July 6, 2011

LAW OFFICES OF MARY PREVOST: U.S. SUPREME CURT GRANTS CERTIORARI IN NEW EVIDENCE CASE POST BULLCOMING

The U.S. Supreme Court has granted certiorari in Williams v. Illinois. The case
is a DNA confrontation case where an expert witness rendered an expert opinion based upon the DNA work of others. The case squarely addresses the issue unresolved by Bullcoming as to whether or not the Confrontation Clause permits an expert witness to render an opinion based upon reviewing what is otherwise testimonial evidence. Also, DNA testing often involves multiple experts. Allowing one expert to testify is in keeping with the dissenters' concerns in Bullcoming.

January 31, 2011

FORENSIC SCIENCE REFORM IS LONG OVERDUE

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

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

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

Continue reading "FORENSIC SCIENCE REFORM IS LONG OVERDUE" »

August 6, 2010

SAN FRANCISCO DA LOSES SLEAZY BID TO RECUSE JUDGE (CALIFORNIA CRIMINAL DEFENSE)

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/06/BAEU1EPID0.DTL#ixzz0vq6C2RFr


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April 7, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 26, 2010

CALIFORNIA CRIMINAL DEFENSE: U.S. SUPREME COURT REVERSES VIRGINIA SUPREME COURT ON MELENDEZ-TYPE CONFRONTATION CASE

BRISCOE V. VIRGINIA
Decided: 1/25/10
No. 07-11191
Full Text: http://www.supremecourtus.gov/opinions/09pdf/07-11191.pdf

CONFRONTATION CLAUSE
(Signed certificates prepared by forensic analysts
are testimonial for purposes of the Confrontation Clause)

The United States Supreme Court issued a per curiam decision vacating the
judgment of the Supreme Court of Virginia and remanding the case for
further proceedings consistent with its recent opinion in Melendez-Diaz v.
Massachusetts.

Briscoe was arrested for possession of cocaine. At trial, he objected to the admission of analysis certificates used to prove that the substance he possessed was cocaine. Briscoe claimed the right to confront the forensic analysts that produced the certificates. Procedural safeguards in Virginia allow defendants to call forensic analysts as witnesses. Briscoe argued
that the safeguard did not adequately satisfy his right to confront the witnesses against him as guaranteed in the Confrontation Clause. The Supreme Court of Virginia held that it did not need to determine whether the certificates were testimonial under Crawford. Testimonial statements
subject to the Confrontation Clause will not be admissible in court unless the person who made the statement testifies in court and is subject to cross examination, or if the defense had a prior opportunity to cross examine the witness.

The Court vacated the Virginia Supreme Court decision and remanded the case for proceedings consistent with Melendez-Diaz, in which the Court held that affidavits such as forensic analysis certificates are testimonial statements under Crawford. The Confrontation Clause requires the opportunity for cross examination regarding these statements.

December 29, 2009

SAN DIEGO CRIMINAL SUSPECTS RELEASED FROM JAIL BECAUSE OF FALSE TOXICOLOGY RESULTS

Some ten criminally charged suspects were released from the San Diego jail when it was learned that their tests re sults were fraudulent. Pacific Toxicology, who owns a contract with San Diego to do drug testing for law enfocement, is on the brink of disaster.

This disaster falls right on the heels of the BioTox scandal that was uncovered last spring. Click HERE for BioTox story.

History repeats itself pretty regularly here in San Diego in San Diego with crime lab debacles. Several years ago I learned that in the early 1990's, Judge Michael Smyth, then a prosecutor with the City Attorney of San Diego, knew of and hid the fact that San Diego Sheriff's Crime Lab Analyst Belen Hebreo was testifying falsely in DUI cases for years. Click HERE for story.

So, back to the most recent scandal....

San Diego Union Tribune reports the criminal drug cases against as many as 1,000 people may have been tainted by false-positive narcotics tests from a Los Angeles-area lab, and defense lawyers in San Diego County have been told by prosecutors that their clients may be jailed due to faulty tests.

Ten people were released from jail in Vista on Wednesday because of questions about the lab work at Pacific Toxicology, in Chatsworth, The San Diego Union-Tribune reported.

