December 6, 2011

SAN DIEGO CIVIL RIGHTS: JUROR ASSAULTED/ARRESTED BY COURTHOUSE DEPUTY

For John Stephens, the injuries have healed, but the memories have yet to fade.

Click HERE to see the video of the news story.

"I remember thinking, 'What is going on here?'" said Stephens, a retired school bus driver and former Navy sailor.

In July 2010, Stephens was summoned to jury at the downtown courthouse. He walked into the courthouse with his wife, and then placed his watch in the basket as he prepared to go through a security checkpoint.

However, Stephens' implants from knee surgery set off the metal detector, so a deputy took him aside and used a hand-held to inspect him. At that point, Stephens said someone grabbed his belongings.

"I looked over and saw this gentleman with my watch and belt, and I said, 'Hey,'" said Stephens.

Stephens' wife, Elizabeth, said, "He never moved his arms down from that position."

Stephens never finished his sentence because he said a deputy surprised him.

"Next thing I knew I was on the floor and the guy was twisting my arm to the point of breaking it … I felt his knee coming into me … next thing I know I'm on the ground. There were three of them twisting every way they could," Stephens told 10News.

The incident left him upset and in pain.

"One arm was bruised and purple for three to four weeks," said Stephens.

Stephens was also handcuffed and under arrest for obstruction. Charges were never filed, but Stephens filed a civil suit against San Diego County for the abuse inflicted on him by deputies and false arrest.

"He clearly was not a danger to anyone. This is the worst case of abuse by [a] sheriff's deputy at the courthouse," said Stephens' lawyer, Civil Rights Attorney Mary Frances Prevost.

Elizabeth Stephens added, "They could have done irreparable damage. It's not right, it's not right."

Stephens said he thought the right thing was going to jury duty. He's not so sure anymore.

"It was astounding. I came down for this? All I'm trying to do is go to jury duty," Stephens said.

County attorneys declined to comment due to pending litigation.

Stephens' wife tracked down the man who took her husband's watch and other items, and was able to get the items back. The man was not charged with theft.

California Civil Rights Attorney Prevost said she believes there is surveillance tape, but has yet to obtain it.

Continue reading "SAN DIEGO CIVIL RIGHTS: JUROR ASSAULTED/ARRESTED BY COURTHOUSE DEPUTY" »

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.

March 12, 2011

CALIFORNIA CIVIL RIGHTS CASES: ANOTHER CASE OF OVERDETENTION

This is a § 1983 civil rights case regarding "overdetention" of jail inmates.

Here, the Court held that overdetention of 27 hours was not a matter of deliberate indifference (See, Monell 436 U.S. 691) where administrative processing led to 43 overdetentions and 50,957 timely releases, and where new procedures had ‘dramatically decreased’ overdetentions. MSJ properly granted. Law of case did not prevent MSJ where prior appellate opinion dealt with related issues, not issue presented on MSJ [subtle distinction].

Mortimer v Baca, 594 F.3d 714 (9th Cir. 2010)

March 11, 2010

CALIFORNIA CIVIL RIGHTS ATTORNEY MARY FRANCES PREVOST SUES UNIVERSITY OF SAN DIEGO/COACH/POLICE ON BEHALF OF USD'S FORMER POINT GUARD ALLEGING RACIAL PROFILING/RACIAL DISCRIMINATION

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

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

For the San Diego City Beat articles, click HERE.

For the San Diego Union Tribune article, click HERE:

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.

January 13, 2010

FEDERAL CRIMINAL DEFENSE: U.S. DEPARTMENT OF JUSTICE ISSUES NEW MEMORANDUM ON PROSECUTORIAL DISCOVERY

Well, it's about time the United States Department of Justice stepped and authored a new memorandum for federal prosecutors to follow regarding discovery issues. But this begs the question: Why haven't prosecutors followed been following the law (and their oaths of office to uphold the Constitution), automatically?

Deputy Attorney General David W. Ogden issued three Memorandum to DOJ prosecutors presumably intended to remedy some of the setbacks and debacles the Department suffered last year as a result of serious discovery violations in federal felony prosecutions.

