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By admin, August 18, 2010 10:34 pm

Check out these 3 great opinions. Let’s use them!!

1. United States v. Maddox - filed August 12, 2010 (9th Circuit) Suppression granted!!!!!
Cite as 09-30284
Full text http://www.metnews.com/sos.cgi?0810%2F09-30284

Where police officer stopped defendant in a motor vehicle for a traffic violation, and handcuffed and securely placed defendant in the rear of the officer’s patrol car, then returned to defendant’s vehicle and inspected the contents of a screw-top vial attached to defendant’s keychain, which was still in the vehicle, the search was not a valid search incident to arrest, and district court did not err in suppressing evidence of substance found inside the vial. Officer’s search of laptop case inside vehicle was not a valid inventory search where officer had nothing but a mere suspicion that defendant might not own the vehicle, there was no community caretaking reason to impound the vehicle, and officer did not consider alternatives to impoundment.

2. United States v. Darling, 2010 U.S. Dist. LEXIS 81658 (N.D. Cal. July 14, 2010)*: Threat to arrest is not consent!!!!
The officer had a hunch there was contraband in defendant’s car, and he told her to turn it over under threat of arrest. This was not consent.
Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest (as opposed to a citation) if she did not. Consent to a search is not voluntary when made under a threat of arrest. The Ninth Circuit has observed that even if an arrest had not yet been made, “consent obtained under threat of subjecting [Defendant] to such an arrest cannot be said to be voluntary.” United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir. 1980); United States v. Soriano, 361 F.3d 494, 602 (9th Cir. 2004) (factors in assessing voluntariness of consent include whether defendant was in custody [see discussion below regarding arrest], whether Miranda warnings were given, and whether defendant was notified that she had a right not to consent).

3. California Court Appeal: People v. Schmitz - filed August 18, 2010, Fourth District, Div. Three
Cite as G040641
Full text http://www.metnews.com/sos.cgi?0810%2FG040641
Parolee status of a front seat passenger does not validate a warrantless search of the back seat area, as parolee sitting in the front passenger seat cannot be viewed as having “joint access and control” over that back seat area. While a parolee is deemed to consent to warrantless searches, mere passenger in a vehicle, who claims neither a possessory nor property interest therein, lacks the “common authority” over the vehicle that would allow him either to consent or object to its search.

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By admin, August 17, 2010 3:00 pm

Charged with 24 counts, former Illinois Governor Rod Blagojevich is convicted of just 1 count: lying to federal agents during the investigation. Had he not talked to them, he’d be off free today.

Hats off to the father and son team of Sam Adams and Sam Adams Jr who defended the politico. They did an amazing job against all odds, as no one was rooting for old Rod.

Excitement occurred as the zeal by Adams was played out dramatically in court just before cloising argument.

The Sun Times reported : Just before he was to begin his closing arguments, Adam clashed with Judge James Zagel, saying he couldn’t abide by the judge’s ruling on an area Adam intended to discuss in his closing. With the jury out of the room, Zagel needled Adam, telling him he didn’t understand the law and warned: “You will follow this order, because if you don’t you will be in contempt of court.”

After court, Sam Adam Jr. said he would go to jail “in a heartbeat” if that’s what it takes.

“My dad did it,” he said, referring to his father and co-counsel Sam Adam Sr., who went to jail in the past for clients. “I have no qualms of going to prison if that’s what’s best.”

The skirmish happened on the same day that prosecutors took several hours to highlight evidence in their case, and a lawyer for Robert Blagojevich worked to convince the panel that his client was nothing but a fund-raiser trying to help out his brother.

Adam argued he should be able to tell jurors that the government mentioned 35 people in its case — including Tony Rezko and Stuart Levine — but never called them as witnesses.

“You cannot draw an evidentiary inference from the fact a witness was not called by the other side when you had an equal right to call them,” Zagel told Adam.

Adam’s father walked over to his son and whispered something and then the younger Adam dug in.

The defense throughout the trial has complained that Zagel has picked on them; failing to sustain their objections, cutting off their cross examinations and reprimanding them in front of jurors.

“With all due deference to the court, I have a man here who’s arguing for his life. . . . I can’t effectively represent this man. . . . I can’t follow this order,” Adam told Zagel. “I’m willing to go to jail on this.”

Chicago defense lawyer and former federal prosecutor Larry Beaumont said the judge ruled over a “fundamental concept,” in federal court.

“You can only argue from facts that are in evidence,” Beaumont said.

Again, kudos to the Adams men.

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By admin, June 16, 2010 7:10 am

According to a survey of more than 600 federal trial judges conducted by the Sentencing Commission, from January through March of this year, mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, reports the National Law Journal yesterday

The results of the survey are available here.

Survey

The survey also allowed judges to write out comments.

The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent—a 67.8% response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79% of those sentenced during fiscal 2008 and 2009.

Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76%), receipt of child pornography (71%) and marijuana (54%). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.

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By admin, June 9, 2010 8:40 am

The U.S. Attorney in Boston announced a new task force and “push” on civil rights prosecutions as part of a broader overall emphasis by the Obama Justice Department. Additional agents and prosecutors were appointed. The rationale is to assist victims who it is felt are afraid to come forward based on a lack of prosecution priorities. No word yet whether similar actions will take place in other cities. Interestingly, the DOJ included in the crimes to be prosecuted police misconduct. Based upon some stories recounted in the press here in the Eastern District about clear police misconduct, including a federal case involving local attorneys Krista Hart and John Balazs, United States v. Pruitt et al., CR-s-08-103 LKK, (charges dismissed after Sacramento Sherrif’s detectives Rose and Barry were caught in a lie about undercover tapes), perhaps a unit should be created here in the Eastern District. It seems to me it would make sense to beef up these prosecutions nationwide. A press conference announcing such a team would dramatically alter any cavalier attitude which can be quite prevalent among law enforcement when there is no such federal presence or watchdog. There is such a need here in the Eastern District

Civil Rights Story from Boston.com is here. ahref=”http://www.boston.com/news/local/massachusetts/articles/2010/06/09/new_team_to_target_civil_rights_violations/

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By admin, June 8, 2010 11:17 pm

A government prosecutor using “scare tactics” to pressure someone into not supporting a suspects defense might violate the Sixth and Fifth Amendment and result in a dismissal of charges. This is something that needs to be monitored here in our district.

In United States v. Stein 541 F.3rd 140 (2nd Circuit 2008), the very high profile prosecution of the giant accounting firm KPMG for its involvement in the Enron disaster, an angry federal district judge dismissed all charges–and took other actions also–against 13 otherwise guilty defendants based upon government misconduct. The 2nd Circuit upheld the dismissals. Specifically, the DOJ told the company managers that in exchange for not indicting the company itself–capital punhsment for a business entity–the firm would have to not pay attorney fees for employee targets. The problem was that KPMG had an arrangement to pay the attorneys fees for targets. KPMG complied; employees either cooperated or proffered because they didn’t have attorney fees. Yes, they could have had appointed counsel, but the Constitution actually allows counsel of their choice, and if they otherwise had funds for counsel, the government could not force them to appointed counsel. “The Sixth Amendment right to counsel includes not only an indigent’s right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing. In a nutshell, the Sixth Amendment protects against unjustified governmental interference with the right to defend oneself using whatever assets one has or might reasonably and lawfully obtain.”

What might be useful from the case, decided late 2008 and not yet used in the Ninth Circuit, is the point that a Sixth Amendment violaiton–so severe that charges were dismissed–occurred prior to charging. As well, the Fifth Amendment Due Process right was violated by government conduct–pre charging. Finally, it is a fair use of the opinion to state that any time the government intimidates a financial supporter or someone who might post bail for a federal criminal defendant–then dismissal might be the remedy for that violation. This opinion keeps the government from being such a bully. Let’s use it.

Interesting as well, the district judge suppressed proffer statements made by these defendants, as a sanction.

As a Sacramento criminal defense attorney who has seen his share of government bullying, this case is an added tool in our arsenal.

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By admin, June 7, 2010 11:19 pm

As a criminal defense attorney in Sacramento, I have some concerns about this week in Washington D.C. Possibly this week the Supreme Court will issue its opinion in Pendergrass v. Indianaand criminal trial attorneys wait with both hands on their cross examination tool belts. I know my law partner, noted Sacramento criminal defense lawyer Steve Plesser, says they’ll have to pry the Confrontation crucible out of his cold dead hands……….

What is at stake is whether an expert may testify on the results of scientific testing conducted for that case–think autopsy–when that expert did not perform the tests. Specifically, in this case, a supervisor did the testimony, but not the testing. The Indiana Supreme Court allowed it, somehow distinguishing the recent Supreme Court opinion apparently in conflict, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). An appellate court in California actually ruled the other–and probably correct– way, but that opinion is under review in the California Supreme Court (see below).

The defense argument is pretty simple: the 6th Amendment. The jury, the defendant, and maybe a few spectators, would like to question the person who DID the test. It is a “trial” after all.

The Indiana court reasoned that Melendez-Diaz v. Massachusetts leaves it “up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” The State of Indiana is asking the Supreme Court to allow– and this is a quote– “prosecutors to implement that decision in ways designed to conserve crime-fighting resources while protecting the rights of defendants.” Preserving crime fighting resources has always been part of the equation for wiping out a bedrock Constitutional Right. Like using the supervisor who supervises the whole lab and not the lab tech. That kind of resource conservation.

