California Criminal Lawyer Blog

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 This material may not be published, broadcast, rewritten or redistributed.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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Continue reading "SAN FRANCISCO DA LOSES SLEAZY BID TO RECUSE JUDGE (CALIFORNIA CRIMINAL DEFENSE)" »

by Teri Sforza, Register staff writer

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

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

OUCH

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

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

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

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

DOG GONE

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

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

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

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

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

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

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

SAYS THE JUDGE

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

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

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

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

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

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

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

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

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

Here's the article:

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

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is abundantly stupid and inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the 4th of July and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in settlement from the City because the cop falsified the basis for his stop.

That's not to say that your case can be won. Many can, many can't. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a podiatrist if you had cancer? Of course not.

I am the first attorney in San Diego to be voted into the National College for DUI Defense at Harvard by a unanimous vote of the Board of Regents. I see attorneys take cases, take money, and plead the cases right out without doing any work. One such attorney ranks high on the search engines and never, never, never goes to court. Instead, he sends some appearance attorney to go to court and plead out 20 cases per day. He keeps all the money, does little to no work, but has a great marketing director. Don't be fooled.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over San Diego are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this 4th of July holiday.

1. If you drive in San Diego during the 4th of July holiday, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

Continue reading "SAN DIEGO DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS FOURTH OF JULY" »

Orange County Deputy Sheriff Allen Waters has just been arrested for felony DUI and sales of drugs in the OC jail.

http://taxdollars.freedomblogging.com/2010/06/09/deputy-trades-in-sheriffs-green-for-jailhouse-orange/58819/

Waters is well known for being part of a conspiracy with one of his Sheriff buddies who caught him drunk driving. The law enforcement friend stopped Waters for drunk driving and let him go. Shortly after, he slammed into a little old woman, seriously injuring her and causing her to be sent to the hospital in an ambulance.

http://www.californiacriminallawyerblog.com/2010/03/california_dui_defense_orange.html

He is also the deputy that settled a civil rights suit when he burst into a man's home and beat him to the ground.

http://www.californiacriminallawyerblog.com/bad_cop_no_donut/

When will the Orange County taxpayers rise up and demand that their taxpayer dollars be spent on school and human services rather than line the pockets of the big civil firms that are hired by the County at the behest of the police unions to protect the dirty cops? When?

When will Orange County take resposibility for this thug? The County has already spent, what I estimate to be over $100,000 in attorney fees and costs representing this bad apple cop. Why won't they protect Toy White, an innocent taxpayer who was brutalized by this thug cop after he burst into her house along with Crivelli, Macias and Jansen, and dogcatcher Holmes? Why is SHE not protected?

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is abundantly stupid and inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the holiday season and we all know we are going to imbibe, just planning to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in settlement from the City because the cop falsified the basis for his stop.

That's not to say that your case can be won. Many can, many can't. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a podiatrist if you had cancer? Of course not.

I am the first attorney in San Diego to be voted into the National College for DUI Defense at Harvard by a unanimous vote of the Board of Regents. I see attorneys take cases, take money, and plead the cases right out without doing any work. One such attorney ranks high on the search engines and never, never, never goes to court. Instead, he sends some appearance attorney to go to court and plead out 20 cases per day. He keeps all the money, does little to no work, but has a great marketing director. Don't be fooled.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over San Diego are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this Memorial Day holiday.

1. If you drive in San Diego during Memorial Day, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

Continue reading "HOW TO AVOID A DUI ARREST AND CONVICTION THIS HOLIDAY SEASON" »

On July 7, 2007, Laguna Niguel resident Toy White, a beautiful, petite 5'1" blonde was beaten down in her home by a posse of Orange County sheriff deputies. Leading the pack was dogcatcher Harold Holmes. The dirty, ugly facts can be read in depth here. Download file

Today, the City of Mission Viejo settled Mrs. White's claims against City based on the dogcatcher's unlawful actions. Holmes' part in the ruckus was his insistence that Mrs. White relinquish her dog to him for quarantine even though the dog had its rabies shots, and the dog qualified for home quarantine.

Holmes burst into the house to take the dog, and four sheriff deputies burst in behind him, threw Mrs. White to the ground causing her serious injury, handcuffed her, arrested her for resisting arrest and battery on an officer, sent her to jail where she was strip searched, and caused her to be prosecuted.

Once the DA got the full picture, the DA dropped the charges.

But why isn't the County of Orange taking responsibility? Why? It was the cops who beat this tiny cosmetics rep into the ground in her own house. It was the cops who had her wrongfully prosecuted, having trumped up false charges to cover their dirty acts.

And the piece de resistence is that we've all heard about one of the dirty cops. Allan Waters. Ring a bell? Remember the rash of news stories about how a Sheriff's deputy let a raging drunk Waters drive home after a vehicle stop, only to have Walters hit another car head on, sending the elderly occupant to the hospital? Read about it HERE.

