Archive for September, 2009

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/

No CommentsTags: constitutional law, court order, criminal defense lawyer, drug detectives, exploratory serach, Fourth Amendment, game player, games, Grady Judd, investigators, law enforcement, Michael Difalco, police misconduct, Polk County Sheriff, scope of warrant, search warrant, suppression of evidence, U.S. Supreme Court, United States Constitution, video games, WiiRead More

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.

No CommentsTags: autopsy, california court, california court of appeal, Confrontation Clause of the Sixth Amendment, credibility, criminal defendant, expert witness, jury trial, manslaughter, murder, pathologist, prosecution, second degree, trial, voluntary manslaughterRead More