February 16, 2011

THE CALIFORNIA SUPREME COUERT LETS PROSECUTOR GET AWAY WITH MISCONDUCT

BRIBING JURORS TO IMPOSE DEATH JUST FINE; JUST CLAIM IT'S A JOKE

The California Supremes tell us the issue in this sickening case is whether "the prosecutor in this case improperly tampered with a sitting juror by sending her alcoholic drinks and money, and telling her to return a guilty verdict." Yes, sports fans, we lose! How, you ask?

The prosecutor (an AG) went to a cafe where, it turned out, the juror was a cook. The two met; the AG said he couldn't have any contact with the juror. After having drinks and appetizers, the AG paid and left a (normal) tip, which he told the bartender he should share with the juror, and that the bartender should tell the juror to vote guilty.

Hey, it was all a joke! Can't you tell? Did I mention that this is a death case? Hey, no problem killing this guy after a juror was bribed. It was just a joke, right? This is easily the outrage of the week, and prosecutorial miscondcut at its worst.

But even more, it set s tone and send s a message to prosecutors that the law and rules of ethics just don't apply to them.

Can you image what would happen if a public defender did this?

People v. Price; 2011 DJ DAR 2409; DJ, 2/15/11; Cal. Supremes

January 22, 2010

TEXAS JUDGES CLOSES COURTROOM EARLY TO AVOID FILING BY DEATH ROW INMATE: OFF WITH HER HEAD!

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.

November 6, 2009

CALIFORNIA CRIMINAL LAW: PLACING A SHERIFF'S DEPUTY IN A CHAIR NEXT TO A TESTIFYING DEFENDANT (OUTRAGEOUS!)


PLACING A SHERIFF'S DEPUTY IN A CHAIR NEXT TO A TESTIFYING DEFENDANT

This was an outrage of the week in 2007, and it's an outrage of this week as well. There was no claim that the defefendant had been disruptive or presented any sort of danger.

Nevertheless, the Alameda County Sheriff had a policy that when in-custody defendants testify, a sheriff's deputy pulls up a chair next to the defendant in the witness box, and sits there throughout the defendant's testimony.

Incredibly, the California Supreme Court hold that this wasn't shackling and was just fine, because, get this, it's not inherently prejudicial. And maybe the jurors thought
that the bailiff was there to protect the defendant. From the jurors?


What?

People v. Stevens; 2009 DJ DAR 15705; DJ, 11/6/09; Cal. Supremes

October 30, 2009

PENNSYLVANIA SUPREME COURT THROWS OUT 6500 JUVENILE CASES BECAUSE OF JUDICIAL CORRUPTION

COURT THROWS OUT 6500 JUVENILE CASES BECAUSE OF JUDICIAL CORRUPTION

The PA Supreme Court just threw out 6500 juvenile delinquency cases after
two judges were indicted for taking more than $2.6 million in kickbacks from
private detention facilities to lock the kids up.

The juvenile judges had a plea deal for 7 years in prison which was rejected
by the federal judge as too lenient.

http://www.abcnews.go.com/2020/pa-supreme-court-throws-thousands-juvenile-delinquency-cases/Story?id=8952028&page=2

To see the full story, click HERE.

September 23, 2009

JUDGE ORDERS CRIMINAL DEFENSE ATTORNEY NOT TO SPEAK IN DEATH PENALTY TRIAL

Man on trial for his life in Berkeley
By Robert Behre, The Post and Courier, September 22, 2009

MONCKS CORNER -- As opening arguments began Monday in the death penalty trial of Colin Broughton, defense attorney Bill McGuire said he agreed with much of what the prosecution has asserted in court….

If the jury convicts Broughton, 25, of murdering his aunt, Shirley Mae Birch, a second phase of the trial will begin, and jurors will decide if Broughton should serve a sentence of life in prison or be put to death.

Any death sentence would be appealed, and recent behind-the-scenes maneuvering in the case has raised the question of whether this death sentence would hold up.

