Criminal Defense Legal News

Dec32009

D.A. Boycotts San Diego Criminal Trial Judge

Published by Domenic J. Lombardo under San Diego Criminal Defense Issues

Local attorneys and judges are mystified as to why San Diego County District Attorney Bonnie Dumanis ordered her prosecutors to file peremptory challenges in all criminal cases assigned to the Honorable Judge John S. Einhorn. Judge Einhorn is known as a tough, smart judge who routinely handles complex, high-profile criminal matters. He has an excellent reputation in the legal community. So why would the D.A. want one of the best trial judges removed from hearing criminal matters?

Criminal defense lawyers speculate that the D.A. thinks this tough judge wasn’t tough enough in recently denying a defense attorney’s request to bar the prosecution from retrying a murder case. Yes – the Judge denied the request – but that apparently wasn’t good enough for the prosecution. The D.A. believes that the Judge should never have entertained the motion in the first place. Why? Because the hearing on the motion forced the D.A.’s office to defend allegations that exculpatory evidence, which resulted in a nullified verdict, was deliberately withheld from the defense. The D.A. would rather have avoided the hearing entirely by saying, in effect, “trust us, we didn’t cheat.” The boycott therefore appears to be retaliation against the Judge for Dumanis having to defend the conduct of her deputies. For now, the D.A. refuses to reconsider her boycott or give reasons why the boycott exists at all.

Nov142009

No Surprise: Sexual Assault Lab Kits Remain Untested for DNA

Published by Domenic J. Lombardo under Sex Crimes

CBS News reports that there are over 6,000 rape kits from active investigations of sex crimes that remain untested throughout the country. The New York Times reports significantly more. The reports indicate the kits are from reported sexual assault cases that have not been prosecuted. The kits typically contain body fluid, hair and fiber evidence taken from complaining witnesses to sexual assault. The evidence is collected in order to identify the assailant. Thousands of kits remain untested in Los Angeles alone. The CBS report implies that the San Diego Police crime lab is attempting to clear their backlog only to avoid adverse publicity while both reports lament an inexcusable failing of law enforcement to conduct DNA testing in every case. A bipartisan bill is before the Unites States Senate to fund clearing the backlog of untested kits.

The existence of numerous untested kits is hardly a surprise to anyone in the criminal justice system. The reality is that the existence of untested rape kits does not mean that law enforcement is failing the public in every single case. Many of the kits remain untested because the results will make no difference in how the case is handled. Not every case of reported sexual assault is legitimate, many alleged victims falsely claim assault, and many others simply change their story. Of course, many legitimate assaults are accurately reported, but the reality is that many, many cases will not be prosecuted no matter what the lab results. Not every kit should be tested.

As a criminal defense attorney, I believe that the real problem is what should be done with kits where testing may lead to prosecution or exoneration. The results of testing these kits will make a difference to the innocent accused, as well as the culpable, and justice demands that these kits be afforded extra care. These kits should obviously not be rushed through a forensic examination without strict protocols ensuring the accuracy, completeness and reliability of DNA results. Moreover, a responsible decision must be made on how much testing should be afforded each kit. For example, rape kits contain hair, fiber, and bodily fluid evidence. Other evidence, such as clothing and bedding may be impounded in evidence with the kit. Ideally, each item including the kit should be examined for DNA and other trace evidence, and then be tested. But as crime lab budgets are tight, this clearly will not happen.

The crime labs may need to do much more than the minimal DNA work on a kit, depending on the case. As crime analysts take their cue from law enforcement on what to test, sex crime detectives will need to examine each particular case to decide how much testing to afford not only to the kit to but to the rest of the evidence in the case. The decision on what to test must be guided by consideration whether the results may corroborate the claim made by the complaining witness and whether the results may refute the claim. At this early stage in the prosecution, the sex crimes detective is the only person with access and authority over the evidence. The detective is best situated to evaluate the strengths and weaknesses of the claim, and therefore is best situated to decide what to test. Unfortunately, many in law enforcement feel that the government is not in the business of gathering evidence exonerating to the accused. Experienced criminal defense lawyers know that innocent persons are prosecuted when police selectively test some evidence while ignoring other items of crucial evidentiary value. Ignoring evidence that will impeach a claim does a disservice to the entire justice system. In the end, with every single kit submitted to a lab for testing, law enforcement will be making a judgment call that should aim to protect the innocent while also bringing the culpable to justice. Decisions on what to test must be made with the goal not only of prosecuting the true offender, but of protecting the innocent.