The vast majority of the cases involve misdemeanor charges of being under the influence of narcotics. Prosecutors are not sure how many cases, if any, might be overturned or otherwise altered because of the problems at the laboratory.

Officials in the District Attorney’s Office said the overwhelming majority of the cases probably involve drug testing for misdemeanors other than drunken driving. An employee who answered the phone at Pacific Toxicology in the San Fernando Valley told the Union-Tribune that no one there was able to comment.

A message left for the president of the company was not returned. Pacific Toxicology has a contract with the San Diego County Sheriff’s Department to test blood and urine samples.

Most of the municipal police departments in San Diego County also use the firm, with the exception of the city of San Diego itself, the Union-Tribune reported.

The lab initially came under scrutiny in October when the District Attorney’s Office notified defense lawyers in an e-mail that tests results from “a small number” of tests conducted in June and July had potential problems.

Deputy District Attorney Damon Mosler told the Union-Tribune the cases in question span from May until this month. He said sheriff’s officials no longer trusted results from the lab after a test result surfaced in one case in October.

“It was false-positive test, and it caused them to just lose confidence in the lab,” Mosler told the Union-Tribune.

A false positive indicates the presence of drugs when none are there. The Union-Tribune reported that a request for comment from the Sheriff’s Department Friday afternoon was not returned, and it was not possible to determine who much the county paid for its work.

Mosler told the Union-Tribune that many of the cases are probably closed now, with defendants probably pleading guilty and getting some sort of drug counseling.

He said prosecutors would not automatically move to dismiss any case that the lab worked on, and would retesting evidence in cases where that is warranted.

Drug convictions can carry ramifications outside the courtroom, affecting jobs, government benefits and other matters, the Union-Tribune reported.

Tags: Pacific Toxicology, San Diego criminal drug cases tainted, san diego district attorney, San Diego false positive drug tests, SDNN

Continue reading "SAN DIEGO CRIMINAL SUSPECTS RELEASED FROM JAIL BECAUSE OF FALSE TOXICOLOGY RESULTS" »

October 29, 2009

SAN DIEGO CRIMINAL DEFENSE: PACIFIC TOXICOLOGY LABORATORY RESULTS CALLED INTO QUESTION

San Diego County District Attorney Bonnie M. Dumanis office said Monday in a news release that officials were sending a letter out to San Diego-based defense attorneys "apprising them of concerns from a toxicology lab about incorrect test results connected to some criminal cases, primarily misdemeanor cases." So far, no effort has been made to contact defense attorney's outside the county, according to a DA spokesman.

Of course, it's also possible that some people were wrongly convicted.

It's not known how many cases or affected -- or which, for that matter -- but a representative for the DA's office did say most of the cases involve DUI charges. What is known is that there are potential problems with toxicology test samples and test results from June and July of this year.

"When we are told of potential problems like this, we alert the defense bar and work quickly to determine the potential scope and any impact it may have on cases," said Dumanis said in a statement. "Just as we have done in the past, we will investigate thoroughly and share the findings with the appropriate parties as soon as possible."

The DA's office said the lab involved is PacTox (Pacific Toxicology Services), which is based in Chatsworth, Calif., near Los Angeles.

Many questions remain unanswered about the situation, and they apparently will remain that way for now.

"The district attorney’s office will have no further public comment until the results of the investigation are complete," the news release concluded.

Earlier this year, the DA had to deal with a similar situation involving a lab tech from Riverside County who officials said admitted falsifying reports while working for a Colorado lab.

Continue reading "SAN DIEGO CRIMINAL DEFENSE: PACIFIC TOXICOLOGY LABORATORY RESULTS CALLED INTO QUESTION" »

September 14, 2009

SAN DIEGO DUI DEFENSE: WILL COPS BE ABLE TO TAKE YOUR BLOOD AT THE SIDE OF THE ROAD?

BOISE, Idaho (AP) — When Officer Darryll Dowell of the Nampa Police Department is on patrol, he will pull up at a stoplight and start casing the vehicle next to him. Nowadays, his eyes will also focus on the driver’s arms, searching for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’ ” Officer Dowell said.

