California Criminal Lawyer Blog

Criminal defense attorney and civil rights litigator Mary Frances Prevost has been nominated as a semi-finalist in the San Diego Daily Transcript's "Top San Diego County Attorneys" competition. Prevost received the honor after more than 7,000 San Diego attorneys voted for the best lawyers in several fields.

Click HERE to see the semi-finalist results.

This is the second nomination of Prevost by her fellow attorneys. In 2005, she was also voted a semi-finalist in San Diego's Top Attorneys.

Prevost, a 1991 graduate of California Western School of Law has been practicing state and federal criminal defense for 16 years. Some of the highlights of her career:

* Her investigation into the dangerous and unlawful policy of using unlicensed personnel to draw blood for law enforcement caused the California Department of Health Services to issue a "Cease and Desist Order" to American Forensic Nurses, the agency used by law enforcement to draw blood in DUI cases in San Diego and Riverside counties. As a result of Prevost's challenge to the unlawful use of unlicensed personnel to draw blood in dui cases, the California legislature changed the law to add protections for DUI suspects in cases where their blood was drawn.

* Recusing the Imperial County bench and getting a retired appellate justice to issue a stay of proceedings during trial. Prevost complained to the appeals court that the policy of the Imperial County courts in conducting part time trials in criminal cases was contrary to law and caused severe prejudice to her out-of-town client. Prevost intends to file an injunction in the next few weeks to shut down the illegal practice of conducting part-time trials.

* Getting a reversal in the California Court of Appeal on the trial's court's refusal to produce evidence of misconduct on San Diego's top DUI cop. Prosecutors and police legal advisors alike knew the officer was falsifying reports, but put up roadblocks to protect him

This is the second honor for San Diego Criminal Defense Lawyer Mary Frances Prevost. In 2005 she received such honors from the San Diego Daily Transcript when her colleagues singled out her achievements and placed her in the semi-finals of the San Diego Daily Transcript's Top attorneys competition.

San Diego Criminal Defense Lawyer and Civil Rights Litigator Mary Frances Prevost handles state and federal criminal defense cases throughout California. She also handles select civil rights cases throughout the state. She has taught at the California and Florida State Bar Conventions, the California Public Defender's Association annual seminar, the Minnesota Criminal Justice Attorneys' Annual Criminal Defense Seminar in Las Vegas, and is scheduled as a key speaker at the San Diego Public Defender's Association annual DUI seminar in Monterey in June.

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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.

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" »

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Posted In: Breath Testing , DUI Defense , Dirty Tricks in the Crime Lab , In The News , Police Misconduct Cases , Prosecutorial Misconduct

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May 26, 2008

EAST COUNTY – Three people are facing drug smuggling charges after Border Patrol agents seized more than 1,000 pounds of marijuana from two vehicles, officials said. Patrol Patrol agents say they stopped this vehicle with large packages of marijuana in the back.

On Thursday morning, agents spotted a Chevrolet Tahoe with two people inside on westbound Interstate 8 near Pine Valley. The SUV was followed to the parking lot of an El Cajon grocery store, where a search of the vehicle netted 96 bundles of marijuana with a total weight of 997 pounds, officials said.

Later that morning, a drug sniffing dog alerted agents to the possibility of drugs inside a Honda Accord at the Border Patrol checkpoint in Pine Valley, officials said. Agents found more than 92 pounds of marijuana hidden in the vehicle's door panels, officials said.

Continue reading "SAN DIEGO DRUG SMUGGLING DEFENSE: THREE PEOPLE FACE CHARGES OF SMUGGLING 1000 POUNDS OF MARIJUANA" »

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May 26, 2008

CHULA VISTA: Nine people were hurt yesterday morning when a woman suspected of drunken driving drove the wrong way on Olympic Parkway and crashed into a sport utility vehicle carrying eight people, Chula Vista police said.

The crash occurred shortly before 3:30 a.m. when a 19-year-old woman drove her Hyundai Accent west in the eastbound lane, police Lt. Tro Peltekian said. Her car collided with a Honda SUV that was heading east on Olympic Parkway near Oleander Drive, Peltekian said.

The 19-year-old was taken to a hospital with serious injuries, police said. Police arrested her at the hospital on suspicion of felony driving under the influence, Peltekian said.

The driver and seven passengers of the SUV also were taken to hospitals. The range of their injuries was described as minor to moderate, police said.