Nov122009

Drugs and Gun Found During Illegal Search Admissible Evidence

Published by Domenic J. Lombardo under Drug Cases

The Ninth Circuit court of Appeals just upheld the admissibility of drug and firearm evidence in a case where law enforcement conducted an illegal search of a vehicle under the doctrine of inevitable discovery. In United States v. Ruckes, the Court followed the recent Supreme Court decision of Arizona v. Gant. Gant limits searches of automobiles, pursuant to the driver’s arrest, to situations where the driver is “unsecured and within reaching distance” of the interior of the car at the time of the search or where it is reasonable to expect evidence related to the crime underlying the arrest might be found in the vehicle. In Ruckes, the driver was arrested for driving without a license and secured in the back of a patrol vehicle. The Court found that since no evidence related to unlawful driving might be found in the car, and since Mr. Ruckes posed no danger of getting a weapon from the car at the time of the search, the search would otherwise be illegal under the Gant decision. However, the Court allowed evidence of cocaine base and possession of a gun to be used against Ruckes under the doctrine of inevitable discovery, a recognized exception to the Fourth Amendment’s warrant requirement. Inevitable discovery exists in Ruckes because an inventory search of the car would have revealed the evidence independent of the illegal conduct of the officer.

The lesson Ruckes teaches is that criminal defense lawyers will have to be alert for the application of inevitable discovery in vehicle search cases, especially as there are multiple provisions under California law allowing for the towing and impounding of cars upon the arrest of the driver. Still, criminal attorneys can try to establish that the impound search itself was a pretext to look for other evidence, as pretext law is still favorably applied in some limited situations, such as inventory searches. If it can be proved that the inventory search was conducted for a pretextual purpose, the search would be illegal so therefore could not be upheld under the inevitable discovery doctrine and the court would be obligated to rule for suppression of the evidence.

Nov102009

Mexico Legalizes Drug Possession for Personal Use

Published by Domenic J. Lombardo under Drug Cases

The movement to decriminalize drug use gained a major ally. The Republic of Mexico decriminalized possession of small amounts of marijuana, cocaine, heroin and other drugs. Drug rehabilitation, rather than punishment, is now “encouraged,” and a third drug possession offense will subject the offender to drug treatment, although no way to enforce that provision was written into the new law.

Personal use is defined as possession of less than 5 grams of marijuana, ½ gram of cocaine, 50 milligrams of heroin, 40 milligrams of methamphetamine and 0.015 milligrams of LSD.

The Mexican government enacted the law in an effort to combat organized drug crime, but as the demand for the drugs is almost entirely coming from north of their border, the law won’t dent cartel profits anytime soon.

Nov92009

Are Juveniles Lawfully Subject to Life without Parole?

Published by Domenic J. Lombardo under Juvenile Law

The United States Supreme Court will entertain oral argument today on the issue of whether a life sentence without parole for a juvenile offender convicted of a non-murder offense violates the Eight Amendment’s prohibition on cruel and unusual punishment. The Court has already decided that juveniles are not subject to the death penalty.

Terrence Graham was 16 years old when he was convicted of burglary and attempted armed robbery. He received a one year sentence. Shortly after his release he earned a sentence of life without parole upon being convicted of armed residential burglary and robbery. His criminal defense lawyers argued on appeal that the life sentence, for any juvenile, constitutes cruel and unusual punishment.

In 2005, the Supreme Court issued a deeply divided opinion when deciding that juveniles cannot be executed. The composition of the Court, of course, has changed radically in the last several years. Mr. Graham may have wished for a speedier appeal process. Oral arguments in his case, and a transcript of the arguments, will be available at http://www.oyez.com.