The thought stems from training he and a select cadre of officers in Idaho and Texas have received in recent months in drawing blood from people suspected of driving under the influence of drugs or alcohol. The aim of the federal program is to determine if drawing blood by law-enforcement officers can be an effective tool against drunken drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage law-enforcement officers nationwide to undergo similar training.

The Supreme Court ruled in 1966 that the police could have blood tests forcibly done on a drunken-driving suspect without a warrant, as long as they were based on a reasonable suspicion that a suspect was intoxicated, and they were done after an arrest and carried out in a medically approved manner.

The practice of law-enforcement officers drawing blood, first done in Arizona in 1995, has raised concerns, though, about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chairman of the National Association of Criminal Defense Lawyers’ committee on driving while intoxicated….

For more on this story: http://www.nytimes.com/2009/09/14/us/14blood.html?_r=1&ref=us

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June 25, 2009

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

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" »

June 24, 2009

JURY DELIBERATES IN CASE WHERE LABORATORY WITHHELD EVIDENCE OF INNOCENCE

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

April 21, 2009

CALIFORNIA'S TOP LEGAL NEWSPAPER TRACKS BIOTOX SCANDAL

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.
-------------------------------------------

April 20, 2009

LIES PUT FORENSIC CASES IN JEOPARDY
By Jason W. Armstrong
Daily Journal Staff Writer
RIVERSIDE - Defense attorneys are questioning the viability of evidence in thousands of criminal cases in Riverside, San Bernardino and San Diego counties because defendants' blood and urine tests were conducted by a forensic lab technician who admitted to fudging his analysis in a previous job.

Lawyers are frantically digging for information on every case Aaron Layton tested on behalf of Riverside-based Bio-Tox Laboratories over two years with the company until he was fired in February. Thousands of cases in the three counties that contract with Bio-Tox have been thrown into question, attorneys and some judges say, because Layton acknowledged lying hundreds of times about his testing while working at a Colorado lab eight years ago.

A Riverside County judge last week ordered Bio-Tox to produce a detailed list of nearly 4,000 county criminal defendants whose cases were tested by Layton. In San Diego, a defense attorney fired off a letter to the city's police department Wednesday urging a probe of potentially thousands of cases Bio-Tox analyzed while Layton worked there.

Layton's toxicology tests "are significant in a wide variety of investigations and prosecutions, from cases involving alleged driving while under the influence, to manslaughter and murder," Mary Frances Prevost wrote the department. "Layton's admissions raise the specter that testing results Bio-Tox supplied to [police] were untrustworthy," she said.

San Diego police officials did not respond to a request for comment Friday. Prevost contends the department has a duty to investigate whether lab results were compromised because of funding it receives from a forensic science improvement grant.

Layton did not respond to a request for comment. He has declined to comment in published reports.

So far, no cases in any of the counties have been tossed out over Layton's testing. San Bernardino County prosecutors have identified about 4,800 cases Layton analyzed but say they are only obligated to notify defense lawyers about cases in which Layton testified in trial. San Bernardino County Public Defender Doreen Boxer said she intends to go to court to get the entire list.

San Diego County prosecutors said they are still compiling a list of cases Layton tested in their jurisdiction while working at Bio-Tox. The county and the city of San Diego both contract with the company for criminal forensic testing.

Bio-Tox denies any misconduct. Representatives say they are retesting cases Layton handled. Several hundred they've checked so far have been consistent with the initial results, company officials have said.

However, in Riverside County, Supervising Deputy Public Defender Christine Voss said her office got a different test result than Layton reported in one DUI case. That case was dismissed - not because of Layton's analysis but because of Riverside County Superior Court overcrowding.

"We're trying to unravel the degree of the problem," Voss said Friday. "[Layton's] admissions clearly raise concerns for cases. We have a situation where many people have pled guilty and gone to trial based on his test results."

She said her office might attempt to get convictions overturned depending on what the investigation reveals.

Riverside County District Attorney Rod Pacheco could not be reached Friday.