Continue reading "CHULA VISTA DUI DEFENSE: NINE PEOPLE HURT IN SUSPECTED DUI ACCIDENT-DRIVER DROVE THE WRONG WAY" »

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May 21, 2008

ORANGE COUNTY SHERIFF'S DEPUTY CHARGED WITH FILING 18 FALSE POLICE REPORTS IN DNA PROPERTY CRIMES PROJECT

SANTA ANA - An Orange County Sheriff's deputy was charged this morning with filing false police reports with the Orange County Sheriff's Department (OCSD). Jason Christopher Brant, 33, Chino, is charged with 18 misdemeanor counts of filing a false report as a peace officer. He faces a maximum sentence of 18 years in jail if convicted. Brant is scheduled to be arraigned Thursday, May 29, 2008, at 9:00 a.m. at the Central Justice Center in Santa Ana.

In 2005 the Orange County District Attorney's Office and OCSD received a grant from the National Institute of Justice. The grant funded a South Orange County project to determine the effectiveness in using DNA to solve property crimes.

Brant, a sworn deputy, is a 10-year veteran with the OCSD and was selected by the Department to work on this project. He was assigned to follow up on 39 of the 500 property crimes cases that were selected for DNA testing. Brant's job included contacting the victims of 39 cases that occurred between 2005 and 2007, conducting 39 follow-up investigations, collecting contact information from the victims in the event that a DNA match led to an identification of a defendant in their case, and determining the victim's willingness to cooperate in the case.

On January 14, 2008, Brant submitted 39 reports to OCSD. Of those 39 cases, Brant is accused of filing 18 false police reports stating that he had contacted each victim by telephone and they had declined to cooperate in the investigation.

Continue reading "ORANGE COUNTY COP CHARGED WITH FILING FALSE REPORTS " »

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Posted In: Bad Cop - No Donut , Civil Rights , In The News , Police Misconduct Cases

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75 students arrested in San Diego State University drug bust
By ALLISON HOFFMAN – 50 minutes ago

SAN DIEGO (AP) — Dozens of San Diego State University students were arrested after a sweeping drug investigation found that some fraternity members openly dealt drugs and one even sent a mass text message advertising cocaine, authorities said Tuesday.

Two kilograms of cocaine were seized, along with 350 Ecstasy pills, marijuana, psychedelic mushrooms, hash oil, methamphetamine, illicit prescription drugs, several guns and at least $60,000 in cash, authorities said.

Of the 96 people arrested, 75 were students. Eighteen of the students were arrested Tuesday when nine search warrants were executed at various locations including fraternities, said Jesse Rodriguez, San Diego County assistant district attorney.

The undercover probe, dubbed Operation Sudden Fall, was sparked by the cocaine overdose death of a student in May 2007, authorities said. As the investigation continued, another student, from Mesa College, died Feb. 26 of a cocaine overdose at an SDSU fraternity house, the DEA said.

Those arrested included a student who was about to receive a criminal justice degree and another who was to receive a master's degree in homeland security.

"A sad commentary is that when one of these individuals was arrested, they inquired as (to) whether or not his arrest and incarceration would have an effect on him becoming a federal law enforcement officer," said Ralph Partridge, special agent in charge of the U.S. Drug Enforcement Administration in San Diego.

Some defendants were scheduled to appear in state court to face charges Tuesday.

During the probe investigators discovered that in some fraternities most members were aware of "organized drug dealing occurring from the fraternity houses by its members," the DEA said in a news release.

"Undercover agents purchased cocaine from fraternity members and confirmed that a hierarchy existed for the purpose of selling drugs for money," the DEA said.

The district attorney's office said search warrants were served in San Diego and suburban La Mesa, including the Theta Chi fraternity house and several apartments.

A member of Theta Chi sent out a mass text message to his "faithful customers" stating that he and his "associates" would be unable to sell cocaine while they were in Las Vegas over one weekend, according to the DEA. The text promoted a cocaine "sale" and listed the reduced prices.

Theta Chi's San Diego chapter declined to comment.

"We're talking to our advisers," said John Phillips, a past president of the chapter.

Dale Taylor, the fraternity's national executive director, said he was "obviously shocked and saddened" by the allegations.

Theta Chi has prohibited the San Diego chapter from group activities like parties or sports and will investigate additional disciplinary measures, up to expulsion of members or the entire chapter.

Theta Chi, based in Indianapolis, has 131 chapters in the U.S. and Canada and more than 161,000 initiates. It was founded in 1856.

The San Diego chapter was founded 61 years ago and has 65 members.

"They were on the upswing," Taylor said. "They had improved their recruitment. They were trying to raise money for a new house."