Before the trial began, a judge told one of Broughton's three attorneys, Charleston County public defender Beattie Butler, that he may not speak in court unless a judge questions him….

Rauch Wise, a Greenwood lawyer on the board of the National Association of Criminal Defense Lawyers, said the order banning Butler from speaking could be fertile ground for an appeal, particularly because the order didn't come in response to any disruptive behavior by Butler in the case.

"I just think it goes against American tradition to tell a defendant that you can't be heard by competent counsel who is there to defend you in the courtroom," Wise said. "It just simply makes no sense."…

http://www.postandcourier.com/news/2009/sep/22/man-on-trial-for-his-life-in-berkeley/


February 24, 2009

JUDGE CAN ONLY GO SO FAR WHEN QUESTIONING WITNESSES

HERE'S AN OLDIE, BUT A GOODIE.

The trial court extensively cross-examined defense witnesses, repeatedly disparaged defense witnesses, and belabored points of evidence adverse to the defense. This was intervening by the court as an adversary to such an extent that it violated the rule that the trial court cannot align itself with the prosecutor.

People v. Santana (2000) 80 Cal.App.4th 1194
04_09_21_SwordInjustice-X.gif

February 20, 2009

FEDERAL LAW: FRAUD-HONEST SERVICES WIRE FRAUD

Honest services fraud occurs when an employee deprives his employer of its right to have its affairs conducted “free from deceit, fraud, dishonesty, conflict of interest, and self-enrichment,” and consistent with the employee’s fiduciary duties to the employer. United States v. Woodward, 149 F.3d 46, 54 (1st Cir. 1998).

In cases involving public officials, the theory relies on the idea that “a public official acts as ‘trustee for the citizens and the State… and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to them.” United States v. Silvano, 812 F.2d 754, 759 (1st Cir. 1987) (quoting United States v. Mandel, 591 F.2d 1347, 1363 (4th Cir. 1979)).

The Court agrees with defendant that when government theory is that public official accepted money in exchange for influence, an implicit quid pro quo is required. But it need not be explicit, and jury instructions here were sufficient.

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

August 1, 2008

KICKING OFF ALL SPANISH SPEAKING JURORS IS BIAS, COURT RULES

Finally, here is a Batson (476 U.S. 79)/ Wheeler (22 Cal.3d 258) win! The DA kicked off all the Hispanic jurors who spoke Spanish, on the basis that he was concerned about whether they would accept the interpreter's version and not interpret themselves.

The Court of Appeal holds that this IS group bias and is racist. Reversed!

People v. Gonzales; 2008 DJ DAR 11966; DJ, 8/1/08; C/A 3rd

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April 19, 2008

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

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

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

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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" »

January 29, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?

The California Fourth District Court of Appeal holds in this bizaare case that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion.

The defense counsel invoked the Fifth Amendment on cross examination, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense.

People v. Seminoff, 2008 Cal. App. LEXIS 144 (4th Dist. January 29, 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor's questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Basset was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court's previous rulings, she was willing to answer questions about whether she intended to sell the marijuana.

However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.”

The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor's questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant's testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

But it won't. It should, at least, be depublished.

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?" »

November 27, 2007

NEW YORK JUDGE BOUNCED FROM BENCH AFTER 'INEXPLICABLE MADNESS'; BOOKED COURTROOM AFTER CELL PHONE RANG

NIAGRA FALLS, N.Y — A judge who jailed 46 people who were in his courtroom when a cell phone call interrupted proceedings was removed from the bench Tuesday by a state commission.

Niagara Falls City Court Judge Robert Restaino "snapped" and "engaged in what can only be described as two hours of inexplicable madness" during the March 2005 session, Raoul Felder, chairman of the state Commission on Judicial Conduct, wrote in the decision to remove Restaino from the $113,900-per-year post.

A phone rang while Restaino was hearing the cases of domestic violence offenders who had been ordered to appear weekly to update the judge on the progress of their counseling. A sign in the courthouse warns that cell phones and pagers must be turned off.

