Posts Tagged ‘murder’

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

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

Now that the Los Angeles Coroner has ruled Michael Jackson’s death a homicide, what charges will be contemplated by the Office of the District Attorney? Two charges are possible. A second degree murder charge is possible if it can be proved that injecting Jackson with the powerful anesthetic propofol was done under circumstances where the drug giver was actually aware of the risk of death from use of the drug but consciously disregarded that risk and unlawfully gave him the drug anyway. Involuntary manslaughter is possible where the lawful administration of the drug was conducted in a negligent manner. The punishment for second degree murder is 15 years to life in prison. Involuntary manslaughter is punishable by up to 6 years in prison. Other than punishment, the big difference between the two charges obviously concerns the state-of-mind of the defendant, whether he or she understood but ignored the actual risks involved with giving a person the drug. Presumably, a doctor would have a subjective awareness of the risks but at the same time would take actions to safeguard the patient’s welfare. The charge one would therefore expect to see in this case – if any -will be involuntary manslaughter. The circumstances relevant to determining what charge to file will include: who administered the drug, how they acquired the drug, whether they were aware of the nature and type of drug being administered, the side effects of the drug, their knowledge of the effects, the actual dosage, whether the drug was administered in a prudent and careful manner, and other factors that may bear on their subjective awareness of the dangers presented by the drug and on the issue of negligent supervision of the patient. The criminal defense attorney for Jackson’s cardiologist doctor, Conrad Murray, says his client gave Jackson nothing that “should have” killed him. In other words, the lawyer argues that the issue is whether an involuntary manslaughter occurred or no crime at all.

No CommentsTags: anesthetic, cardiologist, charges, criminal attorney, criminal defense lawyer, death, district attorney, Dr. Conrad Murray, drug, homicide, involuntary manslaughter, Los Angeles Coroner, Michael Jackson, murder, negligent, office, patient, propofol, punishment, risks, second degree murder, side effects, state-of-mindRead 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