University police and federal drug agents worked together in the investigation, making more than 130 undercover drug buys at locations including fraternity houses, student parking areas and dormitories, authorities said.

Shawn Collinsworth, executive director of the national office of Phi Kappa Psi, said he was told by two of the SDSU fraternity chapter's leaders that four of its members were arrested. He said the fraternity is cooperating with the investigation.

"It isn't behavior becoming of Phi Kappa Psi," Collinsworth said.

San Diego State is one of the largest schools in California's state university system with about 34,000 students. The campus has an active network of fraternities and sororities.

Continue reading "75 STUDENTS ARRESTED IN SDSU DRUG BUST-GUNS INVOLVED" »

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

DUMB COP ACCIDENTALLY SHOOTS CUFFED SUSPECT

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

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

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

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

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CALIFORNIA LEGISLATOR WITHDRAW BILLS THAT WOULD HIDE POLICE MISCONDUCT

Hayashi warrants support for 2nd Assembly term

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

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

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

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

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

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

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

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

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

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

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

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

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

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DNA Tests Offer Deeper Examination Of Accused
Biological, Emotional States Scrutinized

Twenty years after DNA fingerprints were first admitted by American courts as a way to link suspects to crime scenes, a new and very different class of genetic test is approaching the bench.

Rather than simply proving, for example, that the blood on a suspect's clothes does or does not match that of a murder victim, these "second generation" DNA tests seek to shed light on the biological traits and psychological states of the accused. In effect, they allow genes to "testify" in ways never before possible, in some cases resolving long-standing legal tangles but in others raising new ones.

Already, chemical companies facing "toxic tort" claims have persuaded courts to order DNA tests on the people suing them, part of an attempt to show that the plaintiffs' own genes made them sick -- not the companies' products.

In other cases, defense attorneys are asking judges to admit test results suggesting that their clients have a genetic predisposition for violent or impulsive behavior, adding a potential "DNA defense" to a legal system that until now has held virtually everyone accountable for their actions except the insane or mentally retarded.

Some gene tests are even being touted for their capacity to help judges predict the likelihood that a convict, if released, will break the law again -- a measure of "future dangerousness" that raises questions about how far courts can go to abort crimes that have not yet been committed.

Most of these tests are still research tools hovering on the margins of admissibility; only a few have made the leap from the lab bench to the courtroom. But scientists' expanding ability to query people's genes, and lawyers' efforts to introduce those findings as evidence, are forcing scholars and judges to think in new ways about the Constitution's protections against self-incrimination and unreasonable search and seizure.

At its extreme, the prospect of getting an accurate handle on future dangerousness challenges the very notions of autonomy and free will that are at the core of any theory of criminal responsibility.

"So far, judges have been cautious," said Karen Rothenberg, dean of the University of Maryland School of Law. But given what Rothenberg calls the "love affair" that courts have had with DNA fingerprints, she and others fear that judges and juries will fall too quickly for the new tests.

"As the cost of gene testing comes down . . . we're likely to see clever defense counselors taking steps to use the outer reaches of genetic testing," said Judge Andre M. Davis of the U.S. District Court for the District of Maryland, speaking at a recent Baltimore roundtable co-sponsored by the law school and the National Human Genome Research Institute. "The question is, can the judge manage the case so the jury is not taken down the primrose path of genetic test results?"

Shadows of Eugenics

Genes have had a rocky relationship with justice, dating at least to the early years of the last century, when eugenics laws encouraged forced sterilizations to break the cycle of "inherited criminality."

"Shiftlessness, nomadism, pauperism all were assumed to have biological and genetic causes," said Jeffrey R. Botkin, a physician and ethicist at the University of Utah School of Medicine.

Today, Botkin said, scientists know that genes are only part of what adds up to human health and behavior. But with environmental influences more difficult to pin down and a torrent of new, if preliminary, DNA findings to choose from, lawyers and judges are once again being tempted to lean heavily on genes to help them make difficult legal decisions, he said.

Continue reading "DNA TESTS MAY OFFER DEEPER EXAMINATION OF THE ACCUSED" »

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

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

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

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

Shame on the San Diego District ttorney's Office.

By Dana Littlefield
STAFF WRITER

April 18, 2008

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

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

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

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

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

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

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

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

Defense lawyer Allen Bloom was unconvinced.