"Everyone is going to jail," Restaino said. "Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

When no one came forward, Restaino ordered the group into custody, and they were taken to jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to another jail.

Restaino ordered them released later that afternoon.

Restaino told the state panel he had been under stress in his personal life.

His attorney, Terrence Connors, said Restaino would appeal.

Um, say what? I think what goes 'round should come 'round. Let's toss this nut in the pokey for a day.

October 31, 2007

SAN DIEGO JUDGE JOHN EINHORN REVERSED AGAIN

In yet another reversal fro San Diego Judge John Einhorn, the California Court of Appeal, Fourth District, Division One, said because the prosecution did not fully utilize Penal Code section 1334 et seq. (Uniform Act to Secure the Attendance of Witnesses from without the States in Criminal Cases) by requesting that a witness be taken into custody even though the witness had made it clear she would not appear, it did not show due diligence.

San Diego Judge John S. Einhorn erred in allowing the government to introduce prelim testimony. What, Judge Einhorn helps the prosecution to convict a defendant? Sound familiar? We can always count on Judge Einhorn to help the prosecution (unless the prosecution is being prosecuted, like his dear friend Mr. Loganbach).

Code of Civil Procedure section 1219, subdivision (b), which restricts the court's power to use incarceration to compel testimony of a sexual assault victim does not affect the court's power to order that a victim of a sexual assault be brought before it or seek that the witness be taken into custody.

People v. Cogswell (C.A. 4th, 10/31/07, D049038) 07 C.D.O.S. 12668

October 31, 2007

SAN DIEGO JUDGE JOHN S. EINHORN REVERSED IN SEX CASE

Because prosecution did not fully utilize Penal Code section 1334 et seq. (Uniform Act to Secure the Attendance of Witnesses from without the States in Criminal Cases) by requesting that witness be taken into custody even thought the witness had made it clear she would not appear it did not show due diligence and San Diego Judge John S. Einhorn erred in allowing the government to introduce testimony.

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California Code of Civil Procedure section 1219, subdivision (b), which restricts the court's power to use incarceration to compel testimony of a sexual assault victim does not affect the court's power to order that an alleged victim of a sexual assault be brought before it or seek that the witness be taken into custody.

People v. Cogswell (C.A. 4th, 10/31/07, D049038) 07 C.D.O.S. 12668

September 13, 2007

SEXUAL ABUSE CONVICTIONS REVERSED FOR JUROR MISCONDUCT

Ineffective legal work, juror misconduct cited

By Greg Moran
and Mark Sauer
UNION-TRIBUNE STAFF WRITERS

September 13, 2007

A state appeals court reversed yesterday the 2004 child molestation convictions of a popular Toler Elementary School teacher who is serving a prison sentence of 15 years to life after three separate trials.

Thad Jesperson

The 2-1 decision by a panel of the 4th District Court of Appeal in San Diego was the latest turn in the emotionally charged case of Thad Jesperson, or “Mr. J” as he was known to many at the Clairemont school, which is in the San Diego Unified School District.

Jesperson was put on trial three times by San Diego prosecutors on charges relating to the alleged molestation of eight second-and third-grade students in the 2001-02 and 2002-03 school years.

His convictions involved four of those girls. Charges relating to the other four children were either dropped by prosecutors or ended in acquittals or jury deadlocks.

In an 80-page ruling, Justice Richard Huffman wrote that the verdict had to be thrown out because of a combination of misconduct by jurors and ineffective legal work by Jesperson's lawyer. The defense lawyer did not prevent jurors from hearing videotaped interviews of the children that Huffman said were filled with prejudicial and irrelevant comments.

In the face of the allegations, Jesperson always insisted he was innocent. Yesterday his wife of 20 years was elated.

“I have just been inundated with phone calls from so many wonderful people calling in support,” Sydney Jesperson said from her home in Murrieta. “Our family was so excited by this news.”