The subject of one of the Memos is “Guidance for Prosecutors Regarding Criminal Discovery.” The second Memo reference is “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group.” Finally, a separate Memo is address to all DOJ litigating components and all U.S. Attorneys.

Taking the "Memo to the U.S. Attorneys and DOJ Components" first, Odgen summarizes that he had convened a working group to address DOJ policies and practices regarding criminal discovery issues. Odgen references that he is sending to all DOJ trial attorneys and AUSAs a memo containing Guidance For Prosecutors Regarding Criminal Discovery that prosecutors should follow to ensure that discovery obligations are met in all future cases. Interestingly, Odgen directs that each U.S. Attorney’s Office develop a discovery policy consistent with the law and local rules and practices. That policy must be in place by March 31, 2010.

Again, again again, why must Ogden issue a memorandum containing guidance for federal prosecutors regarding criminal discovery? I mean, it's the law. FOLLOW IT. Clearly this is an issue of prosoecutors not following the rules of ethics. They know the law. I mean, really....

The “Guidance For Prosecutors Regarding Criminal Discovery” Memo sets out detailed steps prosecutors are to follow regarding discovery. The six page Memo first advises that the prosecutors must determine who is a member of the “Prosecution Team” for the purpose of determining what documents must be reviewed for disclosure.

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.

The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

The Guidance Memo reminds prosecutors that discovery within DOJ is covered by the U.S. Attorney’s Manual Section 9-5.001, which is broader than what the law requires and that if a prosecutor chooses to follow that broader course, “defense counsel should be reminded that the prosecutor is electing to produce discovery beyond what is required . . .” The Memo then addresses the scope, timing and form of discovery disclosures, but cautions that, “[p]rosecutors should never describe the discovery being provided as ‘open file.’”

Finally, the Guidance Memo counsels that the prosecutor should make a good record regarding the disclosures.

The “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group” Memo reminds prosecutors of the words of Justice Sutherland that it is the prosecutor’s duty is “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). This Memo informs prosecutors of the establishment of the Guidance Memo set out above and that each U.S. Attorney’s Office shall have a “discovery coordinator.” In addition, DOJ has:

• Created an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
• Produced a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
• Implemented a training curriculum and a mandatory training program for paralegals and law enforcement agents;
• Revitalized the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
• Created a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

Continue reading "FEDERAL CRIMINAL DEFENSE: U.S. DEPARTMENT OF JUSTICE ISSUES NEW MEMORANDUM ON PROSECUTORIAL DISCOVERY " »

January 11, 2010

CALIFORNIA FEDERAL DEFENSE ATTORNEY: IF YOU SEE, SMELL OR SUSPECT MISCONDUCT, YOU MUST RAISE IT IN A PRE-TRIAL MOTION. USE IT, OR LOSE IT.

If there is a claim of outrageous government misconduct in your federal criminal case, and you are aware of the conduct, you must raise it in a pretrial motion. Essentially, use it, or lose it.

This is already the position of the 2nd, 3rd, and 8th circuits, and it is now the position of the 9th Circuit Court of Appeal.

In this case, an undercover agent of the ATF used a confidential informant to infiltrate a crew doing alleged home invasions. The agent supposedly masterminded the plan for a home invasion that was thwarted on the day of the planned acts. The defendant knew about the agent's involvement, but failed to raise the motion pretrial, at trial, or even after trial.

The 9th Circuit reasoned that such claims go to the tainting of the prosecutorial function, and must be presented in time to fully air out the allegations. This, of course, depends on the defendant's awareness.

If facts come out after trial has begun, or there is some excuse for not raising it pretrial, then the 9th Circuit can consider it. That is not the case here.

The 9th Circuit also finds no error in the actions of the district court in dismissing a juror who said he was to be impartial, and could not decide the facts on the evidence. The defendant was given a chance to possibly ask the juror "why" or delve deeper into the reasons, but he declined. The 9th found the challenge to the mandatory minimum of life to be foreclosed by precedent.