Yeah, that's our boy, Allan Waters. In his spare time, when he's not drinking, he's beating up 5'1" blonde cosmetic executives.

Well, he not only beat up little Toy White, he beat up another guy. That guy's name is Robert Isaac. Lo and Behold, Waters busted into Isaacs house, too, causing him injury. And guess what, the County of Orange is defending this cop who is on administrative leave and is pending two really serious civil rights suits.

Attorney Steve Ehrlich from Orange County represents the plaintiff in the Isaac beat down. I represent Mrs. White in the White beat down.

The County of Orange taxpayers are paying two high-priced lawfirms maybe $200 per hour to represent this dirty cop on two separate cases. How many tens of thousands of dollars will the taxpayers be forced to spend on the lawfirm of Sullivan & Ballog, who represents Waters in my case, and the firm of Lawrence, Beach, Allen & Choy in the Isaac beat down case. I guarantee you that by the end of both of these litigations, the County of Orange will have well exceeded $100,000 in attorney fees and litigations costs defending a dirty cop.

It's sickening. The taxayers should stand up and say "We're madder than hell and we're not going to take it any more." They should send the high-priced civil attorneys packing, along with their crummy client. Protect little elderly people from being smashed to smithereens by this drunkard Waters. Protect nice, law abiding cosmetic executives from being attacked in their houses by Waters. Protect whomever from whenever they run into Waters.

May 12, 2010:

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

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

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

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

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

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

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

For the San Diego City Beat articles, click HERE.

For the San Diego Union Tribune article, click HERE:

Off-duty O.C. sheriff's deputy is arrested on DUI charge after crashing twice within 30 minutes.

An off-duty Orange County sheriff’s deputy, who allegedly was intoxicated when he crashed his Mercedes-Benz into another vehicle and injured a passenger, had crashed 30 minutes earlier and was allowed to drive from that accident scene by fellow deputies, authorities said Friday.

Sheriff’s deputies were called Monday afternoon to a crash involving Deputy Allan James Waters, 36, and another vehicle outside City Hall in Dana Point. Deputies took a report and permitted Waters keep driving, said Assistant Sheriff Mike James.

About 30 minutes later, at 5:20 p.m., Waters crashed his Mercedes-Benz into a Toyota in Laguna Niguel, causing it to cross the center median and slam into a tree, according to the California Highway Patrol. Dolores Molina, a 78-year-old passenger in the Toyota, suffered minor injuries.

Can you say "lawsuit?"

CHP officers said Waters showed signs of being intoxicated and was booked on suspicion of driving under the influence. He was released Wednesday, according to jail records.

Waters is a 13-year veteran of the Sheriff’s Department, assigned to south Orange County, James said.

The department is conducting an internal investigation to determine why Waters was allowed to keep driving, James said.

Waters had been placed on administrative leave about two months ago, but James would not say why. He said the deputy will remain on leave while the investigations are conducted.

FOUR YEAR SUSPENSION FOR PROSECUTOR UPHELD.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 23, 2010

DEFENSE LAWYER CHALLENGES O.C. JUDGE

By Don J. DeBenedictis

Daily Journal Staff Writer

SANTA ANA - The lone Orange County Superior Court judge being challenged for re-election in June faces a lawyer who is best known for devising a short-lived, surreptitious route to snaring a misdemeanor dismissal, and who is miffed about the judge's reaction to his maneuver.

DUI defense lawyer Chad R. Maddox realizes he has little chance of unseating Craig E. Robison, a well-regarded judge with impeccable law-and-order credentials as a former deputy district attorney and police detective.

"I understand the reality," Maddox said.

Robison said he doesn't really know why Maddox is challenging him and wouldn't want to say anything negative in his election campaign, anyway.

The why traces to a driving-under-the-influence case Maddox handled in 2007.

Maddox realized that if he waived his client's speedy-trial right in open court, he could file a written withdrawal of the waiver a few days later without prosecutors noticing - even though he served them with a written warning and with the waiver itself. Then, 30 days later, he demanded the case either be tried immediately or dismissed because time for a speedy trial had run out.

The judge hearing the case refused to go along and set the trial for three weeks later. Maddox got that ruling reversed by the Superior Court Appellate Department, which published its opinion. Arias v. Superior Court (People), 167 Cal.App.4th Supp. 1 (2008).

Many judges reacted by telling all lawyers who made such "general time waivers" to withdraw the waivers only in open court, when prosecutors would be present. But Robison imposed that new requirement on Maddox alone, Maddox said.

That meant, Maddox said Friday, "basically, my clients were going to be handled differently because they're being represented by me."

Robison countered that he imposed the requirement on Maddox alone because Maddox alone was using the maneuver. "If he feels singled out, it's because he singled himself out," the judge said.