The controversy sparked in December when Riverside prosecutors conducted a background check on 30-year-old Layton when he was listed as a potential witness for misdemeanor DUI trials. During the check, they came across results of polygraph tests Layton took while applying for an Ohio police department job in 2003. They found that he admitted to lying about conducting tests for Colorado criminal cases while working for Denver-based Forensics Laboratories Inc. in 2001. Layton also acknowledged forging supervisors' signatures on lab documents to make it falsely appear he had checked test results.

Layton was fired from Forensics Laboratories for unrelated reasons.

Riverside prosecutors alerted defense attorneys and the court. They also told Denver authorities, who said they are investigating thousands of cases Layton tested there. He has not been prosecuted in connection with his forensic testing.

The Riverside County Public Defender's office had gone to court Wednesday seeking a list of all cases Layton had worked on, including tests in San Bernardino and San Diego counties. But Judge Jorge Hernandez ordered Bio-Tox to itemize only Riverside County cases. Hernandez said it didn't appear that the company was trying to hide information and he wanted defense lawyers to show evidence of problems with Layton's work before ordering case information from other counties.

He ordered Bio-Tox to submit the case list by April 30.

Continue reading "CALIFORNIA'S TOP LEGAL NEWSPAPER TRACKS BIOTOX SCANDAL" »

February 26, 2009

NATIONAL ACADEMY OF SCIENCES: Badly Fragmented' Forensic Science System Needs Overhaul;

National Academies Post warnings over forensic science problems. Click HERE for story.

June 5, 2008

MINNESOTA ATTORNEY GENERAL ENCOURAGES CONCEALMENT OF BREATH TESTS' CRITICAL FLAWS

Minnesota Attorney General Encouraged Concealment of Breath Tests' Critical Flaws Roseville, MN. June 5th, 2008 ---- Criminal Defense Attorney Chuck Ramsay announced today that he will intercede in The Minnesota Department of Public Safety's federal lawsuit against intoxilyzer manufacturer CMI of Kentucky, Inc.

In March 2008, The Minnesota Attorney General's office filed a federal suit against CMI on behalf of the Minnesota Department of Public Safety. The suit alleges that CMI breached the contract for the sale and maintenance of a fleet of evidentiary breath test instruments to be used by the State, for the purpose of investigating and prosecuting the crime of DWI. In that contract, CMI agreed to sell and maintain the fleet of instruments and to release information pertaining to each respective instrument when ordered to do so by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.

Ramsay claims the state filed suit only in response to judges' complaints of aggressive litigation by criminal defense attorneys demanding access to the software from the courts.

Intox5000en2.gif

Ramsay states that as early as 2006, the Minnesota Bureau of Criminal Apprehension knew its 200 plus intoxilyzers were malfunctioning. Minnesota's Intoxilyzer 5000 displays a driver's alcohol results on its LED readout; yet sporadically records a higher result on the final test record. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005. This prompted the BCA to complain to CMI about the discovered oddities. A BCA employee sent the complaint via email to five CMI representatives and four BCA employees.

This email uncovered by Ramsay exposed what Ramsay calls a smoking gun, evidencing the need for independent review of the Intoxilyzer's software. The State continues to use the bug-riddled software to operate its more than 200 Intoxilyzers, administered to nearly 34,000 drivers annually.

According to the BCA employee, the Attorney General's office, fearing an escalation in the so-called source challenge, advised the BCA to wait until the challenge had lost momentum.

Ramsay intends to file a motion to intervene in the federal lawsuit the AG filed against CMI, a Kentucky corporation. "Its clear the AG will not protect the rights of Minnesotan's in that law suit. I'm intervening to ensure justice prevails. Otherwise, the AG will use this case only for appearance."

"These black boxes not only deprive citizens' of their right to drive, but also put innocent people in jail. The Minnesota Attorney General, our state's chief prosecutor, chose to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine that the public, police and courts believed, and still believe, to be 100% accurate."

Continue reading "MINNESOTA ATTORNEY GENERAL ENCOURAGES CONCEALMENT OF BREATH TESTS' CRITICAL FLAWS" »

May 16, 2008

PROBATIONER HAS RIGHT TO TEST EVIDENCE THAT WOULD REVOKE PROBATION

The defendant was on federal supervised release and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. The defendant protested vigorously. Even though she was watched while she gave the sample, the sample registered "diluted" when it was tested.