Nov82009

Criminal Court Diversion for Combat Veterans

Published by Domenic J. Lombardo under San Diego Criminal Defense Issues

The San Diego County Public Defender’s, together with private criminal defense lawyers and local veterans groups, is reportedly putting together a legislative proposal for the diversion of criminal cases for combat veterans. The Penal Code already provides for alternative sentencing for combat veterans suffering from post traumatic stress disorder (PTSD), substance abuse, or psychological problems stemming from “serving in a combat theatre in the United States Military.” The new proposal would go much further in allowing for the diversion of criminal charges for qualifying veterans in the same way that diversion operates for non-violent drug possession offenses. Typically, a diversion qualified drug defendant pleads guilty and sentencing is deferred while the defendant is ordered to complete a treatment program and stay out of trouble for at least 18 months. After successful diversion, the guilty plea is withdrawn and the “arrest is deemed never to have occurred.” Combat veterans who suffer from the above mentioned problems would be allowed diversion in a wide range of cases, from petty theft and burglary to domestic violence. The San Diego criminal justice system has accommodated Vietnam veterans subject to minor prosecutions in the annual Stand Down Court. Accommodating all combat veterans for a broader range of cases is the stated goal of the defense bar. To succeed, the proposal would likely need the support of Office of the District Attorney and law enforcement groups. Hopefully all parties can agree that diversion for combat veterans is in the interests of justice.

Oct22009

Roman Polanski has a Fighting Chance and Nothing to Lose

Published by Domenic Lombardo under Recent Criminal Law Developments, Sentencing

The man famous for his Hollywood movies, murdered wife, and life as a fugitive may be extradited from Switzerland to a Los Angeles, California courtroom. Polanski faces sentencing in a felony sex case over three decades old. He fled the United States jurisdiction after he pleaded guilty and before the sentencing hearing. He has a few options, however.

His lawyer’s first option will be to move to dismiss his case. The misconduct of his judge and a prosecutor in his case provides ample ammunition for a dismissal in the interests of justice.

He may also move to withdraw his plea. The law provides that a criminal defendant may withdraw his or her guilty plea for “good cause.” Good cause is an elastic concept, one that will almost certainly embrace the broken promises made by the judge and the other misconduct pervading his prosecution. Withdrawing his plea has some risks, most obviously that he would face charges substantially more serious charges than the one he is now facing (charges that will carry mandatory prison time – no probation). On the other hand, his attorney may calculate that the D.A. does not have sufficient evidence anymore to prosecute the case to verdict. Polanski would then be in even a better position than he is now – no conviction on his record.

Polanski’s last option is to face the sentencing squarely. Other Los Angeles judges have made favorable findings in his case, even in his absence. Polanski’s attorney can without doubt demonstrate an abundance of reasons that favor probation both as to the offense and the offender. An astute criminal lawyer may conclude, therefore, that the risk of a state prison sentence is very remote, and the likelihood of probation, and credit for time served, is very high.

The prosecution may elect to file a felony charge for failing to appear in court, but this will likely be defeated by their own failure for many years to make any real attempt to bring him to justice.

The battle is far from over, but Polanski is unlikely to suffer any further punishment in this case.

Oct22009

Did Texas Execute an Innocent Man?

Published by Domenic Lombardo under Recent Criminal Law Developments

Governor Rick Perry does not want you to find out if Texas carried out the execution of a legally and factually innocent person. The Texas governor replaced the head of the Texas Forensic Science Commission just days before he and other experts were scheduled to testify at a hearing called to investigate whether the state killed an innocent man, Cameron T. Willingham.

Politics almost certainly played a role as the Governor is running for the republican nomination in his reelection bid. The maneuvering for a replacement will delay the hearing until after his run for the nomination is over. Keep in mind that the execution of Mr. Willingham took place as on the Governor’s watch.

The execution of Mr. Willingham proceeded despite the so-called safety-net of clemency. A petition for clemency was denied by the Governor after the Texas Parole Commission summarily voted against clemency despite clear and compelling evidence of innocence. In fact, the Commission reportedly made its recommendation admittedly without reviewing any of the exonerating evidence or even meeting for a vote.

The Willingham case was not simply one where his lawyer failed to defend him competently at the criminal trial. Exonerating evidence – good enough for Florida – freed Gerald Lewis from a death row prison in a Florida case remarkably similar to Willingham’s. The same evidence at issue in both the cases involved the unscientific and false conclusions of the arson investigators at the original trials. Although these conclusions were resoundingly refuted by actual science, the Florida process resulted in freedom for Lewis and death for Willingham. Willingham lived in the wrong state.