U.S. v. Mausali, No. 08-50062 (1-11-10).

Continue reading "CALIFORNIA FEDERAL DEFENSE ATTORNEY: IF YOU SEE, SMELL OR SUSPECT MISCONDUCT, YOU MUST RAISE IT IN A PRE-TRIAL MOTION. USE IT, OR LOSE IT." »

October 21, 2009

UNITED STATES SUPREME COURT DECLINES TO HEAR "ONE SWERVE" ANONYMOUS TIPSTER DUI CASE

United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

October 6, 2009

CALIFORNIA CRIMINAL DEFENSE: THE DEFENSE HAS THE RIGHT TO A PARTISAN DEFENSE EXPERT

THE RIGHT TO A PARTISAN DEFENSE EXPERT

the Ninth Circuit reverses this death case from Arizona for ineffective assistance of counsel (IAC). There's a lot about the failure to investigate. But here's what is of note.

The court appointed an expert, who helped the defense a lot. The Ninth Circuit finds IAC for failure to get a "partisan expert," that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense.

There's an excellent discussion here of your right to such an expert, which I hope we can use to get the experts we need, in all our cases, not just death penalty cases.

Jones v. Ryan; 2009 DJ DAR 14456; DJ, 10/6/09; 9th Cir. Fed C/A

June 29, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 20, 2009

SAN DIEGO CRIMINAL DEFENSE: NO CONSTITUTIONAL RIGHT TO DNA TESTING

The defendant here wants DNA testing, but asked for it in the context of a civil rights lawsuit. The majority says that the defense seeks a free-standing constitutional right to DNA testing, and they aren't creating one. So big deal.

Of note is a concurring opinion, signed by three justices, saying that if the defendant decides not to do DNA testing pre-trial for tactical reasons, that defendant has no constitutional right to DNA testing post conviction.

But check out the dissent by Stevens, which clearly shows that the majority's position here is nonsense.

District Attorney v. Osborne; 2009 DJ DAR 8847; DJ, 6/19/09; US Supremes

June 19, 2009

DOUBLE JEOPARDY AND HUNG JURIES

This case involves a criminal prosecution arising from the Enron scandal. The jury acquitted the def. on some counts and hung on others. Does double jeopardy bar retrial on the hung counts? The U.S. Supremes rule, "Thus, if the possession of insider information was a
critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element."

Yeager v. U.S.; 2009 DJ DAR 8878; DJ, 6/19/09; US Supremes

June 4, 2009

SAN DIEGO MAN SUES RAMONA SHERIFF's DEPUTIES FOR BRUTAL ASSAULT AND BATTERY

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

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

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

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


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

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

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

April 8, 2009

CONFESSION CASE FROM THE US SUPREMES; NO IMPACT ON CALIFORNIA

This US Supreme Court win turns out to help us very little. But it introduces a pretty cool term:
"antisuperfluousness canon." That's the rule (aka canon) that statutes shouldn't be construed so as to render language in the statute superfluous.

There's a federal statute requiring that a suspect arrested on a federal crime be brought to a magistrate within 6 hours. In McNabb (318 U.S. 332 (1943)), the Supremes said that even a voluntary confession obtained more than 6 hours after arrest from a suspect had to
be suppressed.

In 1968, the Congress passed a law intended to overrule Miranda (that attempt was rejected in Dickerson, 530 U.S. 428), and they stuck in a provision saying that a confession obtained within the 6 hours didn't have to be suppressed.

The US Supremes here (5-4) say that, yep, a confession within the 6 hours is OK, subject to Miranda and a finding of voluntariness. But a confession obtained after 6 hours
still has to be suppressed. Impact on California law? None. The court makes it clear that this is all federal procedural stuff.

Corley v. U.S.; 2009 DJ DAR 5023; DJ, 4/7/09; US Supremes

April 5, 2009

IMPROPER DENIAL OF PEREMPTORY CHALLENGE IS NOT A VIOLATION OF FEDERAL DUE PROCESS

The Illinois trial court refused to allow defense counsel to exercise a peremptory challenge. This could happen in California for the same reason: the judge found that exercise of the challenge would violate Batson (476 U.S. 79) as being discriminatory. But the trial judge's
refusal to allow the challenge was wrong.