This is significant for 6th Amendment purposes when one looks at the problems that have occurred with lab results in criminal cases. The FBI lab in the 1990’s comes to mind, where whistle blower Frederick Whitehurst became the FBI’s Benedict Arnold and testified to Congress that lab techs simply made up results. And, their supervisors signed off on them. Think about the recent lab scandal in San Francisco. Interestingly, the lab tech there was at the center of a scandal in Seattle a year earlier, and was fired. As the manager of the state toxicology lab, Ann Marie Gordon repeatedly signed false statements over nearly seven years, under penalty of perjury, even though she didn’t do any such tests. http://www.seattlepi.com/local/325706_dui31.html. Scandals similar to these occur all the time across the country.

To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California as that case vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal. Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t.

So, we sit and wait to see if law enforcement resource conservation pulls the curtain down on the 6th Amendment.

Resource conservation has caused –to quote Al Gore– confrontation to “hang in the balance.”

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By admin, June 5, 2010 9:24 pm

Just read the Supreme Court holding that Mr. Van Chester Thompkins knowingly and voluntarily relinquished several constitutional rights in a police station–fortunately he had 2 cops present as witnesses. Berghuis v. Thompkins. Van Chester Thompkins. Remember his name school kids. He is a murderer. He murdered Ernesto Miranda. With help from 5 folks in black robes.

Here’s some of the rub. Justice Stevens in dissent in 1984 in Oregon v. Elstadt (dissenting from the first woman Justice, O’Connor’s scaling back of Miranda), called Miranda’s silence protection a core constitutional requirement that protects every American citizen against the kind of tyranny which flourishes in other societies. I think he was saying that Miranda’s protection is something uniquely American, and in a good way.

Probably because a confession is universally treated as damning and compelling evidence of guilt, it is likely to dominate all other case evidence and lead a trier of fact to convict the defendant. A confession is therefore an exceptionally dangerous piece of evidence to put before anyone adjudicating a case. In a criminal justice system whose formal rules are designed to minimize the frequency of unwarranted arrest, unjustified prosecution, and wrongful conviction, police-induced false or mistaken confessions rank amongst the most fateful of all official errors.

As many have recognized, the problems caused by police-induced false confessions are significant, recurrent, and deeply troubling. Police elicit false confessions so frequently that social science researchers, legal scholars, and journalists have discovered and documented it to be an epidemic; interesting, because when the only witnesses are officers and convictions result, it is hard to imagine they are getting a true reading on the real numbers involved. (See The Problems Of False Confessions by Richard A. Leo The Champion December 2007 p. 30) http://www.nacdl.org/.)

Law enforcement are trained on the psychology of getting confessions. Interrogation is a scary concept, often taking place in a coercive atmosphere (”Either you tell us now what happened or we will have to arrest you;” and “If you don’t tell us what happened we will call CPS to take these kids away and you’ll never see them again.”) Those types of things. Now the police know well that a suspect’s choice is to no longer remain silent. She must risk everything and state in some magic words for the officers that she no longer wants to passively enjoy her Constitutional rights but wants to be pro active about it. How, is anybody’s guess. After years of having my clients and witnesses look at the written report by the police of their statements–which they then universally exclaim “I didn’t say that,” I have started to listen to my clients. They always say “Man, if that ever happens again I am not saying anything, and I mean anything. If I say nothing, what can they do, arrest me? So what, I am definitely not saying anything at all because they can just write down whatever they want.” So, hearing this, I often advise them that indeed, saying nothing, and I mean nothing, is in fact the better course. Think a verbal “Berkeley limp” here.

No longer a good idea.

Now I still don’t know what magic words to tell them to use to safeguard these monumental Constitutional rights which are in fact uniquely American. I kind of feel that the common person shouldn’t have to guess at which words are the magic ones for the experts in law enforcement and the Supreme Court. I suppose variations like ” My lips are sealed,” “Loose lips sink ships” and “See no evil, hear no evil, speak no evil,” will also be acceptable. I hope. The ruling from the high court is a tad murky when it comes to miming your invocation. So making a motion of locking your lips and then tossing away the key may not hold up.

Justice Kennedy was very clear that your silence does not imply you want to be silent. Even over several hours. That is too ambiguous. You could be silent because you want to not be silent and the longer you remain silent the more it means you do not want to be silent. Justice Soto Mayer, on the other hand, in her dissent states the decision stands Miranda on it’s head, and that requiring people to unambiguously invoke their right to remain silent, counterintuitively, requires them to speak. She was O’Connor’s replacement. Good news there!

Seriously, you gotta be kidding me you guys.

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By admin,

The excellent blog by John Balazs about the happenings in Sacramento and Fresno federal courts provides the district’s best reference for news in the district. (Eastern District of California Blog http://edca.typepad.com/). In this blog, I will bring in to our district a discussion of interesting matters in federal courts elsewhere, hoping to import some benefit from the federal criminal defense strategies employed.