Despite some questions about accuracy of the test, procedures, and dilution, the court refused to let counsel cross examine the lab technician. The court found defendant guilty of drug use. The 9th Circuit Court of Appeal (Bea joined by Berzon and Gibson) reversed.

The 9th held that the test results here were shown to be unreliable given the observing of the defendant while providing the sample, and questions as to the accuracy, and so cross examination of the lab tech was needed. Denial of that right was error. The defendant needed the chance to contest the results.

The government tried to argue that the reputation of the national lab for probationer drug testing and the expense (it was in Virginia and the defendant in Hawaii) did not require the lab tech to be in person. After all, their super duper labs can never, never, never make mistakes, right?

Yet, as the 9th Circuit pointed out, the lab itself had raised questions about the sample given the unexplained "dilution." The 9th Circuit wondered why the government did not provide a video feed, or arrange for a depo in Virginia, or even a phone cross-exam.

Moreover, the district court erred in disbelieving the defendant solely because of past offenses or drug use. What? Guilt by assumption again?

The 9th Circuit says the focus has to be on the present violation, and not what had happened in the past. The Court keeps stressing that this is an unusual case because the test result on its face was unreliable. Still, it establishes again that proof is required for a violation and defendant has a right to contest it.

U.S. v. Perez, No. 07-10289 (5-16-08).

April 22, 2008

CALIFORNIA EVIDENCE - TESTIMONY RE: EVIDENCE BEING SENT TO DEFENSE LABORATORY

A Police expert testified that she did not test blood on a ring because it would have consumed it in case it had to be tested again, and that the evidence had been "released to a defense lab." Defense counsel objected, but not on the grounds raised on appeal.

Held, even if claims are cognizable, the testimony did not violate the work product privilege as it applies to criminal cases (only "core" work product protected; see Garcia v. Superior Court (2007) 42 Cal.4th 63, 63, fn. 2).

The Court refuses to reach constitutional issues regarding the admission of the testimony because trial counsel did not object on constitutional grounds, leaving a writ of Habeas Corpus open on that issue.
.
People v. Zamudio (Ca. Sup. Ct., 4/21/08, S074414) 08 C.D.O.S. 4544

Continue reading "CALIFORNIA EVIDENCE - TESTIMONY RE: EVIDENCE BEING SENT TO DEFENSE LABORATORY" »

April 19, 2008

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

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.

38041287.gif

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" »

February 18, 2008

CALIFORNIA DUI DEFENSE NEWS: CRIME LAB CHIEF RESIGNS OVER PROBLEMS RAISED ON FAULTY DUI EVIDENCE

The head of the state labs in Washington that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

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Continue reading "CALIFORNIA DUI DEFENSE NEWS: CRIME LAB CHIEF RESIGNS OVER PROBLEMS RAISED ON FAULTY DUI EVIDENCE" »

February 14, 2008

WASHINGTON STATE CRIME LAB CHIEF RESIGNS AFTR PROBLEMS RAISED ON DUI EVIDENCE

Seattle, Washington:

The head of the Washingtin state labs that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

"Barry has done an excellent job of addressing the issues during this difficult period," State Patrol Chief John Batiste said. "But he and I agree that forward momentum will require different leadership."

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

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Continue reading "WASHINGTON STATE CRIME LAB CHIEF RESIGNS AFTR PROBLEMS RAISED ON DUI EVIDENCE" »

December 2, 2007

BALTIMORE MURDER CONVICTION REVERSED FOR USE OF FAULTY BULLET EVIDENCE

A Murder Conviction Torn Apart by a Bullet
In a 1995 Maryland Case, Key Testimony and the Science Behind It Have Been Discredited

By John Solomon
Washington Post Staff Writer
Monday, November 19, 2007; Page A01

Former Baltimore police sergeant James A. Kulbicki stared silently from the defense table as the prosecutor held up his off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki's mistress.

