Posts Tagged ‘law enforcement’

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 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

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

A kidnapped girl was discovered 18 years after her abduction at the home of a convicted parolee and registered sex offender despite the fact that law enforcement has repeatedly been in contact with the man and has visited his home on many occasions over the years. That law enforcement for almost two decades missed Jaycee Dugard at the home of Phillip and Nancy Garrido is no great surprise to criminal lawyers. The shared resources of the U.S. federal  and Nevada state authorities  was not enough to effectively manage this parolee.  California – like every other state – has overburdened our police, probation and parole authorities by continuing the trend toward retribution and punishment over rehabilitation and reformation. Non-violent three strike offenders overburden prison officials. Juveniles are increasingly being punished as adults within the already crowded criminal courts. New enhancements and new Penal Code provisions and harsher punishment are continually being written into law. The list of those offenses that require registration for life as a sex offender is ever expanding. Consequently, prison, parole and probation officials cannot keep up with the workload and those persons convicted of misdemeanor non-violent sex offenses are draining resources from the supervision of high risk offenders.  As California clearly does not have more money to throw at these criminal justice problems, perhaps it is time to re-think how to best allocate the money we do have.

No CommentsTags: California law, court, criminal law, criminal lawyer, enhancement, high risk offenders, Jaycee Dugard, Juvenile Law, kidnapped, law enforcement, Nancy Garrido, offenses, parole, penal code, Phillip Garrido, police, probation, punsihement, reformation, rehabilitation, retribution, sex offender, sex offense, sex registration, three strikesRead More

The United States Supreme Court in on the verge of abolishing the exclusionary rule prohibiting the use of unlawfully obtained evidence against a criminal defendant. The recent case of Herring v. United States portends a court trend in favor of illegal search and seizure at the expense of the integrity of the entire criminal justice system. This is a dangerous and unnecessary trend. Law enforcement has long taken as their own the maxim “give them an inch, they take a mile.” For example, police already have such a long list of permissible justifications for traffic stops, car searches, home invasions and general rummaging through your belongings that they can always come up with an after-the-fact justification hiding the real basis for their conduct, and thereby making illegal conduct extremely difficult to uncover even for a very experienced criminal defense attorney. We see this type of conduct, for example, in “wall stop” cases, where the police hide illegal conduct by masking their activity behind a second, outer layer of law enforcement. Nonetheless, law enforcement is deterred to the extent that they may have to justify their activity in a court against the exacting scrutiny of an aggressive criminal defense lawyer; there is really no other effective deterrent to the police from invading your privacy as they see fit.  The Herring decision threatens to erode accountability for police misconduct.

Perhaps the new composition of the Supreme Court, with Justice Sotomeyer, will resist repeal of the exclusionary rule. Time will tell.

No CommentsTags: agressive criminal defense lawyer, car searches, criminal justice system, defense attorney, exclusionary rule, Herring v. United States, home invasions, illegal search and seizure, Justice Sotomeyer, law enforcement, police misconduct, privacy, traffice stops, U.S. Supreme Court, wall stopsRead More

In serious drug prosecutions, criminal defense lawyers cannot blindly trust police crime lab reports supposedly confirming that a substance is really cocaine, methamphetamine, marijuana, or heroin.  For that matter, anything coming out of the crime lab, such as blood toxicology results, DNA results and chain-of custody receipts should not be blindly trusted, either. The United States Supreme Court , in Melendez-Diaz v. Massachusetts, recently confirmed that crime  lab reports are so important that the analyst that prepared the report and did the testing must be called as a witness and subjected to cross examination by the defense attorney for the results to be used as evidence. The Court held that the Confrontation Clause of the Sixth Amendment of Constitution guarantees this right to defendants seeking to challenge crime lab results. The Court was concerned with the possibility that the report could have been faked or the test may not have been completed properly, and cross examination is the best vehicle for proving problems with the report.

Indeed, here in San Diego, I have recently come into possession of material indicating that a lab analyst who formerly produced reports that were regularly relied upon by San Diego prosecutors, committed perjury while working at another job by faking lab reports and results of confirmatory lab tests. (In crime labs, the presumptive test alone is not valid to conclude the actual presence of the controlled substance; a more reliable, confirmatory test is needed). The information showed that 1000’s of tests were faked.  These false lab reports of drug results are clearly relevant to proving that his work product – in fact anything he touched – cannot be trusted. In many drug cases, the alleged controlled substance may be available for retesting or the defense may conduct their own tests. The defense lawyer should also consider a complete review of the chain-of-custody for each and every lab item sought to be used by the prosecutor.  

The lesson a bad lab analyst imparts only reinforces what every good defense lawyers knows: don’t assume that any piece of evidence is infallible.

Contact us for help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: analyst, chain-of custody, cocaine, confirmatory lab tests, confirmatory test, Confrontation Clause of the Sixth Amendment, controlled substance, crime lab, criminal defense lawyer, criminal lawyer, cross examination, Domenic J. Lombardo, Drug Cases, drug prosecutions, false lab report, heroin, lab report, lab reports, law enforcement, marijuana, Melendez-Diaz v. Massachusetts, methamphetamine, perjury, presumptive test, san diego criminal defense attorney, san diego criminal lawyer, San Diego Police Crime lab, San Diego prosecutorsRead More

Criminal defense lawyers uniformly advise their clients to provide information to law enforcement only by and through an attorney, and for good reason. Many cases are prosecutable only because the defendant gave the police what they needed to make their case. In the past, attorneys did not have to worry about law enforcement sneaking behind their back to interrogate their criminal defendant clients, because the law protected the defendant from law enforcement using that information without the defendant’s express consent. But just in the past week, here in San Diego, I have been informed of two occasions where law enforcement has tried to question a client of mine without my prior knowledge or consent. In the past, making a run around the lawyer would have been clearly illegal conduct.