Many judges and lawyers saw the maneuver as underhanded because it amounted to the defense attorney waiving time knowing he didn't really mean it. It amounted to "a fraud on the court," one judge said.

Maddox maintains the maneuver only worked because misdemeanor prosecutors don't bother to look at what's in a case file until they get to court for a hearing. That style would never work in felony or civil litigation practice, he said.

"It comes down to [prosecutors'] being lazy," Maddox said. It also requires misdemeanor defendants "to make all of their motions once a month when cases are in court."

The state's prosecutors responded with legislation. AB 250, by Assembly Member Jeff Miller, R-Mission Viejo, which took effect Jan. 1, requires all time-waiver withdrawals to be made in open court.

In its support of the bill, the California District Attorneys Association blamed cutbacks and growing workloads for prosecutors' looking at misdemeanor files only on court days. The attorney general's office called Maddox's maneuver "gamesmanship." (I find it fascinating that lazy prosecutors call it gamesmanship when defense attorneys take advantage of their sloth)

Maddox himself understands how lawyers and judges could see it that way. Even Robison, he conceded, was "trying to do something proactive to make sure cases were not dismissed unjustly."

He isn't planning to spend much on his campaign. Still, "if a miracle happens and I win that seat, it would be a blessing for all," he said.

The San Diego Police Department and the San Jose Police Department are initiating a pilot program where officers will wear video cameras while on duty. Click HERE for story.

Interesting. The Oceanside PD tried that some years back, as did Laguna. Funny, when defense attorneys started pointing out to the DA's that the videotapes showed a dramatically difference picture than the police reports, cases started getting dismissed.

Oceanside and Laguna finally trashes the cameras. Let's see how long this will last. I suspect that in the first case I get where I ask for the video, I will be told it was on the blink....

SAN DIEGO:

The prosecutor who led the team that secured the guilty plea of Francisco Javier Arellano Felix and several other members of the notorious Arellano Felix drug cartel has been selected by President Barack Obama to be the next U.S. Attorney in San Diego.

She is Laura Duffy, now the Deputy Chief of the General Crimes Section at the U.S. Attorney’s Office in San Diego and previously an Assistant U.S. Attorney in the office’s Narcotics Enforcement Section.

Duffy’s selection was announced by the White House, along with that of Wifredo Ferrer for the Southern District of Florida, Alicia Limtiaco for Guam and the Northern Mariana Islands, and John Stevens Jr. for the Eastern District of Texas.

“These distinguished men and women have shown extraordinary commitment and integrity in their pursuit of justice. I am confident they will serve the American people wisely and effectively as United States attorneys,” Obama said in a statement.

Duffy, who was nominated by Democratic California Sen. Barbara Boxer, will replace U.S. Attorney Karen Hewitt if confirmed by the Senate. With 120 prosecutors, the U.S. Attorney’s office in San Diego is the
nation’s third-busiest, handling all federal litigation, including the prosecution of federal crimes, in San Diego and Imperial counties.

Duffy graduated from Iowa State University in 1988 and the Creighton University School of Law in 1993.

From 1993 to 1997, she worked for the criminal division of the Justice Department, first as a trial attorney for the money laundering section, then as a trial attorney for the narcotics and dangerous drug section. She joined the U.S. Attorney’s Office for the Southern District of California, the formal name of the San Diego office, in 1997.

PHOENIX (CN) - Two more civil rights complaints against self-proclaimed "America's Toughest Sheriff" Joe Arpaio and his officers cite a "culture of hatred" of Hispanics, and racial profiling. One man claims a Maricopa County deputy ran him over and left him pinned under the police car in front of the man's own home, while assaulting and arresting family members who tried to help him.

The other complaint claims that sheriff's officers in black ski masks beat a Hispanic woman on a "crime sweep" of a business that had a contract with the county, then threw her in jail for two months without allowing her medical assistance for her injured teeth.

In that case, Celia Alvarez says she was jailed for two months without proper medical care after sheriff's made the "crime sweep" on Handyman Maintenance.

In that raid, on Feb. 11, 2009, Alvarez says two deputies "lifted her off her feet, and slammed her face into a wall," injuring her teeth, jaw, face and head.

After Alvarez was interrogated and placed "in a line with many other HMI employees, one of the deputies, completely unprovoked, violently struck" her on the arm with the metal part of a clipboard, she says. She was taken to county jail, where she was subjected to an "invasive and embarrassing strip search" in front of many deputies.

She sought medical attention, but was told that "her first opportunity for medical care would not occur for at least two weeks." She says she was jailed for more than two months without proper medical attention - for so long that "doctors have been unable to repair her condition even through surgery."