"I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel," the prosecutor said during closing arguments.

Information from Joseph Kopera, who worked as a firearms expert for the Maryland State Police, was used to convict James A. Kulbicki of murder.

Prosecutors had linked the weapon to Kulbicki through forensic science. Maryland's top firearms expert said that the gun had been cleaned and that its bullets were consistent in size with the one that killed the victim. The state expert could not match the markings on the bullets to Kulbicki's gun. But an FBI expert took the stand to say that a science that matches bullets by their lead content had linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of first-degree murder in the death of his 22-year-old girlfriend. He was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the image of the calculating killer portrayed in the 1996 made-for-TV movie "Double Jeopardy."

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a trail of false credentials, inaccurate testimony and lab notes that conflicted with what he had told jurors. Two years before, the FBI crime lab had discarded the bullet-matching science that it had used to link Kulbicki to the crime.

Now a judge in Baltimore County is weighing whether to overturn Kulbicki's conviction in a legal challenge that could have ripple effects across Maryland. The case symbolizes growing national concerns about just how far forensic experts are willing to go to help prosecutors secure a conviction.

"If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?" said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki's case as a public defender.

Prosecutors are fighting to uphold Kulbicki's conviction, arguing that there is still plenty of evidence that proves his guilt.

"While much of the evidence against the petitioner falls into the category of circumstantial evidence, the state presented a mountain of evidence, both direct and circumstantial," prosecutors argued in a motion earlier this year opposing Kulbicki's request for a new trial.

Police had lots of circumstantial evidence. A jacket with the victim's blood on the sleeve was found hanging in Kulbicki's closet. And four bone chips and a bullet fragment were found in his truck. Tiny drops of blood also were found in the truck, and one spot of blood on the holster of his off-duty weapon. But the blood spots were so small and their quality so poor that they could not be matched to the victim.

Continue reading "BALTIMORE MURDER CONVICTION REVERSED FOR USE OF FAULTY BULLET EVIDENCE" »

October 31, 2007

SAN DIEGO CRIME LAB EMPLOYEE TESTIFIES FALSELY; SAN DIEGO DUI ATTORNEY DEMANDS PROSECUTION

When I last posted in the Dirty Tricks in the Crime Lab Section, I told you about how San Diego Superior Court Judge Mike Smyth - when he was a chief prosecutor at the San Diego Office of the City Attorney - had written to the San Diego Sheriff's Department in 1995 complaining that San Diego Sheriff's lab analyst Belen Hebreo testified incompetently in DUI cases. Ms. Hebreo even testified in a murder case I handled. No one ever told me about the hidden truths about Ms. Hebreo's historically false testimony.

Nothing was done, the complaint was ignored, and Smyth and his coven of unethical prosecutors continued to use Ms. Hebreo without a single prosecutor ever alerting defense attorneys about her false testimony. I found out about it fully 11 years after Smyth, now a judge, wrote that damning letter.

Now, San Diego DUI Defense Attorney Michael Fremont is making claims that a San Diego Police Department lab criminalist testified falsely in the case of People v. Poitrowski.

In a letter obtained by me from Fremont to San Diego District Attorney Bonnie Dumanis, dated October 29, 2007, Fremont asks Dumanis to charge San Diego Police Department criminalist Larry Dale with perjury because "he did not tell the truth as to the ASCLAD accreditation for the crime of breath testing."

He goes on to say "The statement made by Dale on direct that 'every part of the lab has been accredited in terms of how they do business, under ASCLAD' was in fact false and constitutes perjury. An investigation should be opened and he should be charged."

Fremont has not yet received a response from Ms. Dumanis.

Note: When it was revealed that former San Diego Sheriff's department criminalist Ray Cole had falsified his resume to include that he had earned a degree in pre-medicine, neither DA Dumanis nor San Diego City Attorney Mike Aguirre took action, even though Cole had testified in hundreds - if not thousands - of DUI, DUI w/injury and DUI homicide cases over more than 15 years. Can we expect anything more from this new allegation? Don't hold your breath. Prosecutors in San Diego stand by the old addage "the ends justify the means." In other words, "whatever it takes to win"