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.
Posts Tagged ‘jury trial’
Juvenile Offenses can be used as Strikes
Juvenile adjudications (convictions) can be used against adult criminal defendants under the “three strikes” law even though juvenile defendants have no right to a jury trial. The California Supreme Court, in People v Nguyen, held that prior juvenile adjudications that qualify as serious or violent felonies (”strikes”) can used to substantially increase an adult criminal defendant’s felony sentence, despite the fact that juveniles are not entitled to a trial by jury.
In Nguyen, the Court emphasized that a defendant is still free to contest the fact of a prior conviction in the adult case, and, of course, a defendant can always challenge whether the juvenile adjudication actually qualifies as a serious or violent felony offense. Juvenile cases from outside of California are example of those types of cases often subject to successful challenge on the issue of whether they qualify as a strike offense. But for now, criminal defense attorneys can no longer successfully raise 5th 6th and 14th Amendment objections against the use of the juvenile case as a strike solely due to the lack of a jury trial right in juvenile court.
The California Supreme Court may get overruled on this issue by the U.S. Supreme Court. Criminal defense lawyers therefore must continue to object to the use of juvenile offense as strikes in order to preserve this issue for appeal, especially for criminal defendants looking at a life sentence.
Prostitution and the Internet
The El Cajon Police Department yesterday published the names and photographs of men convicted of soliciting an act of prostitution and women convicted of agreeing to an act of prostitution. The men were snared through undercover officers posing as prostitutes. The woman were snared by undercover officers posing as Johns. Prostitution involves agreeing to pay for a sex act together with an act in furtherance of the agreement. The City of El Cajon decided that this crime is so serious that they will specially treat those convicted of prostitution to public shame and humiliation. Currently, El Cajon is the only City in San Diego County to publish the names and photographs of the convicted online, and I hope it will remain that way. In my view the police should not be publishing this information. Internet publication of offender information goes well beyond what is otherwise in the public record. The public record of conviction does not contain a photograph of convicted person and is not available to anyone with a computer, nor does it need to be. Moreover, internet information may live forever in cached sites. A person is entitled to clear their record though rehabilitation and expungement without being permanently stigmatized. In San Diego, Criminal defense lawyers expunge prostitution convictions every day. If you believe that women are exploited by prostituting themselves, you would agree that they are further exploited and victimized by the stigma of publishing their conviction and photo to the world. The majority of these women are teenagers. They deserve a second chance. No one can seriously believe that these women will be deterred from their conduct. The men – Johns – obviously have a lot to lose and arguably are deterred by publishing their names and photographs, but why are they also singled out for this public shaming and those convicted of other crimes ignored? They are obviously also entitled to rehabilitation and expugement without having to suffer beyond their punishment. For my part, this San Diego County criminal defense attorney will continue to fight these matters to jury trial, especially in El Cajon. I have had multiple prostitution juries report to me that they believe the time and money spent prosecuting these matter would be much better spent on other crimes.
Analysis of the Latest Felony Sentencing Case: Traps for the Unwary Criminal Defense Lawyer
The California Supreme Court reaffirmed the principals articulated in the landmark case of Cunningham , supra, by ruling that a defendant was entitled to attack the court’s imposition of the upper term in because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; and further, that in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.
LESSONS FOR THE UNWARY CRIMINAL DEFENSE LAWYER
The case points out the following lessons for criminal defense attorneys:
- A waiver of trial rights on aggravating factors should NEVER be given at the time that defendant enters a plea of guilty or not contest unless clearly bargained for in a plea-agreement AND expressly waived in open court with a fully informed and knowing understanding of what is being waived.
- Carefully consider the factual basis for the plea together with any judicial admission made on behalf of or by the criminal defendant; these words will come back to bite. The attorney must guard against unnecessarily having the client admit to the existence of any aggravating factor, either generally or specifically.
- Cases that proceed to a jury trial will require careful consideration of what aggravating and mitigating factors should be specifically put forward to the jury for their determination; special verdict forms must be crafted depending on the dictates on the case together with tactical considerations.
In this way, an attorney can possibly protect their client against the prosecutor reaching the maximum sentence.
The court began by noting that in Cunningham, 549 U.S. ____ [127 S.Ct. 856] the high court held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence
In the case before the California Court, the trial court sentenced defendant to the upper term of eight years on one charge and one-third of the six-year midterm on each of the other five charges (child molestation), with all terms to be served consecutively, for a total term of 18 years. The trial court selected the upper term because “[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11),” and imposed consecutive terms because the crimes were committed on different occasions or at separate locations. (Cal. Rules of Court, rule 4.425(a)(3).)
At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. Moreover, the defendant did not admit to the existence of any aggravating factor, either generally or specifically.
Decisions of the United States Supreme Court acknowledge that a defendant’s sentence may be increased above the statutory maximum based upon “facts… admitted by the defendant”. (Cunningham, supra, 127 S.Ct. at p. 865, quoting Blakely, supra, 542 U.S. at p. 303.) As discussed above, defendant’s plea of no contest constituted an admission to the elements of the charged offenses only, and not to any additional aggravating circumstances. The Attorney General argued, that defendant’s stipulation to the factual basis for the plea as described by the prosecutor constituted an admission to the aggravating circumstance that defendant took advantage of a position of trust in committing the offense. The court concluded otherwise.