No longer. Law involving the Sixth Amendment right to counsel was recently changed by the United States Supreme Court’s decision in Montejo v. Louisiana. The Court in Montejo overruled the famous Supreme Court case Michigan v. Jackson, where the Court held police are prohibited from initiating an interrogation of a defendant once an attorney has been appointed. Prior to Montejo, in situations where counsel is appointed by the court, there was a presumption that any later waiver of the Sixth Amendment right to counsel is involuntary. As a result of this recent decision, in such cases where counsel is appointed for a defendant, the police are allowed to later interrogate the defendant when the defendant consents. The presumption that the statement was involuntary is no longer valid. This decision has a tremendous impact on criminal defendants as many defendants would assume that once counsel is appointed police interrogations are not permitted without counsel present. This decision exposes criminal defendants to less protection from interrogations by police after counsel is obtained.

Criminal defense attorneys must take a lesson from Montejo and advise law enforcement at the earliest stage in the proceedings that that the defendant expressly invokes his or her right to counsel and does not consent to any law enforcement contact without the attorney.

Indeed, the stakes for some defendants are high: Mr. Montejo himself was charged with first-degree murder, was convicted, and sentenced to death, thanks partly to his cooperation with the police. The court had appointed counsel but the police didn’t wait to question him. The police paid him a visit and obtained not only a letter of confession but took him on a field trip to locate the murder weapon. He later met his attorney for the first time. The Louisiana Supreme Court rejected his claim that his statements and gun  should have been suppressed under the rule of Michigan v. Jackson, which forbids police interrogation after the right to counsel has been invoked. It held that Jackson’ s protection is not triggered unless the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right, and here Mr. Montejo apparently did not actually make the request or assertion. The Court overruled Jackson. And Montejo sits on death row.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: confession, cooperation with police, criminal case, criminal defendant, criminal defense, criminal defense attorneys, criminal defense lawyer, criminal lawyer, death penalty, evidence, interrogate, interrogation, jackson, law enforcement, montejo, murder, right to counsel, right to remain silent, san diego criminal defense attorney, san diego lawyer, Sixth AmendmentRead More

Harvard professor Henry Louis Gates Jr., an African-American scholar, was recently arrested at his residence by Cambridge police officer Sergeant Crowley who was investigating a reported break-in. Professor Gates was arrested after he yelled at the investigating officer repeatedly from inside the residence. He showed identification and then reportedly resisted a demand to step onto the porch. He did eventually follow the officer outside, where Gates continued to upbraid the officer. “It was at that time that I informed Professor Gates that he was under arrest,” the officer wrote in the report.

Law enforcement offices throughout the country no doubt sympathize with the officer’s plight in this situation. The officer thought he was going to get a “thank you” and Professor Gates thought he was a suspect because of his race. So if this case occurred in San Diego County,  under California law, on these same facts, who was acting unlawfully: Professor Gates or the police officer? This is a routine type of question for criminal defense lawyers. San Diego criminal attorneys routinely defend cases that begin with an officer’s claim that the defendant was not cooperating while they lawfully preformed their duties.

While it is not unlawful to yell at a police officer in anger for a perceived wrong such as racial profiling, it is unlawful under California law, to willfully resist, delay, or obstruct a sworn law enforcement office, or an emergency medical technician, in the discharge or attempt to discharge any duty of his or her office or employment. This provision is commonly referred to as “resisting arrest.” Some law enforcement officers no doubt justify arrests under this provision for those that “flunk the attitude” test. Conviction of misdemeanor resisting arrest carries a fine not exceeding one thousand dollars ($1,000), or imprisonment in a county jail not to exceed one year.

Professor Gates may correctly argue, however, that for a resisting arrest conviction to be valid, a criminal defendant must have resisted, delayed, or obstructed a police officer in the lawful exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148 (a)(1)(resisting arrest). Excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. An arrest made with excessive force is therefore unlawful. It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest. Professor Gates would claim that after he showed his identification the officer’s duties ended and the excessive force began.

Arresting officer Crowley, on the other hand, may correctly argue that “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not necessarily rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a Civil Rights lawsuit action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. Sergeant Crowley would thus contend that the professor delayed and obstructed a lawful investigation by failing to cooperate before the arrest outside on the porch.

In any event, no matter who has the best legal argument, any criminal defense lawyer knows that a jury will apply a common sense approach to evaluating the conduct of both of the parties. Clearly, in this case, Professor Gates would not be convicted by a jury of his hypothetical California peers, whether he is absolutely right on the law or not.  And, as California juries are historically reluctant to side against cops, Officer Crowley would also likely escape any claim for money damges based upon a Civil Rights violation.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: 148(a)(1), California law, criminal defense lawyer, delaying and officer, Domenic J. Lombardo, excessive force, law enforcement, misdemeanor resisting arrest, obstucting an officer, police officer, Professor Gates, san diego criminal defense attorney, san diego criminal lawyer, Sergeant Crawley, unlawful forceRead More