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

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

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

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

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

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

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

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

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

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

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

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

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Posted In: California Cases , Civil Rights , Dirty Tricks in the Crime Lab , In The News , Judicial Misconduct Cases , Police Misconduct Cases , Prosecutorial Misconduct

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Justices Accept Question of Prosecutors as Lawyers or Managers

By LINDA GREENHOUSE
Published: April 15, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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LAWSUIT CHALLENGES PROSECUTORS' IMMUNITY

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

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

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

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

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

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

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

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

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

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Posted In: Civil Rights , In The News , Police Misconduct Cases

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HIDING BEHIND THE SHIELD
John Diaz

Sunday, April 13, 2008

The San Francisco Chronicle Editorial

The law enforcement lobby is going a bit crazy in Sacramento these days. It's working to overturn Supreme Court decisions that affirm the right of you - the taxpayers who pay the salaries of public safety officers - to know who they are, how much they are being paid and the extent of their disciplinary records.

I'm heartened to report that the two legislators who were tapped by law-enforcement lobbyists to carry these two insidious measures appear to be getting squeamish under the initial glare of public scrutiny.

This appears to be yet another instance where certain members of the California Legislature have no idea of what is being done in their names. The process allows for too many bills, too little time to reflect on them and too much deference to the special interests who actually draft the measures.

Tom Newton, general counsel for the California Newspaper Publishers Association, became alarmed last week when he spotted language for a proposed overhaul of AB1855 that was expected to reach the Assembly Public Safety Committee on Tuesday.

Newton described it as a "very efficient" evisceration of two recent Supreme Court decisions that asserted the public's right to find out basic information about law-enforcement officers, such as who they were and how much they were paid.

The measure was sponsored by the Peace Officers Research Association of California (PORAC) and authored by Assemblyman Anthony Portantino, D-La Ca#241#ada Flintridge (Los Angeles County).

Under that proposed amendment, neither a name, salary nor other personnel information about an officer could be "subject to any mass disclosure." Under this proposal, police officers - who are disproportionately represented in six-figure incomes, typically the result of overtime - could not have been included in The Chronicle's database of public-employee salaries (sfgate.com/webdb/citypay) in San Francisco, Oakland, San Jose and Vallejo.

"It's a breathtaking power grab," Newton observed.

Reached by phone Thursday, Portantino said there was a disconnect between his intentions and the proposed amendment's language. "It has not been and will not be" introduced as currently cast, Portantino said of the version of AB1855 that has been circulating.

He insisted his goal was to find a way to "protect undercover officers" from being exposed. If so, Portantino should review the court rulings: Undercover officers are expressly protected from such disclosures under current law.

PORAC's intentions are decidedly more sweeping. It does not believe names should be attached to officers' salaries, even though other government employees' pay levels are a matter of public record. Ron Cottingham, PORAC's president, said the limitations on the use of officers' names was prompted by Web sites such as ratemycop.com, which allows the public to offer its views on officers' performance - positively and negatively, sometimes fairly and sometimes not.

"We are working with the author," Cottingham said Thursday. "It's a sensitive topic. It's a sensitive area of law."

No kidding. The idea that a law could suppress public analysis of a public employee's performance, in a public way, is anathema to this democracy.

Another disturbing bill, AB2377, by Assemblywoman Mary Hayashi, D-Castro Valley, would elevate the legal threshold for a criminal defendant or plaintiff in a lawsuit to obtain records of police misconduct. Hayashi said the "sheriff's association came to me" with this proposed measure because a "huge backlog of requests" was overwhelming the courts.

Jeff Adachi, San Francisco's public defender, fired off a scathing analysis of the bill to the Assembly Public Safety Committee.

Adachi noted that a 1974 state Supreme Court ruling laid the groundwork for the current process, which requires a defendant to establish at a hearing that an arresting officer's personnel record is relevant to the case before it can be released. Access to those records, in criminal and civil cases, is a critical safeguard against police excesses and stonewalling.

A pattern is emerging in Sacramento.

"This is a multipronged effort to shield police misconduct from the public," Adachi said. "If you think about it, the only way police misconduct becomes known is a civil lawsuit or a criminal case where it's one of the disputed issues. Other than that, internal complaints would be undetectable. You would never know."

These two measures are on hold for the moment, at their authors' requests. It seems that neither Portantino nor Hayashi anticipated the potential furor over the proposals that were presented to them.

The law-enforcement lobby is not likely to give up easily. Stay tuned.

Continue reading "CALIFORNIA POLICE TRYING TO HIDE BEHIND THE SHIELD" »

Posted by Mary Frances Prevost | Permalink | Email This Post

Posted In: In The News , Police Misconduct Cases

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