Alvarez seeks damages for illegal search and seizure, and assault. She is represented in Federal Court by Steven E. Harrison and N. Patrick Hall with Wallin Harrison of Gilbert, Ariz.
In the other complaint, Armando Nido says he was driving home when Maricopa County Sheriff's Deputy James Carey tried to pull him over for a broken tail light. Carey "illuminated his lights but did not run his siren," says Nido, a U.S. citizen.

Nido says he "slowly and cautiously proceeded to drive his vehicle home rather than immediately pull over" because he feared "the pattern and practice that had been implemented and exhibited by" the Maricopa County Sheriff's Office toward people of Hispanic descent.
Nido says he parked in front of his home and got out to speak to Carey, who "accelerated his own vehicle around the driver's side" of Nido's car, running him over.

Nido says he was trapped under the police car, unable to move, and Carey refused to help him or let his family help him. Nido says he "remained trapped under the vehicle until fire and paramedics arrived," with multiple broken bones and burns, all the while suffering verbal abuse from Carey.

After Carey ran him over, Nido says, his mother ran outside and pleaded to help her son, but Carey "struck her in the chest, knocked her to the ground, handcuffed her and arrested her."

Seeing the abuse, Nido's brother, Raul, began taking photos, and Carey and other deputies "tackled him to the ground, took the camera, handcuffed him, lifted him by his cuffed arms, knocked him to the ground again, re-lifted him by his cuffed arms, and arrested him," according to the complaint.

When a second brother, Rene Nido, sought to help his brother pinned under the car, Carey Tasered him, "handcuffed him, lifted him by his cuffed arms, and arrested him."
All charges filed against the Nidos were dropped, according to the Superior Court complaint. The Nidos say sheriff's detectives recommended that the County Attorney's Office prosecute Carey for aggravated assault, but charges were never filed.

The Nidos say there is a "culture of hatred" in Arpaio's department "to individuals who appear to be of Hispanic descent."

The Nidos seek damages for assault and battery, negligence, false imprisonment and civil rights violations. They are represented by Robert Ramirez with Miranda and Ramirez.

Riverside Police Chief Russell Leach crashed a city-owned vehicle about 3 a.m. Monday, going off the road and hitting a light post and a fire hydrant, authorities said Tuesday.

"Chief Leach was driving on Central Avenue and allowed his car to drift off the road," said California Highway Patrol Inland Division Chief Jeff Talbot. "I understand that two of the tires were down to the rim."

The CHP is investigating the incident, but Talbot said it was too early in the investigation to determine the cause of the accident or whether alcohol was involved.

"As far as any impairment, I have no idea. We will have to rely on statements from the Riverside police officers who were at the scene. There was no arrest," he said. "We will have the vehicle in here tomorrow, and I have some officers going out to the scene."

Riverside's city manager put out a brief statement Tuesday saying Leach had been involved in a single-car, non-injury crash. Leach has been placed on medical leave, the statement said.

Police spokeswoman Sgt. Jaybee Brennan would not comment except to say there had been an accident. She referred all questions to City Atty. Greg Priamos, who did not return calls for comment.

Talbot said Riverside Police Deputy Chief John De La Rosa contacted him Tuesday and asked the CHP to investigate the accident.

"He thought it would be in the best interests of everyone for us to do it," Talbot said. "They wanted us to come in because we are completely unbiased."

The CHP often handles such investigations when they involve other law enforcement agencies.

Leach recently helped lead a massive assault on the notorious East Side Riva gang in Riverside. And last Wednesday he warned against drinking and driving on Super Bowl Sunday.

"Designating a sober driver should be on the top of everyone's Super Bowl party list," he said. "It's just one of several easy steps to help save lives."

Continue reading "CALIFORNIA DUI: CHP TO INVESTIGATE RIVERSIDE POLICE CHIEF'S EARLY MORNING DUI CRASH" »

BRADY DUTY BUT NOT PITCHESS DUTY

The defendant was convicted of murder, and a key witness testified against him. The police detective told the defense that this guy wasn't a paid informant. Some years later, the defense stumbled across information which showed that the guy was in fact a paid informant. The defense now files a habeas petition.

The defense seeks Brady (373 U.S. 83) discovery of complaints in the detective's personnel file that the detective claimed that informants weren't paid when in fact they were.

This is an interesting case because the C/A finds no basis for Pitchess (11 C3d
531) discovery but does order review of the detective's personnel file on Brady grounds, correctly finding that prior complaints about the detective lying about informants being paid would impeach the detective's testimony at any habeas hearing. This is the first possible published case where the court finds a discovery duty under Brady but not
Pitchess.

Eulloqui v. Superior Court; 2010 DJ DAR 1930; DJ, 2/7/10; C/A 2nd,
Div. 1

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.

A Texas judge who closed her courtroom early to avoid a last minute appeal by a death row inmate faces five counts of judicial misconduct. Click HERE for the full story.

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 " »