The U.S. Supremes have previously ruled that peremptory challenges are not required by the U.S. Constitution. Here, they hold that state law governs the consequences of improper denial of peremptory challenges; such an improper denial is just not a federal due process violation.

Rivera v. Illinois; 2009 DJ DAR 4822; DJ, 4/1/09; US Supremes

February 24, 2009

FEDERAL CRIMINAL LAW: MISDEMEANANT IN POSSESSION OF A GUN?

Persons convicted of "misdemeanor crime of domestic violence" are prohibited from possessing firearms. It covers misdemeanor batter when victim was in relationship specified in 18 U.S.C. section 921(a)(33)(A).

Although the domestic relationship must be established beyond a reasonable doubt in the firearms possession prosecution, it need not be a defining element of the predicate misdemeanor offense.

In other words, the underlying misdemeanor need not have been charged as a crime of domestic violence, as long as the government proves at the firearm possession trial that in fact it was.

United States v. Hayes (U.S. Sup. Ct., 2/24/09, 07-608) 09 C.D.O.S. 2199

February 20, 2009

FEDERAL CRIMINAL DEFENSE: QUID PRO QUO REQUIREMENT FOR EXTORTION

Although government must prove existence of a quid pro quo to support conviction for Hobbs Act extortion, quid pro quo need not be explicitly stated. Here, the instructions received were sufficient.

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006

(Hannibal Lecter: If I help you, Clarice, it will be "turns" for us too. I tell you things, you tell me things. Not about this case, though. About yourself. Quid pro quo. Yes or no? [pause] Yes or no, Clarice? Poor little Catherine is waiting.
Clarice Starling: Go, doctor)

February 20, 2009

SAN DIEGO FEDERAL DEFENSE LAWYER: EVIDENCE-IMPEACHMENT BY CONTRADICTION

Impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because it contradicted by other evidence. (United States v. Castillo (9th Cir. 1999) 181 F.3d 1129, 1132.)

It is an exception to the collateral fact rule (Fed. Rules of Evid. 608(b)). The fact to be contradicted must be material, and must have arisen during the direct examination of the witness to be contradicted. District court properly limited the testimony to two Witnesses: "Allowing the defendant to call the mayor, members of the city council, judges, and other public officials to testify about extraneous events would have created a huge sideshow to what was already a trial of notoriety. None of the proffered testimony was central to the core issues of the trial, and thus it is precisely the type of evidence that the collateral fact rule is designed to exclude."

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006


February 20, 2009

CALIFORNIA FEDERAL DEFENSE LAWYER: ARSON AS A FEDERAL CRIME?

United States v. Renteria (9th Cir., 2/20/09, 07-50471) 09 C.D.O.S. 2029

A Defendant could be convicted of malciously damaging a synagogue, in violation of 18 U.S.C. section 844(i), because a gift shop and daycare center had nexus to interstate commerce.

December 30, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: 3-STRIKES SENTENCE STRUCK DOWN AS CRUEL AND UNUSUAL PUNISHMENT

The 9th circuit here strikes down a 3-Strikes sentence as being in violation of the cruel and unusual punishment clause!

The crime here is failure of a registered sex offender to re-register within 5 days of his birthday. The court stresses that the defendant had been registering, hadn't moved, and the police knew where he was all the time. They evaluate the crime as pretty minimal.

The defendant has many serious violent and sex offenses, but they say that nothing about THIS crime shows any recidivist tendencies. Thus, they conclude that 28 years to life
violates the cruel and unusual clause.

AND THAT, MY FRIENDS, IS A GREAT START!

Gonzalez v. Duncan; 2008 DJ DAR ; DJ, 12/ /08; 9th Cir. Fed C/A
http://www.tinyurl.com/7ohl4n

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: 3-STRIKES SENTENCE STRUCK DOWN AS CRUEL AND UNUSUAL PUNISHMENT" »