHERIFF CALLS FBI TO PROBE JAILHOUSE CIVIL RIGHTS VIOLATIONS" »

The United States District Court for the Northern District of California has set the standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning.

An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop.

Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

It is clear that the "full search" authorized by Robinson is ordinarily conducted for the officers' safety. A "full search" incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security.

Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant.

In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field--strip search, visual body cavity search and physical body cavity search--are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.

Continue reading "CALIFORNIA CIVIL RIGHTS NEWS: CALIFORNIA FEDERAL COURT SETS STANDARDS FOR STRIP SEARCHES IN THE FIELD" »

SAN DIEGO -- A San Diego police officer was under investigation Monday in connection with an off-duty shooting that wounded a woman and her 8-year-old son in Oceanside, officials said.

Franklin White, an SDPD patrolman since autumn 2005, was placed on administrative leave following Saturday night's shooting, which may have stemmed from a road-rage incident, according to Oceanside police.

White, 28, was not arrested, SDPD Chief William Lansdowne said. Nice double standard, eh?

"It's Oceanside's case, and they're going to handle the criminal side of it," he said. "We'll handle any (personnel) issues." Meanwhile the cop get to walk free while the victims get to go to the hospital. Nice.

The shooting apparently resulted from an escalating dispute that erupted about 9:15 p.m. between White and another motorist near a home-improvement store in the 100 block of Old Grove Road, authorities reported.

"One of the parties violated the right-of-way of the other party, and that (resulted in) the road-rage incident, which led it into the (Lowe's) parking lot," said Oceanside police Sgt. Kelan Poorman. "Then there was some type of either verbal or physical altercation that ... led to the gunfire." The party of the first part, bothered the party of the second part.......what?

Medics airlifted the wounded woman to Sharp Memorial Hospital and took her son to Rady Children's Hospital. Their wounds were not considered life-threatening, Poorman said.

White works out of the SDPD's Southeastern Division, said Detective Gary Hassen, a spokesman for the department.

Now, let's see how long it takes for Deputy District Attorney Bonnie Dumanis to reject charging this officer. She's never seen an officer involved shooting she couldn't find an excuse for.