United States Supreme Court Justice Antonin Scalia has taunted death penalty opponents to produce a factually innocent person executed in the modern age. Mr. Willingham is likely that man. For an in-depth review of his case, refer the excellent September 7, 2009, New Yorker magazine article, Trial by Fire, by David Grann. No matter what opinion you have of the death penalty, your faith in the Government’s ability to provide due process will certainly be shaken.

Sep222009

Drug Detectives play Wii while Executing a Search Warrant

Published by Domenic Lombardo under Recent Criminal Law Developments

Drug investigators have been caught on tape playing Wii games while executing a search warrant at the home of Michael Difalco. Polk County Sheriff Grady Judd lamely defends his investigators by claiming that the Wii gamesmanship would not invalidate the search. Perhaps the Sheriff should read up on the law.

The Fourth Amendment mandates that a proceeding to search with a warrant is a drastic one and must be carefully circumscribed so as to prevent unauthorized invasions of the “sanctity of a man’s home and privacies of life,” to quote a U.S Supreme Court case that has been good law for over 125 years. When law enforcement execute a search warrant in bad faith by conducting a general exploratory search, such a flagrant disregard for the scope of the warrant may therefore justify total suppression of all evidence seized as a deterrent to such police misconduct. An exploratory search is evidenced by law enforcement rummaging through game boxes and consoles, inserting computer and entertainment resources in game players and computers, and then using the equipment. Playing video games belonging to a homeowner whose house is invaded while executing a warrant clearly involves conduct completely unrelated to the scope of the warrant. Such an investigation reveals police disregard of the Court’s order, the Constitution, and the rights of the people whose home is being raided. Any astute criminal defense lawyer can tell you that Federal and state constitutional law provides ample precedent for invalidating such a search.

The video can be viewed at: http://www2.tbo.com/video/2009/sep/21/polk-county-drug-bust-54649/

Sep42009

DA Cannot Hide a Bad Expert Witness Behind a Better One

Published by Domenic Lombardo under California Supreme and Appellate Court Cases

In a recent decision handed down from a California Court of Appeals, the Court affirmed a criminal defendant’s Constitutional right to confront an expert witness who has prepared a report relied upon by another prosecution witness. In People v. Dungo, the DA tried at a jury trial to swap a bad witness with a better one. The defendant had admitted choking his girlfriend to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter. Dr. Bolduc, a pathologist, conducted an autopsy on the victim’s body and prepared a report of his findings. Dr. Bolduc, however, never testified at the defendant’s trial. He was the bad witness. Instead the prosecution called Bolduc’s supervisor, Dr. Lawrence, as the good witness. Dr. Lawrence was called to testify about the duration of the choking-which was discovered during the autopsy and bore on the defendant’s culpability-even though Dr. Lawrence was not present during the autopsy. The prosecution chose to use Dr. Lawrence in place Dr. Bolduc because Dr. Bolduc had a disreputable employment record that would undermine his credibility as a witness. The jury found defendant guilty of second degree murder, not manslaughter. However, under the Sixth Amendment to the United States Constitution every criminal defendant has the right to be confronted by, or cross-examine, witnesses against them. In this case, the Court on appeal held that the defendant was not properly afforded this right because he was not provided a chance to cross-examine the person who actually prepared a report which was the basis of another witness’s testimony. The decision of the Court of Appeals not only comports with longstanding precedent, but also highlights an important policy issue-the state’s employment of credible experts, or in this case lack thereof. If the State of California wishes the finding of its experts to be used against criminal defendants, in proceedings which can potentially deprive a person of his or her liberty, than the state should hire only the most credible experts to examine evidence. This should include not only the hiring and retention of experts who are paid by the government, but also, the employees of private companies with which the government contracts to do such “expert” work. If the state for whatever reason relies on experts who are less than competent or less than credible to examine evidence and make findings that can be used in criminal proceedings, than any issues of these experts’ credibility should be known to whoever is deciding the fate of a criminal defendant. In other words, the prosecution is prevented in these situations from swapping a bad witness with a good witness.