Author Archive

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.

No CommentsTags: attorneys, Bonnie Dumanis, boycott, criminal cases, criminal defense lawyers, criminal matters, D.A., deputies, exculpatory evidence, hearing, John S. Einhorn, judge, judges, motion, murder, peremptory challenges, prosecution, retrial, San Diego Criminal Court, trial judge, verdictRead More

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.

No CommentsTags: bodily fluid evidence, CBS News, crimes, criminal defense attorney, criminal defense lawyers, criminal justice system, culpable, detectives, DNA, fiber evidence, forensic examination, hair evidence, imounded evidence, innocent, lab kits, lab testing, law enforcement, New York Times, rape kits, san diego, San Diego Police Crime lab, sex crime, Sex Crimes, sexual assault, sexual assault kit, United States SenateRead More

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.

No CommentsTags: cars, cocaine base, criminal defense lawyer, driver, drugs, evidence, firearm, Fourth Amendment, gun, illegal search, impound search, inevitable discovery, inventory search, law enforcement, Ninth Circuit Court of Appeals, officer, pretext, pretextual purpose, Ruckes, suppression of the evidence, United States v. Gant, vehicle search, warrant requirement, weaponRead More

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.

No CommentsTags: cartel, cocaine, crime, decriminalize drug use, drug treatment, heroin, LSD, marijuana, offender, possession, Republic of MexicoRead More

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.

No CommentsTags: appeal process, attempted armed robbery, burglary, criminal defense lawyers, cruel and unusual punishment, death penalty, Eight Amendment, juvenile, lawyers, life sentence, offender, oral argument, Oral arguments, parole, residential burglary, sentence, transcript, United States Supreme CourtRead More

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.

No CommentsTags: arrest, burglary, combat veterans, criminal defendant, criminal defense lawyers, criminal justice, defendant, diversion, Domestic Violence, drug possession, guilty plea, law enforcement, Office of the District Attorney, petty theft, post traumatic stress disorder, psychological problems, PTSD, San Diego County Public Defender's, Sentencing, Stand Down Court, substance abuse, treatment program, United States MilitaryRead More