“We completely believe in his innocence, as we always have,” she said. “We are finally feeling justice is starting to be served and we continue to be hopeful.”

Continue reading "SEXUAL ABUSE CONVICTIONS REVERSED FOR JUROR MISCONDUCT" »

September 10, 2007

SAN DIEGO JUDGE COMMITS MISCONDUCT BY TALKING TO JURORS DURING DELIBERATIONS - CASE REVERSED

CONVERSATIONS BETWEEN THE JURORS AND THE JUDGE - STRICTLY PROHIBITED!

In one of the strangest cases ever in San Diego County, San Diego Superior Court Judge John Thompson was severly admonished and a felony case reversed based on the judge's improper contacts with jurors during deliberations. What is even more bizaare is that after the defense attorneys somehow found out about this serious misconduct, the judge just couldn't seem to remember what he told the jurors.

Let's set the scene. The jurors in a felony case were hung. They just couldn't decide what to do. What normally occurs is that the trial judge calls the defense attorney and the prosecutor back into the court, and then calls the jury in to inquire if additional deliberations would help.

Not in this case. The trial judge decided to take matters into his own hands and just bypass the defense attorney and the prosecutor. Who needs 'em. Forget the defendant, while we're at it. The jury said they were hung and they had questions. So the judge offered to go and talk to the jury, and to give them examples of malice, without counsel or the reporter present. And the judge did. Six times.

Lo and behold, the jury came back guilty. When everyone tried to reconstruct what the judge had told the jury - all six times, over and over and over again - well, the judge wasn't too clear on all that. Isn't it amazing how one's memory fails when one is caught with one's pants down? Amazing how that happens.

The California Court of Appeal is astounded and amazed. The California Court of Appeal is upset. Excuse me, judge, but didn't you know that this is interfering with the deliberative process of the jury? The Califoria Court of Appeals reverses the conviction since the inability to reconstruct precisely what the judge said precludes meaningful appellate review.

Practice Pointer: Don't let the judge chat up your jury in your absence, OK?

People v. Bradford; 2007 DJ DAR 13969; DJ, 9/10/07; C/A 4th

July 28, 2007

SAN DIEGO JUDGE TIM CASSERLY UNVEILED FOR COMMITTING MISCONDUCT AS PROSECUTOR IN SAN DIEGO MURDER CASE

July 24, 2007

Lawyers for a man incarcerated for 16 years for rape and murder say they have uncovered evidence that could exonerate him – evidence that was not turned over at his 1993 trial by a prosecutor who is now a Superior Court judge in Vista, Timothy Casserly.

Samson Dubria received the jury's verdict in 1993.

The information is the newest development in the long-running case of Samson Dubria, 44, a doctor serving a sentence of life without the possibility of parole in the killing 16 years ago of traveling companion Jennifer Klapper in a Carlsbad motel room.

Dubria's lawyers claim prosecutors deliberately withheld medical evidence from the defense during the high-profile trial, prompting a local judge to order the San Diego District Attorney's Office to explain why the murder conviction should not be overturned.

Prosecutor Tim Casserly, who became a judge three years after the trial, told jurors that Dubria gave Klapper a fatal dose of chloroform so he could rape her. Now defense attorneys say that they have evidence the 20-year-old woman had a heart problem and that the chloroform found during her autopsy could have come from contamination in the Medical Examiner's Office.

In issuing his order to prosecutors last week, Superior Court Judge Richard Whitney pointed to the allegation of withheld evidence, information about the autopsy and the testimony of the deputy medical examiner on the case.

Whitney's ruling is the first step in what could be a long – but significant – process for Dubria.

“In the overwhelming majority of cases, you don't get this far,” said Justin Brooks, a executive director of the Innocence Project at California Western School of Law. The organization has won the freedom of five inmates long after they were convicted.

Continue reading "SAN DIEGO JUDGE TIM CASSERLY UNVEILED FOR COMMITTING MISCONDUCT AS PROSECUTOR IN SAN DIEGO MURDER CASE" »